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.

BROCKTON DRIVER IS ARRESTED FOR LEAVING THE SCENE OF AN ACCIDENT AFTER ALLEGEDLY STRIKING THREE CHILDREN

As I just returned picking up my daughter at college and then drove my son and his mother to Logan Airport for his first appearance in Los Angeles, I have been kind of “offspring-minded” this week. Then, just this morning, as I was listening to WBZ radio, I heard of another one of those news stories that hits me between the eyes both as a parent and as a lawyer.

It was in Brockton. It was approximately 8:00am yesterday morning. Kids were crossing the street to board a school bus just like any other week day when Boston’s Blizzards are not standing in the way.

An automobile apparently came racing down the street and struck three of those children.

According to a witness, the driver stopped to ask if the kids were alright…and then took off. Police were called and, a short time later, Brockton police arrested Yainira Boria, 38, (hereinafter, the “Defendant”) who was allegedly standing by the car involved, drinking a beer.

School officials say that the bus had been stopped with its stop sign out and lights flashing when two 8-year-olds and a 6-year-old from the Brookfield Elementary School were hit by the car.

The three children who were struck were back home last night. They all had scrapes and bruises, but, miraculously, no broken bones or other more serious injuries. They were treated at Brockton Hospital and then released.

Two of the children, aged 8 and 6, were two of the children who were hit. They live in the same building. One of their fathers, Lorenzo DaSilva, was walking them to the bus when, he describes, the automobile came out of nowhere. He said that he saw the group get hit and his son fly into the air. Then, he states, the car stopped and the driver stopped, explained that she did not have a license, and drove off.

Mr. DaSilva also explained that, at the time, he was focused on his son. He went on to describe going to his son who was not communicative, picking him up and bringing him to the side of the road.

There had been three children who had already boarded the school bus at the time of the accident. They went on to school where they were seen by a guidance counselor.

Attorney Sam’s Take On Massachusetts Vehicular Crimes And Leaving The Scene

You do not need my reaction as a parent. You might be interested in my thoughts as a Massachusetts criminal defense attorney.

I must point out, of course, that this is well-trod ground; we have discussed these issues many times in the past. Perhaps the Defendant was not a reader. Allegedly.

It seems from the story that the Defendant may well be facing a number of criminal charges. First of all, there is the obvious leaving of the scene after there has been bodily injury. It is a crime that the Commonwealth takes very seriously. This case, of course, has aggravating circumstances…namely, three injured kids.

Other charges which will likely be brought are Operating To Endanger and Assault and Battery with a Dangerous Weapon or something of the like.

“But doesn’t the hitting have to be intentional in order to be charged with that?”

Yes, but in certain circumstances, the Commonwealth may argue that the behavior was so reckless that the charge is valid.

“What about drunk driving or driving without a license?

She may have reportedly said that she did not have a license, but there is nothing in the story which indicates that this was correct information. If it was correct, then she would likely be facing that charge as well. The question regarding drunk driving question is an interesting one. According to the Commonwealth, the Defendant was found drinking alcohol. However, this was after the accident. Therefore, it is not really relevant to the accident as it is not illegal to drive and then drink. However, the police may or may not have tested whether she was intoxicated. If they did so, and found that she was, then there is a question of fact. For example, if she tested high on a breathalyzer, expert witnesses might opine, given the time that had passed between the accident and when she was located, that she had to have ingested alcohol prior to her arrest and what level of alcohol (if any) was in her system at the time of the accident.

In fact, if they have that kind of evidence, the Commonwealth would likely argue that she had gotten out of the car and wanted to be found drinking a beer so that she could claim that she had not driven the car and have an excuse for smelling like alcohol.

Particularly in such a case, identification will be a very important issue. It may come down to evidentiary issues such as whether it is indeed her car and how good an identification was or could be made by the eyewitnesses. The Commonwealth will also likely use the alleged leaving the scene as “consciousness of guilt” evidence. Of course, that only works if the Defendant is proven to be the driver beyond a reasonable doubt. If the jury believes that she was the driver, then the testimony of her stopping and making statements would be strong evidence that she absolutely knew about the personal injury and simply wanted to get away.

“So, is a defense of this case hopeless?”

I have often told you that I seldom see a case as “hopeless”. Assuming the right defense lawyer is handling the case, there are usually many issues that can be used to defend a client.

Clearly, there is substantial evidence already observable that could be used by the defense as to the identification issue.

One question, of course, is whether the Defendant has a valid driver’s license. If she does, then that helps to show she was not the driver because the driver claimed not to have a license. On the other hand, if she does not have a license, how would the witness have known that unless she said it?

Actually, there are a few answers for that…but there is a limit to what I can tell you here. This is, after all, a blog not a book (yet).

Suffice to say that the Defendant should make sure she has an experienced and talented criminal defense attorney.

But, then, I suppose I am repeating myself.

So, I will just apologize once again for the absence of blogs this week and wish you a great, safe and law-abiding weekend!

For the original story upon which this blog was based, please go to http://boston.cbslocal.com/2014/05/15/3-children-struck-by-hit-and-run-driver-in-brockton/

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