GloucesterTimes.com, Gloucester, MA

May 23, 2013

Drunken driving case tossed over fog-light stop

By Marjorie Nesin
Staff Writer

---- — A 30-year-old man whose blood alcohol level rang in at 0.14 after a traffic stop in October that led to his second drunken driving arrest nonetheless had his case dismissed in Gloucester District Court Monday.

The reason?

A judge found that the arresting officer had no valid reason to stop the driver in the first place.

Anthony D. Cooper of Friend Street and public defender Thomas J. O’Shea had moved for the case’s dismissal on the grounds that the officer who initially stopped Cooper because he was driving with fog lights turned on during a clear and sunny day just before noon had no reason to pull him over because his use of the lights was not a violation of traffic law.

“The defendant contends that the Gloucester police lacked the requisite probable cause to stop the motor vehicle and thus the above described stop and search and seizure was illegal and in violation of the rights guaranteed him under the fourth and fourteenth amendments...,” their court statement reads.

Judge Joseph Jennings, apparently agreeing, found that, since the traffic stop was wrongful, any charges that resulted from evidence gathered during that stop — including the drunken driving charge — were dismissed.

Massachusetts state law allows drivers to outfit their vehicles with up to two fog lights, mounted on the vehicle between 12 and 30 inches above the roadway and angled so as not to disturb other drivers.

While state law does emphasize that fog lights should be used in certain foggy conditions, it does not forbid drivers from using the lights during the daytime.

On the October day of Cooper’s arrest, a Gloucester police officer conducted the traffic stop on Veterans Way just before noon.

“The sky was clear and sunny. There was no need to be driving with fog lights on,” the officer wrote in a report.

When the officer approached the vehicle, he noticed that Cooper’s eyes were bloodshot and glassy, a common sign of intoxication. He also smelled an alcohol odor emitting from the vehicle.

According to police, Cooper failed two sobriety tests, and was unable to perform two more. He told the officer he had been drinking alcohol the previous night, and had just woken up.

The officer then noticed Cooper’s vehicle was equipped with wires and six or seven switches. In the report, he said the equipment led him to believe there were drugs hidden in the vehicle. The officer searched and found some marijuana in a mint container in the car.

Cooper was arrested and waived his right to decline a breathalyzer test, resulting in the 0.14 blood alcohol level reading, a level above the .08 legal limit.

Second-time drunken driving offenders in Massachusetts, if convicted, face a minimum of 30 days in jail and a maximum penalty of 2 1/2 years. Those penalties are in addition to fines, license revocation and required installation of an ignition interlock device.

Many defendants in Gloucester District Court facing their first drunken driving offense receive continuances without findings and are ordered to pay $600 in fines and assessment, attend alcohol programs and lose their licenses for 45 days.

Second-offense drunken driving cases are less common in the local court.

Marjorie Nesin can be reached at 978-283-7000, x3451, or at mnesin@gloucestertimes.com.