Image Source: CBS Boston
On Monday morning, 36 year old Kimberly Desrochers, was operating a vehicle when she crashed into a tree on Killiam Road in Boxford. Desrochers’ 2-year-old daughter and 7-year-old son were injured in the crash. The boy was transferred to Massachusetts General Hospital for treatment of a serious head injury. It was later determined that Desrochers was under the influence of heroin during the crash and she was charged with OUI and serious drugs, OUI second offence, and assault and battery on a child. She will be held without bail pending a dangerousness hearing, but most importantly, the injured children recover from their injuries.
Clients have asked, how can I be charged with “Assault and Battery on a Child” when I did not physically touch them, and the harm caused was an accident? The statute under which the suspect in this case is charged is Massachusetts General Laws chapter 265, section 13J. In order to prove this offense, the Commonwealth must prove the following elements, beyond a reasonable doubt:
- That the defendant had care and custody of the alleged victim;
- That the alleged victim was a person under 14 years of age;
- That the alleged victim suffered bodily injury; and,
- That the defendant wanton or recklessly permitted that injury to occur.
So, in circumstances such as this, the Commonwealth would have to prove that the defendant knew, or should have known, that her actions were likely to result in bodily harm to her children, and she continued in her act anyway – i.e. – operated a motor vehicle under the influence of intoxicating drugs, while the children where in the car and under her care. For each count, the defendant faces up to 2 and ½ years in the House of Corrections.
Also, it appears that the Commonwealth is moving to detain the defendant until trial, pursuant to Massachusetts General Laws chapter 276, section 58A, and the matter is scheduled for a dangerousness hearing. Individuals charged with crimes in the Commonwealth always enjoy a presumption of innocence, until which time, if ever, the Commonwealth can prove beyond a reasonable doubt each element of the crime charged. Accordingly, in state court prosecutions, there is a presumption in favor of pre-trial release on conditions of bail that will reasonably assure that the defendant will appear at all future court dates, including trial. However, the Commonwealth has the option to file a motion for pre-trial detention where they can show, by clear and convincing evidence, that no conditions of pre-trial release will reasonably assure the safety of any other person in the community.
In the instant case, where the defendant is charged with a second offense, OUI, Drugs, and the defendant’s children where in the car, it is reasonable to assume that the Commonwealth is concerned about serious substance abuse issues that would pose a serious risk to members of the defendant’s family, that can only be addressed by detaining the defendant pending trial.
It will be interesting to see how the case proceeds.
If you, or someone you care about has been charged with OUI, Drugs it is imperative you speak to a Massachusetts Attorney that specializes in OUI, Drugs Defense. Call Attorney Vincent A. Tofani now for your free consultation at 617.886.0500.