Massachusetts judges were unfairly attacked as being lenient on drunk driving charges in a recent Boston Globe report released today. The special report was the first of a three part series written by Marcella Bombardieri, Jonathan Saltzman and Thomas Farragher.

The Boston Globe claims that judges are lenient on Massachusetts OUI cases during bench trials. The article states that the Boston Globe looked through court records, listened to tapes of courtroom proceedings in order to make its assessment. While the Globe claims to have uncovered a widespread problem, as a Massachusetts OUI lawyer, I believe that the report presents an unfair attack on Massachusetts judges.

To obtain case names the Globe would have had to rely on prosecutors pointing out cases that they believe they should have never lost before a particular judge. Overlooked in this fact, is that often the police report does not tell the entire story of what happened during an arrest. Police officers do not always remember exactly what happened when writing the report and sometimes exaggerate, overstate and embellish in the police report. Further, judges are not reading the police report but are hearing the officer testify live and under oath.

Judges who frequently hear testimony from the same officers distrust these observations. It is only when the testimony is heard live that a judge can evaluate the credibility and make a determination as to whether the standard of proof beyond a reasonable doubt has been satisfied. Because police reports are written to prove the case, to support the arrest, and omit any details that favor the motorist, clearly any view of police reports will make it appear as though every case is an obvious case of drunk driving. If police reports were fairly written, the officer would write in the report observations that show that the person was not under the influence of alcohol. Instead, these details are left for defense lawyers to bring out during trial to tell the other side of the story.

The Globe report claims that it could find little support for claims that the high rate of not guilty verdicts is because prosecutors do not exercise discretion to resolve weak OUI offenses. Since there is no public data regarding OUI trials, the primary source of data for the Globe’s investigation would have been discussions with prosecutors. A Massachusetts OUI lawyer would certainly not bring to light the facts of his clients case, because no client, whether found guilty or not guilty want publicity regarding an arrest for OUI. This would leave only cases to review from disgruntled prosecutors.

Unlike many states, Massachusetts prosecutors will not dismiss or reduce a weak OUI charged to reckless driving. If it is charged as OUI, regardless of how weak the case is, prosecutors will force the case to trial. In many cases, the prosecutor will knowledge the weakness but will state that there is an office policy that an OUI cannot be dismissed. These cases are then forced into the laps of judges. Cases with breathalyzer test results of .06 or .07 are routinely brought to trial in Massachusetts courts. These cases, which are very weak on the surface, do not merit the time and attention of a jury trial.

The Globe report also claims that some judges are under the misconception that the margin of error of the breathalyzer is .01. While the head of the Office of Alcohol Testing, would claim that the breathalyzer margin of error is lower than .01, this is a subject of debate within the scientific community. Many defense experts would argue that the margin of error is much greater than .01. The reason that the .01 margin of error is referred to in court is because when the Commonwealth conducts a breathalyzer test on a known solution sample of .15, the Commonwealth will consider the machine working properly if the result registers .14 or .16. If the breathalyzer machine was as precise as the Office of Alcohol testing claims, there would be no need for this margin of error in their testing on a known sample. Testing on a known sample should have less variables and be more precise than testing on an individual sample. Yet, this is not the case with breathalyzer testing.

The Boston Globe’s report overlooks that trials are not decided based on police reports and the Commonwealth’s case always will appear strongest on the police report then when put live on the witness stand. The attack on the Massachusetts judicial is unfortunate by-product of an attempt to create news and support the political agenda of prosecutors who are attempting to chill judges from finding defendants not guilty in OUI cases when the Constitutional standard of proof beyond a reasonable doubt has not been met.