Sunday, July 26, 2015

Drunk Driving: 4th Time The Charm?

Richard Sherwood (left) stands before Judge John Payne

At a revocation of bail hearing on Thursday morning Assistant District Attorney Andy Covington told Judge John Payne that Richard Sherwood, age 30, had violated the terms of his release by consuming alcohol.

A Sobrietor test the night before (9:01 PM) indicated the presence of alcohol, with a .031 reading.  Four minutes later a follow up test confirmed it with a reading of .029.

As per protocol a fax automatically went out to the Easthampton Police Department and they came to Mr. Sherwood's apartment and arrested him.

Back at the police station he took the Breathalizer test and passed with flying colors, as in a 0.0 reading.

But ADA Covington pointed out to Judge Payne that the breath test at police headquarters occurred at 10:47 PM, one hour and 46 minutes after the Sobrietor test, and with the normal elimination of alcohol from the bloodstream a zero reading would be expected.

Covington also pointed out to Judge Payne that Mr. Sherwood was most recently arrested in Amherst back in May with a very high breath test (.20), but do to an oversight APD only charged him with 3rd offense DUI, and in fact it was later amended to 4th offense DUI.

And had the state been aware back in May of that fact the Commonwealth would have moved for a 58A dangerousness hearing requesting Mr. Sherwood be kept in confinement until his trial.

Covington also told the Judge the State would be moving next week for a Grand Jury Indictment against Mr. Sherwood, which would then bump this drunk driving case up to Hampshire Superior Court.

Mr. Sherwood's defense attorney pointed out a Sobrietor, like a Portable Breath Test used by police in the field, is not admissible in court as stand alone evidence.  And the test that is admissible (the machines used at police headquarters) showed his client to be at zero for alcohol.

Sherwood's fiance was in the courtroom and would testify that she was with him that night and he did not have a drink.  In addition, earlier in the day of the Sobrietor test Sherwood had used a flea/tick bomb purchased at Dave's Soda and Pet Food City in his apartment which had trace amounts of alcohol in it.

Therefor the Sobrietor results were simply a "false positive."

Judge Payne asked when was Mr. Sherwood's trial date?   "September 2nd your honor," replied Covington.

"Motion to rescind denied," said the Judge.  Richard Sherwood was released (with the original $5,000 bail still in effect), until his September 2nd court appearance.


Anonymous said...

Thank you for pointing out the failures of the lawmakers (thus the citizens), the police and the courts to take someone who has driven drunk and keep them off the road, their failure to keep us safe from this guy after the 1st, 2nd and 3rd offense.

I will say that the tone of your posts only seems to blame the citizen and not those who have a the responsibility to stop the citizen.

But all those folks make more money and get more hours when people drive drunk, thus there is little incentive to change the system. Drunk drivers are good for lawmakers, police and the courts and most especially, the people that work there.

Why else do you think 2nd, 3rd and 4th offenses are common? it is not the drunkard lobby, it is those making money off them, your (elected) government!

It begs the question, is there anything that the people of Mass will not give up in order to make more public jobs or give the public sector a raise? I cannot think of an example.

The drunk driver sucks, those that keep him on the road so they can milk him, well they suck royally and they will do it again today!

Larry Kelley said...

The system is FAR from perfect.

Yes I agree there should be no such thing as even a "3rd offense DUI" let alone 4th.

With a 1st offense allow the current 24D disposition because indeed "everybody deserves a 2nd chance."

But after that, GAME OVER. 2nd offense is permanent revocation of license to drive, or at the very least required ignition lock system in perps vehicle that does not allow the vehicle to start if the driver has alcohol on breath.

And even in first time prosecutions, if a driver has turned down the breath test that should be admissible as evidence in a trial.

Anonymous said...

I said this over and over again, repeat offenders are let go time and time again. Does not matter if they are drunks, drug dealers or murders. There's no one to be held responsible in the system. And your right, everyone makes big money with a system like this.

Dr. Ed said...

I have a problem with this, Larry.

1: Was he operating a motor vehicle? No.

2: Did a police officer, or any human being, witness him (A) consuming ETOH or (B) being under the influence of it? Conversely, is there such evidence against the presumption?

Cops couldn't find ANYTHING, girlfriend says it wasn't consumed -- that outweighs a piece of funky electrical equipment in my book. And had it been me, I'd have blown up a few balloons and asked the arresting officer to take custody/evidence of one, and then asked Judge Payne to order the Commonwealth to have the air inside analyzed for ETOH. It's not cheap but I am told it can be done -- and if the Easthampton PD didn't have the balloon, I'd tell Judge Payne that my girlfriend had another one.

Judge Payne is honest -- my guess is that he was not impressed once he heard the zero reading on the accurate machine.

One of the reasons why readings from many of these less-expensive ETOH machines aren't admissible in court is that they mistake other THINGS for ETOH -- I believe that they mistake trace PPMs of Acetone for ETOH, and Acetone is not only a common ORM-D (fingernail polish remover being just one use) and hence in the ambient interior air but (I believe) naturally produced/exhaled by Diabetics. Including, I believe, people who are borderline and/or undiagnosed as such -- and alcoholics are at risk for diabetes.

And we've all heard of situations where an officer has mistaken a Diabetic for a drunk - although it isn't hard to mistake Insulin Shock for Mental Illness if you don't know the person. So you have a Black man, possibly with unmet medical needs, being arrested for something that he almost certainly didn't do. Where the hell is the NAACP on this?!?!?

He's in a private residence, not bothering anybody, and as much as some folk wish it were, it is not illegal to consume ETOH. So why can't he? (We just don't want him driving...)

How is this any different from putting a GPS on him and arresting him if he is seen moving more than 4 MPH on the presumption that he is driving a vehicle? THAT would be more effective in preventing him from driving drunk again -- yet I think (hope) we realize the stupidity of this.

The late Mike Grabeic said this far better than I can -- it's innocent until convicted so you can't punish him until he has actually been proven to have done it.

Above and beyond that, isn't a .03 reading considered proof of sobriety? Much like there is a .08 definitely guilty level, isn't there also one where you are definitely innocent, and then the middle zone where the officer has to make the case based on other stuff?

This is like the trace amounts of Cocaine found in some drinking water (in Europe) or the birth control pills found in the DC water -- I was always told that anything under .04 really didn't affect you which is why .04 was the CDL vehicle limit.

Dr. Ed said...

For the record, I don't want him on the road, but we do give people trials in this country before we lynch them.

I fail to see what right the State has to tell him he can't drink in moderation.

And if you want to lynch him AFTER conviction - maybe, but AFTER!

Above and beyond that -- watch that video, after a day of that damn thing going off, I'd be pleading with the judge to keep me in jail (and then suing for compensation after acquittal).

Anonymous said...

@Ed: I agree with you for the most part, but I think the most important thing to keep in mind here is the following: this man was brought up for a revocation of bail hearing. After his fourth DUI he was released on a $5,000 bail, with the condition that he NOT consume ANY alcohol.

While I agree with you that this Sobrietor device wouldn’t be sufficient evidence to charge anyone with DUI, and that this guy was in his private residence at the time, and not on the road, that all doesn’t matter a whole lot in the current context: this man is still innocent until proven guilty with regards to his initial charge, the DUI; a non-zero reading on this device only has the potential consequence of his bail being revoked, meaning he would have to await trial in jail. Defendant agreed to these conditions at the time of his release, and his willful skirting of these conditions would have his privilege of awaiting trial as a free man revoked. Therefore, I don’t see any great constitutional objections here.

In this case, though, since the reading at the police station was 0.00, I think the judge was correct not to revoke bail; like you say, this reading may well have been a false positive. Such false readings could have been caused by the flea bomb, but even something as innocuous as mouthwash could cause false positive readings like this; a 5 minute interval between readings may not be enough for something like that to dissipate. Still, after all this, I hope this guy will be off the road for good (or at least not allowed to be behind the wheel again).

Walter Graff said...

The sad part is that we pay for all of this and will pay more in the future. Because of the few morons out there federal legislatures are now working on a bill to have drunk driver technology put in all new cars. Guess who pays for that too.

Anonymous said...

Walter, I'll pay a little extra to keep my family safe, thank you very much. This is an actual solution to increase safety... treating alcoholism systemically is a 50 year problem, but I don't wanna get hit by a drunk tomorrow.

Anonymous said...

B-b-b-but ain't we s'posed to do like the gov't wants the schools to do with persons of colour? Less disciplinary action , more turning a blind eye?

Anonymous said...

Do they really treat the races differently in pur schools? Or is that just a rumour?

Anonymous said...

Government mandated inequality. Sound like America to You?

Anonymous said...

Yes sadly, it does. And Amherst, though far from being in the forefront, is certainly marching in goose--er, Lockstep.

Anonymous said...

To Anonymous replying to Walter paying more for a breathalizer, will not increase your safety!!! Others paying for this device will not help either. As you stated, its a 50 year systematic problem, not something that can be countered with one piece of technology. Walter, great point, let's not get legislated into paying more for autos.