April 2012 Archives

OUI, Operating to Endanger, and Drug Possession Case has Pros and Cons

tel pole.jpgOUI Alcohol, Operating to Endanger, and Drug Possession charges were filed in Lynn District Court against a Winthrop man after the Swamscott Police found him outside of his wrecked pickup truck on Wednesday.

I mention this simple case from a Swamscott Patch article because it illustrates the common situation of having a case that has some good facts that get dragged down by some not-so-good ones. The article says that Salvatore Lamattina hit a utility pole with his pick-up truck on Stetson Drive in Swamscott on April 25. When the Swamscott Police arrived, they saw that the driver's-side front tire and suspension had separated from the vehicle. Lamattina was standing outside of his truck and was unsteady on his feet. Lamattina told the officers that he crashed because the wheel had fallen off the vehicle. A hand-held field breathalyzer showed Lamattina's blood alcohol level at .06.

So far, so good for the defense. 1) The legal alcohol limit is .08; 2) An unexpected mechanical malfunction should not result in a conviction for OUI or Operating to Endanger; and 3) A person recently involved in a crash of that nature could reasonably be expected to be shaken up and unsteady.

But there is more. In addition to telling the police about the wheel falling off (which they did not believe because of certain skid marks), Lamattina told them that he had taken the drug Suboxone earlier for a leg injury. Even if your blood alcohol level is below the legal limit, you may still be convicted of OUI especially if you have mixed drugs with alcohol and the consumption of the mixture negatively affected your ability to operate safely. Lamattina's statement gave the prosecution all they need to prove mixing drugs and alcohol.

In addition, while having three cold beers and three empties in the truck may not negate the relatively low alcohol level, it does add a certain negative impression. On top of that, the police found pills in the car that they claimed were the drug Methadone. If he were not authorized to have them, he has a problem with the drug possession charge, and if he were authorized to have them, a jury may understand the meaning that goes along with Suboxone and Methadone - treatment for heroin addiction.

The drugs may not have had anything to do with his driving, or may have had a lot to do with it. Either way they just make what could have been a good defense case a much more difficult one.

Lastly, I should note that the results of a portable breath test are generally not admissible at trial. Only breath tests properly administered on properly tested and maintained breathalyzers are admissible. So, even that positive factor is no help.

All is not lost, but Lamattina has a challenging road ahead. He will require an experienced criminal defense attorney to steer the way.

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Stoughton Police Seek Driver Who Hit Utility Pole and Fled Scene

witness stand.jpgLeaving the Scene of Property Damage. That is the charge that would be brought against the driver of a Jeep that hit a utility pole in Stoughton on Friday. That is, if the police are able to find out who was driving. It appears that the driver parked the jeep after the crash and left on foot.

This short story from the Stoughton Patch/Journal has some interesting legal issues. First of all, the police will undoubtedly find the owner of the Jeep and ask questions. He/she will be in the position to make or break the prosecution's case at this point. Admit and you will be charged. Decline to speak (as is your Constitutional right) and the prosecution will have no evidence. Being the owner of the car does not mean that you drove it.

The other issue is highlighted by two sentences in the article: "[E]ven if found by police, the driver may not be arrested on a charge of leaving the scene of an accident as the property damage involved does not make it an offense to be arrested for. . . . Such a charge would be filed by a summons." I am not aware of any law that distinguishes between property types making an arrest allowable for one and not the other. I do know, however, the reason for the comments.

The law applicable to the charge of leaving the Scene of Property Damage states: "[a] summons may be issued instead of a warrant for arrest upon a complaint . . . if in the judgment of the court . . . there is reason to believe that the defendant will appear upon a summons." The article implies that the police would not be allowed to arrest the driver. This is not the case. If the police find out the identity of the driver, they will bring an application for a criminal complaint to the court. The court will then decide whether to issue a summons or a warrant.

A summons would be sent to the driver's address and he/she would be ordered to appear in court. A warrant would give the police the authority to go and arrest the driver and bring him/her to court in handcuffs. According to the statute, a warrant would be issued if it appeared that the driver would not obey the summons to appear on his/her own. As it stands now, in this case, the driver fled the scene of the accident, hence his/her reliability may be in question.

There is another important issue that arises when the court determines that a summons is sufficient. If the driver is not arrested, for what event will the driver be summonsed to appear? In most cases, where the crime is a misdemeanor, no arrest has taken place, and there are no imminent threats, the accused has a right to be summonsed for a hearing to determine if the complaint should issue at all. [This is true only if there is no imminent threat of a) bodily injury, b) commission of another crime, or c) flight from the commonwealth]. Sometimes, however, the summons is mistakenly issued for an arraignment.

Hearing vs. Arraignment. This is a very important distinction. When someone is arraigned - has the charges read in court - that information is entered into the Massachusetts Board of Probation data base. Although technically not a "criminal record," unless there is a conviction, it is an entry on one's "probation record." Even if acquitted in the future, the charge will remain on this record for a lifetime (with few exceptions).

A summons for a show cause hearing is another matter. Since the charge is not read in court, there is no entry on the Massachusetts Board of Probation data base. The accused has an informal hearing with a magistrate during which the police will attempt to establish probable cause for issuance of the complaint. This is not a high standard. Even if there is probable cause, however, it is very important to appear and defend oneself with an experienced criminal defense attorney at this stage. It may be possible to reach a favorable conclusion at this stage and avoid the next step - arraignment and creation of a record. Followed by criminal litigation, and possibly a trial.

As for the driver of the Jeep: if a summons is received, be sure that it is for a hearing, and show up as scheduled. Preferably with competent representation.

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