Bad Influence

The ins and outs of D.U.I

By Chris Kanaracus

It's a recent Friday night at a popular local bar, about 1:30 a.m. The room is crowded wall-to-wall with Worcester's beautiful people and the jukebox is pumping out the latest hard-rock sounds from Korn and Godsmack.

Some are happier than others; one sweatshirt-and-baseball-cap-clad fellow of about 25 sits on a bar stool with head in hands, a thicket of empties covering the stretch of bar in front of him. But near the bathroom, a rowdy, mixed-gender group of friends are having the time of their lives, belting out a chorus of the `70s chestnut "December 1963
(Oh What A Night)," arms locked and dancing a wobbly jig. Ouch.

At just past 1:30, the house lights come up and the three burly bartenders start shouting people out the door. In due time, everyone leaves. But they don't exactly walk. It's more like a stagger. After about a half-hour of noisy socializing and last-minute hook-ups out in the street, everyone is gone.

It's a scene that plays out regularly in bars throughout Worcester, not to mention in more civilized form at any number of restaurants, house parties, and living rooms. And face it: it's also a scenario that many reading this article have been a part of at one point or another.

No doubt nearly everyone makes it home safely. Maybe one or two will have a fender-bender or get stuck in the snow. The truly unlucky will get arrested for driving under the influence of alcohol, or "DUI," as the offense is commonly known. And while they're at it, maybe they'll cause a wreck and kill themselves, their

passengers, or a complete stranger or two. In 1999, according to the National Highway Safety Transportation Authority, 15,786 people were killed in the US via alcohol-related traffic accidents, down about one percent from 1998, but a whopping 30 percent from 1989. But the problem remains: more than 1.4 million people were arrested nationwide in 1997 for DUI, more than any other crime except larceny and theft.

In Worcester, alcohol use has been a key factor in some of the most horrific incidents in recent memory. Last month, Royalston native William J. Battaini was sentenced to one year in prison for his culpability in the death of Deborah L. McCassie, who was beheaded by a tree while riding in a drunken Battaini's truck. And the oft-heard adage that drunk driving affects everyone is borne out here too: Worcester Police Chief James L. Gallagher's teenage daughter Kelly was killed by a youthful drunk driver, Jeffrey Martin, in 1985.

Fittingly, the penalties for operating a car while under the influence of alcohol are stiff -- perhaps more so than many of us realize. At minimum, you'll be feeling the pain in your wallet and lifestyle for at least three years. At worst -- and it's a short step -- a DUI conviction will follow you around for the rest of your life.

While these days, drunk driving as a social issue has receded somewhat from the spotlight, in Massachusetts the fight against it goes on. Tougher legislation is in the pipeline and new, perhaps dubious technologies are coming into use.

In late January, state Senator Stephen Brewer (D-Barre) filed legislation that would beef up DUI laws in three ways. It would allow a blood alcohol level of .08 to be consider proof beyond a reasonable doubt, rather than a "permissible inference," that a person is under the influence. The second bill would allow hospital staff to reveal the blood alcohol level of emergency patients, and the third would stiffen penalties for those convicted of DUI while a child under 14 was in the vehicle.

But advocates like Mieke Monen, director of the Worcester Mothers Against Drunk Driving (MADD) chapter, say getting more and tougher DUI laws actually passed is always difficult, due to strong lobbying efforts from the alcohol industry.

Beyond new laws, new technologies have popped up. Eight Massachusetts police departments, including Marlborough and Hudson, are currently testing a high-tech flashlight that manufacturers say can detect alcohol from up to 10 inches away by means of tiny sensors embedded in the device. The national MADD organization bought 200 of the $600 flashlights and distributed them free of charge.

Even DUI consumer products have come into casual vogue. Pocket breathalyzer units that cost about $40 are available in stores like the Sharper Image and on various medical equipment websites. The devices act like any other unit; blow into it and seconds later a color-coded bar will display your (approximate) level of intoxication.

Despite all of that, no one in law enforcement, MADD, or government will tell you DUI has been, or can be stamped out completely.

In 2000, Worcester police arrested 197 individuals for drunken driving. Those numbers are up slightly from previous years. In 1996, it was 188, and 1995, 156. In Worcester District court alone, more than 600 DUI cases are filed on average each year, when you include arrests made in surrounding towns.

Something we've always wondered about DUI enforcement is this: if the police wanted to stamp out drunk driving, why not simply arrest everyone who walks out of a bar at last call? Sgt. Paul Cummings of the WPD says it's just not that simple. "You have to have probable cause to make a stop. We can't just pull you over because you walked out of a bar at one in the morning. If an officer sees a driver commit a moving violation, for instance, then you've got a reason.

"Sometimes, though, we'll pull a special detail, especially around the holidays. Six to a dozen officers will go into an area and heavily police for DUIs." In the past such efforts have centered around the bar-heavy Kelley Square area. State police units often run roadblocks on major holidays as well.

But at night, when many DUIs occur, says Cummings, there are far less police officers on the job than during daytime hours. The ones that are, says Cummings, are from the Operations division, which patrol about 20 distinct routes throughout the city. "The first priority for the route officers is to respond to calls. They're very busy, especially on a weekend when you've got a lot of disturbance calls and such."

Many DUI arrests, says Cummings, come when officers respond to the scene of an accident and find one or more of the parties involved have been drinking, or make a similar discovery after they've pulled someone over for speeding or running a red light. "Of course there will be times when an officer sees someone who is obviously under the influence and may follow them, then pull them over, but that's not typical."

Worcester District court is the Worcester area's ground zero for anyone charged with DUI. It's in this crowded, chaotic bunker of a building where you'll end up the day after your arrest, either not-so-fresh from one of the 10 filthy, pale-blue holding cells in the WPD headquarters' basement, or if you made bail, from home. In either scenario, though, it's unlikely you're relaxed. And given the legal roller coaster you're about to ride, it's practically guaranteed that your mood won't get any better anytime soon.

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Quite a Bar Tab The written penalties for DUI are pretty stiff. In most cases, though, you'll get less than these due to clogged courts and prison system. In any case, here's a breakdown of the worst-case scenarios. 1st offense: Up to two years in prison. A fine from $500-$5000. Loss of license for one year, 3 or 6 months considered if you can prove a work or family-related hardship. OR probation and participation in an alcohol-drug rehab program and 45-90 day suspension (210 days for under 21). 2nd offense: 30-60 days in prison mandatory. $600-10,000 fine. Two year suspension, 6 month/1 year hardship considered. 3rd offense: 180 days in jail (at least 150) up to 5 years state prison. $1,500-$25,000 fine. License gone for 8 years. Work-ed hardship in 2, general in 4. 4th offense: 2 years in jail. $2,000-$50,000 fine. 10 years loss of license. 5th offense: Your license is gone for life. Up to 10 years in state prison. $10,000-$50,000 fine. And hopefully a lesson finally learned. Other facts There is what is known as a 10-year "lookback period," to determine whether another incident should be treated as a subsequent offense or not. If a prior conviction is more than 10 years old, it doesn't count. Driving after your license is revoked for an DUI carries a mandatory 60-day jail sentence. Source: Massachusetts Executive Office of Public Safety.

Today, you'll be arraigned and given a new court date, which is usually a few weeks away. At that time you'll have a pre-trial conference, where you have the option of cutting a deal with the district attorney for a lighter sentence. For first offenders, this tends to be a 120-day license suspension, at least $500 in fines and court costs, six months of probation (at a cost of $50 per month), and mandatory enrollment in a 16-week sobriety counseling program, for which you must pick up the $526 tab. Written statues actually list stiffer punishments than that (see sidebar, "Quite A Bar Tab") but those are rarely handed out, say police and court officials, because there's simply no jail space for first-time drunk drivers. And even a second conviction will likely garner just a 14-day stay in a locked-down rehab center.

Even without an actual prison sentence, in a sense you're going there anyway -- for at least four months, you can't drive. In cities like Boston, where public transportation isn't perfect but certainly adequate, that's workable. But in Worcester, with most neighborhoods placed well away from business districts, and with many people who commute outside the city, the automobile is a way of life. The WRTA bus system is a cheap option at $1.25 a ride, but most routes stop running after 9 p.m. And taxis? One recent four-mile trip we took while our car was in the garage cost a whopping $8, before the tip. Over four months, costs like those can add up.

Finally, count on five extra points on your auto insurance for an admission to sufficient facts, conviction, or guilty plea, plus loss of any good driver credit gained for the current year, adding hundreds of dollars to your annual tab for at least several years.

For many DUI offenders, those stakes are too high. In that case, you've got two options: a bench trial in front of a judge, or a six-person jury.

If you've procured a private attorney by now, a jury trial is what they'll usually recommend if your chances look decent. Fees can run from $1000 to more than $5000, depending on the lawyer and the complexity and length of the case. Defending accused drunk drivers certainly isn't the most noble pursuit, but then again, in the eyes of the law everyone is innocent until proven guilty.

Apparently, many lawyers agree with that sentiment. On the World Wide Web, you can find DUI law Web sites for every state. And near Atlanta, Georgia, there's actually an entire lawyer's college dedicated to drunk driving defenses, named, appropriately enough, the National College for DUI Offenses.

Most DUI cases take about one court day to resolve (more than that, depending on the number of witness called), but a talk with local attorney and former state Senate candidate Chris Loconto reveals that that's more than enough time for defense attorneys and prosecutors to play a detailed game of legal chess. "DUIs are cases where the presumption of innocence takes on special meaning. For a lot of [jurors], when they see someone accused of an DUI, they say "there but for the grace of God go I," says Loconto, who works on dozens of DUI cases each year.

When discussing a new case with a client, says Loconto, what's key is what happened during the arrest.

Generally, according to Loconto, field sobriety tests not only aren't always considered damning, but also they're not much more than a formality. In many cases, he says, if an officer asks to give you a test, he's already decided to arrest you and just wants some descriptive detail for a potential court appearance down the road.

Not only that, but like breathalyzer tests, roadside tests are completely voluntary. An officer cannot threaten you with arrest if you refuse to take them, although he or she could easily do so anyway on grounds of "suspicion."

Even less known is the fact that if you refused a breathalyzer test or field sobriety test, that refusal isn't admissible at trial. Neither are any prior convictions. In essence, if you've refused both tests you're ahead of the game, even taking into consideration that refusing a breathalyzer will result in an automatic 120-day license suspension. For at trial, the only thing a prosecutor will have to build a case on is the arresting officer's record and recollection of your actions during the stop and the booking process.

That's where defense attorneys get a crucial assist. "Juries don't like it when police try to fill in the gaps. You have to challenge their recollection. There's a lot of wiggle room," says Loconto.

Cross-examination of a police witness can be very effective, says Loconto, when a lawyer carefully points out everything a defendant did correctly in exacting detail. "It's almost like playing pinball. You go through the [sobriety tests] step by step."

Another, more likely scenario is that you did take the breathalyzer test, and failed. In this instance a defense lawyer can attempt to discredit the way the test was performed, or even review repair history records for the breathalyzer machine used by police.

At the end of the case, says Loconto, he's sure to make one key point. "What you stress [in closing arguments] is that this is a momentous occasion in the life of the defendant. A police officer makes arrests practically every day, and in many cases the trial isn't happening until six months after the original incident. You ask the jury, "Who's going to have a better memory, the officer or the defendant?"."

Loconto can speak from the prosecutorial side of things, too: he spent five years as an assistant district attorney in Worcester District Court, and prosecuted dozens of accused drunk drivers.

In some communities, all DUI arrests are taped by a cruiser-mounted video camera. In Worcester, only the booking process is recorded. Yet even this seemingly damning evidence can backfire, says Loconto. "Many times, people can "fake it" pretty well for the few minutes they're on camera. So at times the tapes aren't used [by the prosecution]."

Not that they're all that necessary, he adds. What's most effective, he says, is for a prosecutor to focus on building the credibility of the police officer to the jury, citing his or her experience, honors, and so on. Also, pre-trial strategy sessions with an officer can strengthen testimony.

But solid, unshakable police witnesses, while crucial, may not be the most important thing when seeking a conviction. "What's key, and what a good prosecutor will make very clear to the jury, is that But they don't have to prove you're drunk. You don't even have to prove that you drove the car unsafely. . .Just that you drove a vehicle while under the influence of alcohol." This is where things get sticky for defendants, because in some people, a .08 blood alcohol average doesn't necessarily mean they're falling-down drunk, albeit probably buzzed.

Now that's a point everyone reading this should realize. But perhaps the best way to avoid the DUI legal roller coaster is the most obvious: when you've had too much, stay away from the wheel. That way, you won't ruin your life, or, as the families of the thousands of people killed each year by drunk drivers can attest to, anybody else's.

Chris Kanaracus can be reached at
ckanaracus[a]phx.com.