Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Boston-area Law Enforcement Endangered By Drivers Needing Defense Lawyers

It has been a difficult and dangerous time for Boston-area police officers. While perhaps not intentional, recent tragedies and near-tragedies remind us that some of those we represent as defense attorneys often endanger not only themselves, but everyone around them when driving dangerously.

Including police officers. Let’s look at two recent examples.

You have probably already heard about State Police Captain Richard J. Cashin, 52, father of four, who died last Wednesday when his cruiser crashed into a utility pole. It has now been determined that he was likely enroute to help Saugus police pull over a car that was reportedly driving erratically.

About a mile and a half from the crash site, Saugus police had pulled over the driver who, police later found out, was texting while driving, said Saugus Lt. Michael Annese. He believes it’s likely that is where Cashin was headed.

State Police spokesman Dave Procopio said “Based on the proximity of the time and location and the type of police officer Capt. Cashin was – always looking to assist other officers – you could draw a reasonable inference that he had begun traveling up Route 1 to look for an erratic driver, who posed a threat to the public, at the time he lost his life,” Procopio said.

Witnesses told police the car’s lights and sirens were not on prior to the crash, Procopio said.

Procopio offered the following timeline of the minutes before Cashin’s crash:

1:42 a.m. and 59 seconds: Driver calls state police from a cell phone to report a possible drunk driver on Route 99 headed toward Route 1 in Saugus. State police notify Saugus police. 1:45 a.m.: Saugus police put out a broadcast transmission report of the erratic driver, possibly headed toward Route 1. 1:47 a.m. and 38 seconds: Driver calls state police to report the car crash that claimed Cashin’s life.

Ironically, Saugus officers pulled over the driver, but never cited the woman, who was distraught over a blow-out with her beau, because they responded to the Cashin crash, according to police.

Cashin was shift commander of Troop A, which covers northeast Massachusetts. In 1980, Cashin joined the old Metropolitan District Commission police, which merged with the State Police in 1992. State police are investigating the crash. State Police Col. Mark Delaney said yesterday that Cashin is believed to be the highest-ranking state trooper to ever lose his life on the job.

“His memory will be with us always,” Delaney said.

He will be laid to rest today.

While the late Captain Cashin is the most recent, he is not the only example of Massachusetts negligent driving leading, directly or indirectly, to danger for police officers.
Earlier this month, a man whose Lincoln Town Car crashed into a parked police cruiser one fine night narrowly avoiding hitting a police officer.

This was the tale of Paul J. G., 55, of Fitchburg (hereinafter, the “Defendant”), alleged Massachusetts drunk driver. He ended up being was charged with operating under the influence of alcohol, negligent operation of a motor vehicle and a lights violation. He is due back at Fitchburg District Court on March 3rd.

According to court documents, Fitchburg Police Officer Paul McNamara responded to a report of a car crash at the intersection. The crash involved the Town Car and a marked police cruiser.

Officer McNamara said in his report that a cruiser driven by Officer Michael J. Sevigny was parked and blocking the roadway near the intersection because a utility truck had overturned near the Birchwood Manor Nursing Home. The lights to the cruiser were on.

Several heavy-duty wreckers were on the scene trying to right the truck, and Officer Sevigny had parked so as to provide a safety zone for the crew working there.

Shortly after 9:15 p.m., the vehicle driven by the Defendant entered the intersection and crashed into the cruiser, narrowly avoiding hitting Officer Sevigny, who was outside the vehicle at the time. Officer Sevigny, whom Officer McNamara described as being shaken up by the events, said he could only say that he saw both vehicles travel backward after the crash.

Officer McNamara noted in his report that although road conditions were poor owing to the snow and ice storm, he did see several vehicles make their way safely through the intersection. He said they were able to drop their speeds as they made their way along the road and to stop in time to avoid hitting other vehicles.

As he spoke with the Defendant, Officer McNamara said, he could detect the odor of alcohol about him.

He asked the Defendant if he had had anything to drink, to which the Defendant, clearly not a reader of this daily blog, replied, “Two to three beers at home.”

Officer McNamara performed several field sobriety tests, and said the Defendant did not do very well on them. He was placed under arrest and taken to police headquarters for booking.

Attorney Sam’s Take:

While I, at times, have been critical of law enforcement and sometimes make light of criminal justice happenings around town, rest assured that its life-and-death seriousness is not lost on me. It is serious for all involved including the police officers and the victims. My role as a criminal defense attorney, though, is usually to remind everyone else in the room that it is a serious matter for the defendant, also a human being, as well.

In today’s daily blog, we see two stories in which the accused could have easily walked (or driven) away from these situations with homicide charges.

Allegedly.

In the case of the Defendant, this neither strains logic nor takes much imagination to envision. Had an officer been in the struck cruiser, or had the Defendant’s vehicle hit a standing officer, the blame for the result would have rested on the Defendant.

If one is breaking the law, such as driving while intoxicated, and an accident results, causing the death of another person, the alleged drunk driver can be, and usually is, prosecuted for the vehicular homicide.

In the case of the late Captain Cashin, if it could be proven that he was on his way to assist with the negligent driver, and if a causal relationship to his accident could be connected to that driver, the prosecution (civil and criminal) could result. In this case, however, it appears that the driver remains unknown.

By the way, in case you are wondering, texting while driving can cause one to drive negligently, as it allegedly did in this case. As a result, many jurisdictions have outlawed used of a cell phone while driving. Even without such a statute, doing anything that takes the attention off driving what can easily become an extremely heavy weapon, if it causes negligent or dangerous driving, can be prosecuted.

One last little tidbit. I assume you know, as the Defendant apparently didn’t, that you have a right to remain silent when the officer asks questions like if you have been drinking. However, be advised that you also have a right not to submit to field sobriety tests just as you have a right not to take a breathalyzer when accused of driving drunk in Massachusetts.

The full articles of this story can be found at http://news.bostonherald.com/news/regional/view/2009_01_29_Police:_Trooper_likely_in_pursuit_of_texting_driver/srvc=home&position=5 and http://www.telegram.com/apps/pbcs.dll/article?Date=20090130&Category=NEWS&ArtNo=901300350&SectionCat=NEWSSEVEN03&Template=printart

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