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.

Lawyer remains jailed; charged with OUI, driving with suspended license and giving false name

A north of Boston attorney has found herself on the chair most often occupied by her clients. At least, that is, in court. Otherwise, she is in custody, held without bail, for driving offenses.

Tracy T., 32, of Revere (hereinafter, the “Defendant”) is being held without bail on what the Commonwealth alleges to be her third drunk driving charge. Well, that was one reason.

The other reason, according to prosecutors, is that she gave false information to the patrolman who stopped her.

The alleged event took place in Marblehead last Thursday morning. The Defendant was pulled over by police. Upon questioning, she is said to have given the police a phony name, date of birth and a Social Security number that turned out to be that of an elderly man. She said she didn’t have her license on her, then told the officer that it was expired.

When police determined who she was, The Defendant became apologetic and then allegedly gave the kicker line, “You aren’t going to arrest me, are you? I can’t get arrested. I am an attorney,” according to police.

Given that her line of argument was not persuasive under the circumstances (which allegedly include her failing two of three field sobriety tests and then registering a .22, more than three times the legal limit, on a portable Breathalyzer, the answer was in the affirmative.

Sensing an odor of alcohol and claiming the Defendant was speaking with a “heavy” tongue, the officer took her into protective custody.

The Defendant allegedly made the further statement that she had stopped drinking around 1 a.m.; the arrest took place just short of 11:30 a.m.

The Defendant continued to plead with the officers not to arrest her, telling them, “I know the system, you don’t have to book me,” and urging them to put her in protective custody,” prosecutor Scott Dullea said during her arraignment in Lynn District Court. She also allegedly described the penalties she is facing if convicted, including mandatory jail time of at least 150 days and a 10-year license loss, to the officers, asking, “You really want me to go to jail?”

The Defendant is also facing charges of driving drunk while her license was under suspension for a prior drunk-driving conviction last year in Cambridge, giving a false name and speeding. Dullea said he’s trying to obtain copies of drunk-driving arrest records in Florida and Tennessee.

Dullea filed a motion seeking to have The Defendant held without bail for 90 days or until trial as a danger to the public.

Judge Dunbar Livingston granted the prosecutor’s request, however, and ordered the Defendant remain in custody at Framingham Prison until a full dangerousness hearing
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Attorney Sam’s Take:

This is a big problem for the Defendant.

Not only is she looking at imprisonment if convicted (as well as awaiting trial) and the loss of her driver’s license, she is also looking at potential repercussions to her license to practice law, not to mention that notoriety such as this is not exactly good for business.

The Defendant is a well known criminal defense attorney. Her choices at the time of her arrest, therefore, seem even more surprising.

She knows better than to try giving false information to the police. Her experience should tell her that it will only make the situation worse. One would imagine she would also know better than to make the statements she made. Finally, she knows that she has the right to refuse the breath test as well as the field sobriety tests.

Yet….she did what she did.

You may be puzzled by this…was it the alleged alcohol?

There is another possibility you should consider and take to heart.

Most of us know the feeling in the pit of our stomach when we are being pulled over by the police…even if we feel we have done nothing wrong. It is fear.

I cannot tell you how many clients who have known better than to make statements to the police that will come back to haunt them but do so anyway. It is a typical way of dealing with the fear. One does not think their most clearly in such circumstances.
I have warned you many times in this blog not to make a bad situation worse by trying to outsmart or out talk the police. The fact is, it is an easy suggestion to make, but can be a bit hard to follow.

The solution?

Come to the conclusion on the “plan of action” before the fact.

Determine right now how you would handle the situation and try to grind it into your consciousness so that it takes little to no thought at the time of the stop. Maybe make it a mantra or a little song you sing down the highway, “Not gonna make it worse, no bad judgment for me…don’t try to outsmart folks in blue…perhaps they’ll let me be…”

Remember…your decision at that moment can make the difference between prosecution/no prosecution as well as jail/no jail. Quietly comply with the police, but do not offer extra tidbits like false information, cajoling, fighting and…if you know you have been drinking…politely decline the breath and field sobriety tests.

The full articles of this story can be found at http://www.salemnews.com/punews/local_story_114215002.html and http://www.thedailyitemoflynn.com/articles/2009/04/25/news/news02.txt

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