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.

MASSACHUSETTS OUI DEFENDANT MUST FIGHT IT OUT WITH THE CRIMINAL COURT, DCF AND RMV (Part 2 of 2)

Yesterday, we began discussing the case of Florian Roshi, 34 from Weymouth and hereinafter the “Defendant”. We covered how he got into alittle trouble with the criminal laws about children and OUI.

As described in the Boston herald, he is alleged to have, with a young child in the car, driven his truck while under the influence of drugs, gotten into an accident in which the small child was thrown from the vehicle and left the scene for awhile. He did come back, though. A bystander was helping the child, the police say they found various drugs in the truck and he was arrested.

I also explained that his children were now involuntary guests with the Department of Children and Families (DCF). In fact, a spokeswoman for DCF has confirmed that the agency “took emergency custody of … all children living in his home” upon being notified of the Defendant’s situation.  She declined to comment on any prior involvement with the family, citing privacy laws. The prosecutor at the Arraignment, however, apparently not as concerned for privacy rights, announced that the 4-year-old “has, in the past — recent past — been the focus of a DCF investigation.”

To add insult to injury, the Registry of Motor Vehicles has revoked the Defendant’s license indefinitely. Apparently, he had a 12-page record of vehicular offenses which date back to 2001 and includes three surchargeable accidents last year.

So, contrary to what I said yesterday, it is a “Commonwealth tripple whammy.”

Attorney Sam’s Take On Such Massachusetts “Whammys”

It is not unusual for drivers to have children. Therefore, it should not be a surprise that, when things like this happen, it can trigger problems in various arenas.

When that happens, what happens in one case will likely effect the others.

In this case, DCF has apparently gone to Juvenile Court to get authorization to keep custody of the child, at least for now. Under the circumstances, especially with the pending criminal matter, the court went along with their request.

Frankly, knowing how the Juvenile Courts generally respond to DCF, the court’s permission would likely have come with far less evidence.

At the same time, the RMV cannot not take action given the seriousness of the accident, the crimes alleged and the Defendant’s driving history.

Of course, as we discussed yesterday, the criminal case is pending in District Court where it will stay unless the Defendant is indicted.

“So, Sam, if one of these cases go poorly for the Defendant, will that hurt him in his other cases?”

The government agencies and the courts involved pride themselves as being independent. That said, the answer is most likely a “yes”. Whichever case goes south first, although it will involve different criteria, the agencies will use that as evidence against the Defendant in arguing for what they want.

“So, if he wins one of them, it will help him in the others?”

It could…but probably will not. His lawyer’s arguments that whichever tribunal should follow the lead of whichever case that is going well for him will be seen as self-serving and, as nobody wants to chance ending up in the media as being “too lenient” on crime, the court will proudly announce that it is not bound by the other court’s decision.

I have had this happen a number of times…enough to know that it is best not to argue that one so directly.

Of course, the Defendant has to be very careful with what he, himself, says and does during the pendency of all three matters. A statement in one case is likely to be used against him in any other one…particularly because it will likely be a sworn statement.

“So…in other words…the Defendant is sunk, right?”

As I have said before, no type of case is absolute in terms of how it will result. All three cases will depend on a number of things. One of these things, of course, is the attorney or attorneys involved.

“Do most defense attorneys handle all three types of cases?”

Not in my experience.  Just as most corporate lawyers would rather bathe in a tub of nails, most criminal attorneys would rather not do DCF cases.  However, I would strongly urge the Defendant to try to retain an attorney who is experienced all three. There are such attorneys. I am one of them. Absent that, he should have however many attorneys who are well versed in the type of case they are handling.

The problem is, though, different attorneys see things in different ways and it is important that one hand know what the other hands are doing. So, if at all possible, it would be best to have one lawyer who could handle all three.

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