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.

T-Crash May Result In Alcohol Related Charges For Boston College Students

Tempers sure are flaring now that it is known that no serious injuries resulted from the collision between a Green Line MBTA train smashed into a jeep! Transit officials are crying “Foul!” against the athletes who had been in the jeep. Crimina-Defense-Attorne- Needing-type-Foul.

The crash took place this past Sunday around midnight as a Green Line trolley driver, traveling about 30 miles per hour, was heading westbound en route to stop at Greycliff Road and Commonwealth Avenue in Brighton. Yards from the Greycliff Road crossing, the driver says he noticed a black Jeep Cherokee at the intersection at Commonwealth Avenue.

According to an MBTA transit police report, the driver sounded the horn five times and then engaged the emergency stop. The jeep’s driver cut in front of the train as if attempting to make a U-turn onto Commonwealth.

WHAM!

The trolley struck the side of the Jeep, pushing it back onto Commonwealth Avenue. When the jeep stopped, according to the report, some of the its occupants got out, grabbed items that appeared to be alcoholic beverages, and then fled down Greycliff Road.

The Jeep’s driver is said to have then driven off onto Commonwealth Avenue before stopping a distance away.

Neither the trolley’s driver nor the passengers on the train were hurt.

Transit Police Chief Paul MacMillan also said that the eight students – three of whom are members of BC’s hockey team and one of whom is a women’s lacrosse team player –- will be cited for being minors in possession of alcohol after police found a bevy of alcoholic beverages inside the vehicle. The police indicate that they found “numerous open and unopened, “Bud Light” 12 oz beer cans along with numerous open and unopened, “Natural Ice” 12 oz beer cans.” Police also found a 1.75 liter bottle of Rubinoff brand vodka that was unopened.

According to police,their investigation revealed “blood smeared beer cans” were found at the point of the crash and on the track bed.

That’s not enough for the T, though. The MBTA wants the students to pay for the repairs to the train.

“These students should be held accountable for their reckless and dangerous behavior,” MacMillan said at the Kenmore Square station this afternoon. Transit police summarized the investigation in a four page report.

In a statement, the BC Athletics Department said no action will be taken against the players because no formal criminal charges have yet been brought against them.

“We are thankful that the injured students are recovering and the driver of the vehicle that was struck by the MBTA trolley had not been drinking before the incident,” the statement said. “At this stage, contrary to reports, no one has been charged. As is our policy, we will wait until the investigations are concluded before announcing possible disciplinary actions. ”

In the statement, the school said the driver was not drunk at the time of the collision. According to a Transit Police report, the driver told police that she had not been drinking because she is allergic to alcohol.

MacMillan said police will consult with Suffolk District Attorney Daniel F. Conley’s office about potentially bringing other charges against the students. He also said they may seek the driver’s medical records through a subpoena.

The driver and a passenger were rushed by ambulance to Boston hospitals.

Attorney Sam’s Take

“Oh, wait!”, I can hear you saying. “Here comes Sam again to complain about prosecuting students. They should be allowed to drink and drive, right, Sam?”

No, of course not. And believe it or not, I am not here today to say that none of these kids should be prosecuted.

Well, not all of them.

You see, there are actually problems with this scenario in terms of prosecution, which is probably why the kids were not all hunted down and immediately arrested.

First of all, on campus or off, minors consuming or possessing alcohol is illegal. They can be prosecuted for it. However, first you have to prove that they were consuming or possessing it.

The reason the T may be interested in the driver’s medical records is that that would be the only way to show that the driver had consumed any alcohol. Of course, mere possession would be the least of the problems. If the blood alcohol level is too high, the driver would be looking at drunk driving charges. This would open the door to responsibility for the damages caused when the causal link was made between the operation of the jeep and the collision.

However, that is really where it ends. It is unlikely that any of the passengers’ degree, if any, of alcohol consumption can be proven at this point, particularly since they ran away. Further, drunk while being a passenger is not a crime. Of course, if alcohol were to be found in their system, possession is evidenced.

Other than such blood tests, it may be difficult to even prove who possessed what in terms of alcohol. Who’s beverages were they? Did they necessarily belong to everybody? Couldn’t one or some of the students have not possessed the alcohol? No, mere presence is not enough.

Even were the MBTA able to show that all the students were drunk and possessing every open and closed container in the jeep, it is still a hurdle to prove that they were all responsible for the accident. The operator of the jeep was the one in control of what the jeep did, not the passengers. Unless there is further evidence to implicate the other students, such a civil lawsuit, or even prosecution for the damage, is unlikely to be successful.

On the other hand, weak cases are sometimes won; strong cases are sometimes lost.

The best way to increase your chances of winning is to have an experienced criminal defense attorney on your side as early as possible to advise and defend you.

If you have reason to need one and wish to contact me to discuss it, please feel free to call me at 617-492-3000.

For the original story upon which today and Monday’s blogs are based, please turn to : http://www.boston.com/news/local/breaking_news/2010/04/_by_globe_staff_3.html

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