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.