Man Arrested 2 Times in 3 Hours for Same Criminal Charge

May 1, 2012

How can someone get arrested two times in three hours? Jeffrey Graham of Merrimack, NH found a way to do just that.

At approximately 3:30 in the afternoon, witnesses reported that a motorist was driving in and out of traffic, struck a mailbox, and fled the scene. Police caught up to the motorist, Graham, and pulled him over. He was visibly intoxicated and arrested for Operating Under the Influence of Liquor. He was released on $2,000 bail.

At approximately 6:30, witnesses reported that a motorist later found to be Graham, once again, was back on the road, still intoxicated (or possibly re-intoxicated?), again struck a mailbox, but this time one-upping his earlier performance by driving into a fence. Police made contact with Graham as he was driving near his home, and arrested him for the second time that day. He was subsequently held on $5,000 bail.

If these arrests happened in Massachusetts, a $5,000 bail would be the least of Graham’s concerns. The prosecution would probably seek to have him held in custody for up to sixty days. In Massachusetts, if a person is released on bail after being charged with a crime, and is subsequently charged with any new criminal offense before that first charge is resolved, the court can hold the person without bail for up to sixty days if it finds that person to be a danger to any particular person, or the community in general. Based on the fact that Graham was charged with the same offense and each time drove with reckless disregard for the public’s safety, fled the scene after striking stationary structures, all within 3 hours, I think the prosecutor would have a pretty strong case for pretrial detention. But, believe it or not, if I were representing Graham in Massachusetts, I think I’d be able to have him out in time for dinner that night.

How? A legal Loophole

If this case happened in Massachusetts, I believe that Graham might actually benefit from the fact that his arrests were only a few hours apart. How does this make sense? In making its determination as to whether Graham should be held for pretrial detention of up to sixty days, the Court must follow M.G.L. c. 276 s. 58, which states, in relevant part:

“The court shall provide as an explicit condition of release for any person admitted to bail pursuant to this section or section fifty-seven that should said person be charged with a crime during the period of his release, his bail may be revoked in accordance with this paragraph and the court shall enter in writing on the court docket that the person was so informed and the docket shall constitute prima facie evidence that the person was so informed. If a person is on release pending the adjudication of a prior charge, and the court before which the person is charged with committing a subsequent offense after a hearing at which the person shall have the right to be represented by counsel, finds probable cause to believe that the person has committed a crime during said period of release, the court shall then determine, in the exercise of its discretion, whether the release of said person will seriously endanger any person or the community. If the court determines that the release of said person will seriously endanger any person or the community and that the detention of the person is necessary to reasonably assure the safety of any person or the community, the court may revoke bail on the prior charge and may order said person held without bail pending the adjudication of said prior charge, for a period not to exceed sixty days.”

Here, because the offenses only happened only 3 hours apart, Graham was never arraigned in court on the first offense. Therefore, he was never informed “by the court” that being arrested while out on bail for his first case could result in his being held up to sixty days in jail under this statute, much less is there even a docket yet for the clerk to show prima facie evidence that he was informed of this risk. If he had waited until the following afternoon to commit his second offense, rather than just a few hours, he would likely be held as a “danger to the community,” as he would have already been arraigned and given bail warning pursuant to this statute. But in this case, I believe I’d have him released on a higher cash bail than that set for his first arrest, and if he could post it that day, he’d be a free man (for the time being).

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