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BEATING DRUNKEN DRIVING RAP PRICEY, BUT NOT HARDIt may cost $10,000, but lawyers say almost any case can be won
By ROBERT SEARS ~ The Patriot Ledger
It could cost you $10,000 or more, but lawyers who specialize in drunken driving defense say they can help you beat the rap.
“Almost any case can be won on one ground or another,” says Stephen Jones, a Norwell lawyer who wrote an 800-page treatise on defending accused drunken drivers as part of the Massachusetts Practice Series.
Jones said his firm, Jones and Milligan, successfully tries about 80 percent of the 200 drunken driving cases it deals with annually.
Brockton lawyer Edward Sharkansky handles about 150 drunken driving cases each year, and wins more than half of them. His confidence shines through in his radio ad:
“Please be responsible when drinking alcohol before driving, but when done responsibly, it is not illegal to drink and drive.”
Such ads by lawyers are the kiss of death as far as Mothers Against Drunk Driving in Massachusetts is concerned.
“They are feeding the denial of the drinking driver, apathy and denial which is already enormous,” said Barbara Harrington, executive director of the group.
She said few lawyers ever talk about treatment for their clients.
Norfolk County District Attorney William Keating and Plymouth County District Attorney Timothy Cruz declined to discuss the arguments or practices of lawyers who make a career of defending drivers arrested for drinking too much.
Massachusetts has lagged behind the rest of the nation when it comes to adopting stricter drunken driving laws.
Last year, the Legislature passed a “lifetime look-back” law, which puts a defendant’s entire record, rather than just the past 10 years, into play for prosecution and sentencing purposes.
And in 2003, Massachusetts became the last state to pass a law allowing judges and juries to presume that any driver with a blood alcohol level of .08 percent or higher is drunk.
Yet $9 million in federal road construction money could be lost if even stricter drunken driving laws are not on the books by Oct. 1.
Despite tougher measures lawyers say drunken driving cases can still be won, and drivers actually help themselves by refusing to take field sobriety or breath tests.
“If the question of alcohol comes up, a driver shouldn’t answer any questions or take any field sobriety or breath tests,” said Jones, a member of the board of regents of the Alabama-based National College of DUI Defense, an organization that certifies lawyers specializing in drunken driving cases.
“If you refuse everything, you’ll probably get arrested, but the evidence against you won’t be tainted by the fact that you weren’t a candidate for a breath test or that you couldn’t pass a field sobriety test.”
Lawyers find plenty of wiggle room even when clients have flunked breath or field sobriety tests.
Jones uses expert witnesses extensively. Sometimes they can convince a judge or jury that a sobriety test did not follow National Highway and Transportation Administration guidelines.
“They are very rarely given and graded according to guidelines,” Jones said.
“Once a jury finds out that completely sober individuals have failed field sobriety tests, you call into question the decision to arrest, or at least whether a defendant can be found guilty beyond a reasonable doubt,” Jones said.
Making the call on whether to ask for a trial by jury or go before a judge is important to lawyers practicing in this area.
“People are more concerned about drunken driving today and that reflects in the jury pool,” said Quincy attorney Jeffrey LaPointe.
Even so, Lapointe most often recommends jury trials for his clients.
“Judges have probably seen or heard most defenses hundreds of times, and their natural inclination is to say, ‘I’ve heard that before.’ You won’t get that from a jury,” he said.
While drunken driving cases are not his specialty, LaPointe takes on about 20 a year.
He said his approach is to discredit the prosecution’s case without being confrontational with police witnesses.
“I say to a jury look, the police officer is just doing his job. He may have smelled alcohol, but did he meet the standard the jury should consider for making an arrest?
“If I can do that, I have a great chance of success.”
Robert Sears may be reached by clicking here.
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