Massachusetts OUI Defenses and Probation Violations: Some People Never Learn

Today’s post is a real story about limits – in life, professionally and personally. Before I say anything else, let me emphasize the obvious: I’m a criminal defense lawyer. I make my living, in part, by powerfully and aggressively defending clients who are accused of crimes. I fight to the end for my clients. Philosophically, I’ve always cherished the constitutional presumption of innocence in our country, and I believe that presumption should never be diminished in any way. All that being said, there are also times when I believe that if a defendant has committed multiple offenses for a specific act (such as drunk driving,) and has received multiple convictions or other findings tantamount to a guilty plea on those offenses, then he or she is arrested yet again for the same offense, the time comes when that person must own up to their problem, and pay the price that the courts have decreed is appropriate for that offense. As a Boston criminal defense lawyer, I can tell you that this type of situation is most often witnessed in OUI/alcohol and sex offenses.

Which brings us to today’s topic. Within the state senate in Massachusetts (a body not known for the sterling reputations of all who have been elected to it,) there is a certain state senator by the name of Anthony D. Galluccio, who stands out as a poster boy for the “Enough Is Enough” doctrine I referred to above. Galluccio, a Cambridge Democrat, has previous to today’s date been convicted twice of Massachusetts drunk driving/OUI charges. Subsequent to those convictions, in December 2005 he also caused a four-car accident in downtown Boston at 2:00 AM. Following that incident, a clerk-magistrate ruled that he had been drinking, but could not find sufficient evidence to legally support a charge of driving under the influence of alcohol. File that under “lucky break.”

Predictably, it gets worse: Just two months ago, in October, Gallucio was charged with leaving the scene of a car accident, in which he rear-ended a minivan carrying a family of four, resulting in a 13-year-old boy and his father suffering minor injuries. Just prior to that accident, a bartender in Cambridge, where Galluccio had been drinking, called Cambridge police to request that Galluccio be driven home, as the caller felt Galluccio was was too inebriated to drive. Notwithstanding, Galluccio refused to comment on whether he had been drinking before the October crash, telling reporters only that, “I cannot overstate how regretful I am,” and that, “I made a firm decision that there will be no alcohol in my life.” As a result of that incident, this past Friday, Galluccio, 42, was sentenced to six months of home confinement and to two years of supervised probation. He was required to avoid all alcohol use, and required to submit to random testing for alcohol use.

Aside from the usual random urine tests for alcohol, his probation agreement required him to use a handheld electronic device called a “Sobrietor”, which allows probation officials to monitor his blood alcohol content while he is at home, through the use of that device. (The device is essentially a breathalyzer similar to the ones used roadside by police, except that it transmits and measures the breath sample over a modem installed in the person’s home.) Also as part of that judgment, Galluccio lost his driver’s license for five years, was ordered to pay a $1,000 fine, ordered to undergo alcohol treatment, and attend a half-day workshop by the Brain Injury Association. The one exception to his home confinement sentence, was that he was allowed to leave home to attend church on Sundays, and to travel to Boston to cast a vote in the state Senate, when needed. The terms of his probation stipulated clearly that if Galluccio violated any term of his probation, he could be sentenced to up to a year in a county jail.

Given that the October incident he was charged with was Galluccio’s fourth incident allegedly involving alcohol, as a Dedham Massachusetts OUI attorney, I can attest that this disposition was extremely lenient. Prosecutors had called for Galluccio to serve jail time. He escaped that. One would think that this sentence would do the trick, but not so. Just days after this rather lenient sentence, Galluccio failed several breathalyzer tests administered through the Sobrietor at his home. That’s bad enough, but what follows is worse: Galluccio has claimed that his toothpaste caused the breathalyzer to record alcohol. Yes, that’s correct. “My toothpaste did it.” Galluccio issued a statement claiming that the breathalyzer recorded low-level alcohol readings as a result of his toothpaste, to wit: Colgate Total Whitening and Sensodyne Toothpaste. He said he arrived at that determination after consulting (read “desperately seeking”) a doctor (read” “any doctor”), who pointed out that these toothpastes both contain sorbitol, a sugar alcohol that has been reported to trigger positive breathalyzer results.

Full disclosure: This argument is not without legal precedent. It’s never been successful, but it has been tried. In 2006, a firefighter in Arkansas fought his punishment for testing positive on a breathalyzer by producing a chemist to testify that the mints he ate contained sorbitol, which “could have” caused his positive test result. The legal outcome? Thumbs down – and Galluccio failed to mention that in his most recent press release proclaiming his innocence on this latest offense.

As a Norfolk County, Massachusetts criminal defense attorney, in my professional opinion, this latest claim stretches credulity beyond the breaking point, and it poses an interesting professional question of when a defense lawyer should re-think accepting a client who clearly has a serious addiction problem, and who clearly poses a threat to public safety. Zealous defense of my clients is a trait I’m known for – and I’m proud of it. But at some point, a lawyer must make a decision in a case like this, a decision that will serve the client, protect the public, and allow the attorney to sleep at night.

In my next post, I’ll discuss what happens next legally – which will serve as a good backgrounder on probation violation hearings.