October 2012 Archives

Dedham District Court Arraignments for Men Caught in NORPAC Drug Bust

mushrooms.jpgThe Norwood Police and members of the Norfolk County Police Anti-Crime (NORPAC) task force broke down the door at 110 Pellana Road, Norwood on Wednesday and arrested four men inside. According to Boston.com, and the Norwood Patch, the police had a warrant based upon upon information that the resident, Stephen Petrosh, had been selling marijuana. They attempted to execute the warrant (search the place) by knocking first. The police said that they could see people inside that were not responding to their knocks, so they broke the door down.

When they got inside, the officers found Petrosh along with three other men: Joseph Carbone, Joseph Spaziani, and Justin Schrekenghaust. They also found LSD, Psilocybin (mushrooms), marijuana, Ritalin, Lyrica, Varenicline, weapons, ammunition, cash, scales and other drug paraphernalia.

Petrosh, Carbone, and Spaziani were each charged with possessing the drugs (except the prescription medication) with intent to distribute them as well as unlicensed possession of ammunition. Schrekenghaust was only charged with possession of LSD. Apparently, none of the alleged weapons were illegal. Petrosh also has a drug case already pending in the Concord District Court. All of them made bail and were due in the Dedham District Court for arraignment the next day.

Issues:

1. I expect that the search warrant was based upon Petrosh's alleged sales to a cooperating informant. It should be noted that unless that informant is identified, there will be no charge for that sale, and evidence of that sale will not come into evidence against Petrosh's. Nor will the evidence of his pending case be allowed into evidence. So proof of an intent to distribute must be based on the amount of drugs found (the articles do not reveal this information) and the other indicators of distribution -- usually scales, money packaging materials, notes/ledgers, etc.

2. Each man arrested stands in his own unique defensive position. Surely, each would be well advised to retain experienced defense counsel. Presence in the apartment is not sufficient to prove possession of drugs, or an intent to distribute them. The articles do not divulge the reasons that the police charged three men with possession with intent to distribute, and one with simple possession. One or more of the three men with the more serious charges may not have actually possess the drugs at all. It could be that the police lumped them all together for the Dedham District Court to sort out.

3. Although Petrosh made bail and was allowed to walk into the Dedham District Court on Thursday morning, there is a fair possibility that the prosecutors there would try to be sure he did not walk out. This is because of his pending case in Concord. The Concord District Court probably gave him a "bail warning" - explaining that that if he were arrested while awaiting trial, he could be held for up to 60 days without bail. If so, the law would allow the Dedham District Court to revoke his Concord District Court bail, and lock him up. If Petrosh spoke with counsel in advance, he would have been prepared and may have retained his liberty.

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OUI Arrest of Driver Parked in Travel Lane Presents Second Offense Issues

License.jpgOperating Under the Influence charges were brought against Alicea-Rove Velazquez early last Wednesday. According to the Hingham Journal, Hingham Officer Michael Rockoff found a car stopped in the right travel lane of Route 53 at approximately 3:22 a.m. that morning. When he approached, he saw Velazquez asleep in the driver's seat. According to the article, the transmission was in "park" and the key was in the "on" position. It does not say whether the engine was running.

Rockoff banged on the roof of the car for a couple of minutes to awaken Ms. Velazquez. The officer then noted an odor of alcohol, an inability to focus, and glassy eyes. When she got out, she was "unsteady on her feet." These are fairly standard observations involved in these arrests.

The article says that she was getting out to perform "field sobriety tests." It does not say which tests she did, or how she fared; it only says that the police determined that she was impaired. Hence, they either determined that she failed the tests, was unable to do them at all, or refused to try. It is my guess that it would not have mattered much. She was going to be arrested even if she did fairly well. The police don't take chances in these circumstances. It will be left up to the attorneys at court.

The police also determined that Ms. Velazquez had been convicted of OUI in New Hampshire in 2008. She was, therefore, charged with Second Offense OUI, .

This story shows that one does not need to be actually driving to be arrested for OUI. It has been argued that stopping and parking is the right thing to do if you determine that you should not be driving. This, however, is not a defense, nor does it always negate the "operating" element of Operating Under the Influence. At a trial, the judge will tell the jury that to satisfy the element of operation, there must be proof that the accused citizen did something (such as turning the key) that would set a vehicle in motion. For Ms. Vazquez this issue will need to be explored thoroughly.

The story also shows that out-of-state convictions may be considered first offenses. This does, however, raise challenges for the prosecution. If a person seeks trial on a Second Offense OUI, there will actually be two separate trials. In Ms. Velazquez's case, the first trial will be to determine her culpability while parked on Route 53. If she wins, that's the end. If she loses, however, there will be a second trial in which the prosecution will be required to prove beyond a reasonable doubt that she has been convicted in New Hampshire four years ago. This will require evidence from out of state.

It does not appear that Ms. Velazquez took a breath test. These articles usually tell us the results if one has been taken. Hence, she may have refused to take the test. This raises the stakes considerably with regard to her loss of license. Refusing the breath test on a second offense results in a loss of license for 3 years. If convicted, there is an additional 2-year loss of license. On top of that, once the license is returned she must have an interlock device (portable breath test) installed in her car for yet another 2 years.

If she wins her case however, she may have her full license back immediately. This should be the focus.

Obviously Ms. Velazquez and those in her position would be well advised to consult with an experience criminal defense attorney.

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