GloucesterTimes.com, Gloucester, MA

May 24, 2013

Editorial: DUI dismissal raises troubling public safety questions


Gloucester Daily Times

---- — There’s at least one lucky Gloucester guy and no doubt a few defense lawyers who are celebrating a murky — or should we say foggy — court ruling regarding a drunken driving case earlier this week.

While we’re the first to support the rights of residents to be free of harassment – the kind often imposed by federal fishing agents on Gloucester and other fishermen, for example — it’s troubling to get the message that a police officer can’t react to his instincts that something is wrong and at least pull over a driver who could pose a threat to public safety.

That indeed was the message sent by Judge Joseph Jennings, who agreed with public defender Thomas O’Shea’s argument and dismissed a DUI/second offense charge against a Friend Street resident because the Gloucester police officer who stopped the man should not have done so.

Why? The stop came because the motorist was allegedly driving with his fog lights on in the middle of a clear, sunny day along Veterans Way. And the judge essentially found that does not warrant a stop – or show sufficient cause to pursue any other type of investigation.

Now, using fog lights on a bright, clear day is not, in and of itself against the law. But doesn’t it at least suggest that the driver may be, at the very least, not focused or distracted and unaware of his surroundings? While many cars these days run automatically with their headlights on for safety, the same cannot be said for fog lights. And their use in this case should at least raise a potential red flag — as it did.

As it turned out, police were right. Detecting signs of substance use, officers put the driver through four field sobriety tests, found that he failed two of them, could not perform two others and blew a Breathalyzer reading of 0.14, nearly twice the legal limit of .08. Yet the officers’ efforts to take this driver off the road was essentially tossed out the window when the case went to court this past Monday.

Yes, motorists have rights, as do criminal defendants. And anyone charged has every right to challenge a case in court. But there also needs to be a judicious use of common sense — especially in a clear case in which one or more officers are doing their jobs and acting on behalf of a legitimate public safety issue.

That wasn’t used in this case — and that’s a shame.