December 2012 Archives

OUI Charge in Dedham District Court After Collision with State Trooper

December 22, 2012

police blues.jpgThe Dedham District Court will hear charges against Lillian Vespa-Malkin as a result her collision into the rear of a Massachusetts State Police cruiser on Thursday night. The initial report in the Needham Patch indicated: "[t]here is no word on whether the driver will be charged." By 11:30 a.m. the Dedham Patch's update said that she had been arrested and charged with OUI, Operating to Endanger, and a civil marked lanes violation. According to the the Dedham Transcript Ms. Vespa-Malkin was arraigned in the Dedham District Court yesterday.

As for the factual allegations, the articles say that The trooper was working a highway construction detail when Ms. Vespa-Malkin drove her SUV into the driver side rear quarter of the cruiser and caused severe damage to the cruiser. Of course Ms. Vespa-Malkin's vehicle must have sustained heavy damage too. The trooper was treated at the hospital with neck and back injuries and released. The articles do not reveal whether Ms. Vespa-Malkin suffered any injuries, but at a minimum, she must have been severely shaken.

Responding troopers surely investigated and wrote reports that outline the bases for the charges against Ms. Vespa-Malkin. The news reports, however, contain no information on this topic. Some things, however are very clear. 1) Both the trooper and Ms. Vespa-Malkin are lucky that the injuries were not even more serious. 2) These incidents happen far too often. 3) Ms. Vespa-Malkin is in a lot of trouble and needs experienced legal assistance.

Here are some things that will surely be explored. Were there any field sobriety tests? What is the value of such tests for someone who was seriously shaken up from a car crash? Was there a breath test? Was Ms.Vespa-Malkin taken to the hospital? Was there blood drawn and tested for alcohol? Did she make incriminating statements regarding drinking? Does she have witnesses that could help her prove that she was not impaired? Was there any alcohol containers in her vehicle? Did any other vehicles that had been following her stop? What did they see? Were there any construction workers present? Did they see anything? Did the trooper have his flashing blues on at the time of the accident. Was his vehicle in the breakdown lane?

Most importantly, was this just an accident or was it a crime? Perhaps she took her eyes of the road for just an instant. At 60 mph you travel 1/8 of a mile in just 7.5 seconds. Perhaps there is some other reasonable explanation. I expect that someone smelled alcohol. If there had not been such an odor, would there be charges? Probably. If a trooper's vehicle gets hit, the other driver is going to be charged with something. The odor of alcohol will clinch the OUI charge, but proof at trial is another thing. It is entirely possible (again, I have not seen the reports at this point) that alcohol had nothing to do with it, but with all the press involved in these re-occurring events, Ms. Vespa-Malkin has a significant legal challenge on her hands.


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Search and Seizure Issues in West Roxbury Auto Stop and Drug Arrests

suboxone.jpgTwo men will be prosecuted on drug charges in the West Roxbury Division of the Boston Municipal Court as a result of an automobile stop last week. According to the West Roxbury Patch undercover Boston Police Officers saw Robert Clarke using his cell phone outside the Washington Street Burger King around 8:15 p.m. The officers apparently knew Clarke from previous drug-related arrests. Eventually, Michael Dixon drove up and Clarke got into his car.

The pair headed West on Washington Street towards Dedham and the police had trouble keeping up with the speeding car. The police allege that the car stopped at the Grove Street red light and the men leaned towards each other. The light changed and the car did not move. The undercover officers allege that they watched the men and eventually sounded their horn. By that time, however, the light had changed back to red, and Dixon drove though the intersection anyway.

The police pulled Dixon over, ostensibly for speeding and running the red light. According to the Patch, they ordered the men out of the car, pat frisked them and searched the car. The article says that the police recovered eight pills in the car and some pills, a pill bottle, and $280.00 "in one of the suspect's pockets."

Clarke was charged with possession of class B and C drugs. Dixon was charged with distribution and possession with intent to distribute class B and C drugs.

ISSUES:

Just because a person has a drug history does not mean that the police may stop and search them at any time. Here, there was a little more than just that, but was there enough? A man (with or without a drug history) on his phone outside a restaurant getting picked up for a ride is not enough to stop and search. So the police followed to see if anything was going on.

The legal questions will be: 1. Did they see enough to warrant the stop of the car? 2. Did they see enough to warrant the order for them to get out of the car? Did they see enough to search them and search the car?

Obviously, if the driver committed the motor vehicle offenses, the police were justified in stopping the car. As with many allegations of civil motor vehicle violations, the driver may not agree that he was speeding and may not agree that the light was red when he went through the intersection. If the driver contests these allegations and prevails, then the stop would be unjustified and the drugs suppressed. In my experience, however, this is a long shot.

The other questions are closer calls. A valid stop, without more, does not give the police grounds to order people to get out of their vehicle. A ticket should be issued and the occupants should be allowed to go on their way. So what more did the police have? The men were allegedly leaning towards each other at the light. This could have been a drug deal, or it could have been any other innocent behavior. The men will need experienced defense counsel to demonstrate to the judge at a Motion to Suppress, that this does not justify the exit order.

"Pat downs," are usually justified as being necessary for the officers' safety. They are performed to determine if a person has a weapon. Here there did not appear to be any reason for the men to be out of the car, nor did there appear to be any reason for the officers to be afraid that they may have weapons.

Why were the police searching the car? There is a big difference between a police suspicion and probable cause to search. Obviously the police suspected Clarke because of his history, and they will say that using a cell phone to contact a dealer is a common practice. They will also say that the men leaning in together over the console
looked like a drug deal. All this adds up to a suspicion. These observations,clearly, could be innocent behavior that do not add up to probable cause. Zero plus zero equals zero. Should every person that uses a cell phone for a ride who gets in a car and leans towards the driver at a red light, be ordered out of the car and searched? Should every person that provides the ride in these circumstances, have his car searched?

These are just the search and seizure issues. What about the issues of drug dealing? Where is the evidence that Dixon sold drugs? Where is the evidence Dixon possessed drugs with the intent to distribute them? Having eight pills and $280 may not be enough.

In any event, this case is not as open and shut as it may first appear, when scrutinized with an eye towards defending the accused men.

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Husband and Wife Charged with Assault and Battery with Dangerous Weapons (Rolls of Quarters)

Temp 018.JPGThe Walpole Police were called to the Main Street Shopping Center last Tuesday on a report of a melee outside of Supreme Pizza. According to the Walpole Times, Chris and Yvonnem Antonopoulos parked outside the pizza place and made insulting gestures through the glass from the sidewalk outside. The target of their gesticulations appears to have been the shop's owner. Their motive appears to be revenge. Apparently, the owner had previously given them a "letter of disinvite," banning them from the restaurant.

The Times does not report the owner's reasons for banning the couple from his establishment, but proprietors may forbid anyone they wish to forbid from their private property. A "letter of disinvite" is simply written evidence that property owners oppose another's presence and have made their wishes known to the target of their opposition. This is an essential element of the criminal charge of trespass.

It appears that Mr. and Mrs. Antonopoulos knew this and were abiding by the letter by staying on the sidewalk. Oddly enough, while they were avoiding the possibility of a misdemeanor trespass charge, they were each squeezing a roll of quarters in their fists for defense in a fight against the owner should he come outside. And come outside he did.

One may wonder why he did not simply call the police. But, the taunts had their desired effect and the pizza man came out and engaged Mr. Antonopoulos in combat. The two went to the pavement followed by Mrs. Antonopoulos who allegedly bit the victim's leg. To make matters worse for the husband and wife team, a 71-year-old man came out to attempt to break up the rumble and Mrs. Antonopoulos allegedly attacked him for his efforts.

The couple drove away leaving the "battered" victims behind. They drove towards the center of town and and were apprehended adjacent to the police station. Since there was no investigation of Operating Under the Influence, we may rule out alcohol as a factor in the couple's decision making.

To be fair, it would be very interesting to know why the shop owner banned them. Was it justified or not? Did they have good reasons to be upset? In addition, the pizza man and his helper apparently agreed to do battle with them, but did not get charged. The article says that the police determined from witness accounts that the Antonopouloses were the instigators. But they never attacked. Its like saying: "he started it by calling me names."

As it stands the couple must defend themselves in the Wrentham District Court against charges of Assault and Battery, Assault and Battery with a Dangerous Weapon, Assault and Battery upon a Person older than 60 years, Disorderly Conduct, and Disturbing the Peace.

I'm not too sure if holding a roll of quarters gives you more punching power, but the Assault and Battery with a Dangerous Weapon charge under these circumstances raises an interesting question. Since this charge requires proof that the accused battered another with a dangerous weapon, it requires proof that the weapon actually touched the victim. If the Antonopouloses had their fingers wrapped around the rolls of quarters and those weapons never actually made contact with the victims, can the charge be sustained? This is an important issue because this charge is a felony.

It should also be noted that the charge of Assault and Battery upon a person over the age of 60 years is also a felony with a possible state prison sentence of 3 years. I doubt very much if the couple in this case will be facing incarceration, but they surely would be well advised to seek experienced criminal defense counsel.

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