In misdemeanor cases, even serious ones like a misdemeanor motor vehicle homicide or hit and run with personal injury, you can be accused of a crime, but not arrested. In fact, in cases where the police didn’t witness the crime, and the alleged offense is not a felony, they cannot arrest you.
In misdemeanor cases out of the presence of a police officer, you are only subject to a criminal summons to a clerk magistrate’s hearing. The purpose of a clerk’s hearing is to determine if there is sufficient probable cause to issue a criminal complaint.
I have represented many people at clerk magistrate’s hearings, and specifically, in leaving the scene of an accident cases, it is very possible to walk out with no criminal charge being filed.
Why a Witness is Necessary For An Arrest
It is not uncommon in hit and run cases for witnesses to only have a license plate number identifying the car. While that establishes who owns the car, it certainly doesn’t provide convincing evidence that this was the person who was driving the car at the time. The police or witnesses can’t know if a family member or roommate was behind the wheel at the time of the incident.
How aggressively the police pursue the investigation depends greatly. In most cases, nothing happens until the person is at a clerk’s hearing after a citation. But I have had a client in a hit and run case immediately hassled by police, where they have shown up 4 or 5 times at his house, and banged on his door to talk. If a person were to admit to a crime or say something incriminating, then they could be arrested on the spot, so is it prudent not to talk to the police.
Examples: Cambridge Police Officer Gets Criminal Citation for Hit and Run with a Bicyclist
In February of 2016, Cambridge Police Officer Ryan Callinan was cited for leaving the scene of a personal injury (hit and run) as well as Operating to Endanger, both misdemeanor criminal charges. It was a result of an off-duty incident.
This was not an example of any police officer getting an advantage that citizens do not. That is how these misdemeanor offenses work. With no witness to the crime (he was tracked down via a 911 call that saw his license plate) an arrest is not possible for a misdemeanor.
The Brandon Spikes Hit and Run Case
In June of 2015, former New England Patriot Brandon Spikes was accused of hitting another car on Route 495 and fleeing the scene. His expensive, wrecked Maybach was found by the side of the road, and a family he allegedly rear-ended was taken to the hospital.
But since there was no witness, there was never going to be an arrest. After and investigation, he was eventually cited to appear in court for leaving the scene of an accident with personal injury.
I was interviewed on Fox25 on the charges he faces, the distinction between a citation and an arrest, and how this would likely play out when he appeared at the Wrentham District Court for a Clerk Magistrate’s hearing.
The Brandon Spikes hit and run hearing was not open to the press or the public. Clerk’s hearings are not public because there is no formal criminal charge unless they find sufficient cause. Ultimately he worked out a deal and was never going to serve jail time as I stated in my interview.
Hit and Run Cases Generate Citizen Outrage Over No Arrest
A more serious recent local case of an alleged hit and run raised the question in the media about what constitutes an “arrestable offense”. The case in particular that caught some local media attention was a hit and run in Leominster.
Daniel Brand, 34, a local father of 3 is alleged to have struck 16-year-old Joshua Carillo who was riding his bike. The boy suffered 2 broken legs from the crash. A witness allegedly saw Brand remove the bike that was stuck and dragged under his car for some distance.
The parents of the boy who was hit were understandably upset that the police had a suspect but were initially unable to make an arrest. The police knew who the man was, and impounded his car to collect evidence of the crash, but he wasn’t in custody for 5 days, until the facts revealed an alleged witness intimidation.
The family is lobbying to make leaving the scene of an accident with personal injury a felony offense, both for the purpose of arrests and for increased penalties from the current maximum of 2 years in jail.
He was eventually arrested after allegedly threatening a witness who saw him remove the bike from his car. The witness said Brand said to her “You better not say anything, I’m not going down for this”. He was held on $15,000 bail and the case was dealt with in Leominster District court. Brand and his wife maintained his innocence on all charges.
Will Leaving the Scene of Personal Injury Be Changed To a Felony?
We will see if the publicity of these stories gets any traction, and the legislature chooses to act to change the law.
They could certainly choose to have two levels – a felony offense for more serious injuries, particularly when someone is hospitalized. The current law as written has a minimum 6-month jail sentence, with a maximum of up to 2 years.
However that 6-month minimum can be suspended, meaning it doesn’t have to be served. Currently, leaving the scene is only a felony if you cause someone’s death.
In defending a case of misdemeanor leaving the scene of personal injury charges, the courts are generally careful and wary of quickly settling these cases. Even if the injury to the other person is minimal or negligible, the prosecutors often won’t settle a criminal charge until any medical records are reviewed, and they are 100% sure that any injuries aren’t serious.
If you are accused of a hit and run or any other criminal charge, please call me for a consultation anytime.