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PostPosted: Wed May 29, 2002 3:52 pm 
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Joined: Mon Nov 20, 2000 6:01 am
Posts: 493
Location: Framingham, MA USA
A case decided in the Massachusetts Appeals Court tested the right of a district court judge to accept a lesser plea of the defendant.

This case involves a defendant charged in the District Court with OUI (operating under the influence) of alcohol, the fourth offense of this defendant. I am sure that most of you realize the defendant already had struck out and was going to the slam with a large fine and total loss of license. Over the objection of the prosecutor, the judge permitted the defendant to plead guilty of a lesser offense pleading guilty to a “third offense”.

The case was appealed to the Massachusetts Appeals Court on the petition of the Commonwealth.

There was a lot at stake here because a third offense can mean no jail time if the Defendant elects to go to a state sanctioned inmate facility for alcoholic treatment for about 2 to 4 weeks depending on treating unit’s set up.

I read this and thought to myself, so what? Judges regularly accept plea bargains, and then I realized, wait a minute, this result contained no bargaining with the Commonwealth (which indeed objected and appealed).

The Appeals Court stated, “Apparently it bears restating that, as a matter of constitutional law, judges do not possess the authority, unilaterally to reduce the level of charge brought by the prosecutor. Unless the Attorney General or district attorney agrees to a lesser charge (or nolle prosequi), a court is bound to hear and determine between the Commonwealth and the defendant (cases cited)”


The court goes on to say that a judge may for a variety of reasons based in law, dismiss a charge brought by the Commonwealth (e.g., insufficient evidence before the Grand Jury or double jeopardy ), or may exercise his discretion to dismiss or reduce a charge after the Commonwealth has had a full and fair opportunity to present its case…but the judge may not co-opt the discretion of the prosecuting authority to decide what charge the government will bring.

The judgment is as follows: “The judgment is reversed, the finding of guilty of driving under the influence of alcohol, third offense is set aside, and the case is remanded to the District Court for trial of the defendant at the fourth offense level, if the Commonwealth so elects”

As an aside, for years judges in district courts had a great deal of discretion (and still due) and in most instances, it humanizes matters. Suppose this event results in family chaos, with loss of job or many mouths to feed. Judges will often take such things into consideration to give one last chance, and for many years the Commonwealth had no or little opportunity to appeal.
The OUI statute is harsh. This is the result of the constant carnage on the highway involving the innocent and even that of the defendant.

Just about a year ago, I represented a client who was charged with a fourth offense OUI. His arrest was not the result of an accident, but that could have been the case. I had the DA and probation secure his prior records, and found that one offense listed fell outside of the counting of the offenses (too old by statute), and had this corrected. The prosecution is tough in these cases, but are still human. My client had a former difficult marriage, and his driving offenses coincided with these offenses. He was approaching fifty years of age and had been clean all along and had his own skilled specialty and was doing well. Based on this the Commonwealth allowed him to plead guilty to third offense (which was the correct number) and require only the enrollment in the program requiring his inpatient participation ( I believe about three weeks)

He no longer drinks and his business does well.

I do not envy the job of District Court judges. It is easy to be tough and mean; difficult to be kind and forgiving, and genius to be able to be equally fair.

When we read cases and reports, we see naked print and do not have the human equation of the prosecution, the defense and the judges perspectives.

Only in high profile cases do we see this, and then only because of media hype.

LEO’s see it and have their own perspective, as do counsel for both sides and the only one that can be unbiased is the man sitting on the bench; but then again he/she is only human.

Alan K


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"The Goddess of Justice is Blind"


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