Violation of an Abuse Prevention Order – NOT Guilty

On October 16, 2016, NU, a 31 year old technician from Lowell was arrested and charged with Assault & Battery on his ex girlfriend. He was held overnight and on October 17, 2016 he was brought to Lowell District Court to be arraigned. He was arraigned on the Assault & Battery charge. His ex girlfriend was present and had applied for an Abuse Prevention Order (Restraining Order). The Court conducted a hearing and granted the Abuse Prevention Order. The order, among other things, ordered NU to have no contact, directly or indirectly, “in person, by telephone, in writing, electronically or otherwise” with his former girl friend. NU and his former girl friend had been fighting over custody of a dog.

On October 20, 2016 NU and his attorney (not Attorney Lewin) were having a telephone conversation. The attorney asked NU for NU’s former girlfriend’s telephone number. NU went to his iPhone, went into his text messages, got the last text message from his ex-girlfriend, hit the detail button, then hit the i (information) button on the screen to get her phone number. NU then read the phone number to his attorney. NU then put the phone up to his cheek and continued his phone conversation with his lawyer. When NU finished the phone conversation the screen on his iPhone reverted to the text message screen and NU saw that a location ping had been sent to his ex-girlfriend. This apparently happened when NU put the phone up to his cheek. This was a “cheek” call, similar to a butt call. Within ten minutes the police were at NU’s house and he was arrested for violating the abuse prevention order.

NU and his family retained the same lawyer. NU and his family became dissatisfied with the work that the lawyer was doing on the two cases (the original Assault & Battery charge and now the Violation of the Abuse Prevention Order charge) and sought out another lawyer. NU met with Attorney Robert Lewin from North Andover for a free 2 hour initial consultation. NU and his family retained Attorney Lewin to handle both cases.

Attorney Lewin immediately sought the telephone records from Verizon. The records showed that in fact NU was in a telephone conversation with his lawyer from 12:06 PM to 12:20 PM on October 20, 2016. The location ping that was sent from NU’s phone to his ex-girlfriend’s phone was sent at 12:14 PM on the same date. This clearly corroborated NU’s statement that this happened during his phone conversation with his lawyer.

The District Attorney refused to drop the charge. On January 17, 2017 the Violation of the Abuse Prevention Order charge went to trial in Ayer District Court. Attorney Lewin recommended to NU that this was a good case to try to a Judge alone – as opposed to a jury. NU signed a jury trial waiver and the case was tried before the Presiding Judge in Ayer. The ex-girlfriend testified to receipt of the location ping. NU testified that the sending of the ping was an accident and not done intentionally. Attorney Lewin had researched the law for the Judge and the law is clear that an accidental contact is not a crime. When the evidence was done and both sides rested the Judge turned to the Assistant DA and (agreeing with Attorney Lewin) said “The burden of proof is on the Commonwealth to prove that this was not an accident; what evidence is there that this was not an accident?” As hard as she tried the DA could not give an answer to that question. The Judge turned to Attorney Lewin and NU at the Defense table and said “I find you not guilty”. It doesn’t get any better. Attorney Lewin and NU left the Ayer District Court – knowing that the next day, January 18, 2017, the Assault & Battery charge was going to trial in Lowell District Court. The successful result in that case is reported in this blog under Domestic Assault Cases.

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