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yvonne abraham

Will Ray Bourque get special treatment in his OUI case?

Ray Bourque departed district court in Lawrence after his arraignment on Monday.
Ray Bourque departed district court in Lawrence after his arraignment on Monday.Paul Bilodeau /The Eagle-Tribune via AP

Will Bruins great Ray Bourque get special treatment in the wake of his arrest on drunken-driving charges?

Let’s hope not. But he probably won’t need the help, anyway.

Late Friday night, Andover police arrested Bourque after a stereotype-defying crash in which the 55-year-old’s Mercedes slammed into a minivan carrying three teens driving slowly and cautiously in a work zone.

A portable breathalyzer test at the scene showed Bourque had a blood alcohol level of .249 — more than three times the legal limit. To get to that point, Bourque would have had to drink a “huge” amount of alcohol, according to David M. Benjamin, a Chestnut Hill forensic toxicologist who often testifies in OUI trials: An online calculator estimates that, for a man of Bourque’s size, that means the equivalent of 20 drinks over three hours, or of about 25 over six hours. Benjamin backs up those numbers generally, with the caveats that portable tests are less accurate and that Bourque may have drunk more or less.

The numbers will never see the inside of a courtroom anyway. Portable breathalyzer tests are inadmissible in Massachusetts. And Bourque refused to submit to a formal test. The state constitution has sweeping protections against self-incrimination, so his refusal to take a breath test cannot be used against him — or even mentioned — in court.

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So, as they so often do, prosecutors will be making an entirely circumstantial case against Bourque if he elects to go to trial. On the stand, police will cite his slurred speech, glassy eyes, and the odor of liquor on his breath.

If they have the resources, those accused of driving drunk can have significant advantages in the courtroom. A 2011 Spotlight Team investigation uncovered a culture in which successful attorneys work the system to their clients’ advantage — opting to forgo jury trials and shopping for lenient judges, outgunning underfunded prosecutors with experts who will explain away the most damning testimony.

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In the wake of that investigation, the courts introduced reforms making it more difficult for defense attorneys to judge-shop. Anecdotally, those familiar with the courts say there have been fewer jury-waived OUI trials, but there’s no way to tell without running the numbers, which neither the courts nor the district attorneys were able to do on short notice Wednesday.

But from where Mary Kate DePamphilis sits, things are as grim as ever. The program manager for Mothers Against Drunk Driving in Massachusetts says her organization hears every day from victims and families frustrated by the indulgence shown to those accused of driving drunk.

“We see leniency not just for celebrities but for anybody,” she said. MADD has so little faith in the system’s ability to stop drunk drivers that it is going all in on legislation requiring even first-time offenders to blow into a breathalyzer before they can start their cars. (Twenty-eight states require these interlock systems for first-time offenders. It’s a no-brainer that we need it here.)

It’s hard to win OUI convictions, not just because of protections for defendants, but also because it’s a crime we stubbornly refuse to take seriously. DePamphilis cites a CDC statistic showing that on average drunk drivers have driven drunk about 80 times before their first arrest. State Police arrested close to 13,000 people for driving under the influence in 2014. Too many of us can put ourselves in Bourque’s shaky shoes.

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His fame will present unique challenges for prosecutors, if it comes to that. Bourque is beloved, and he’s been (carefully) contrite. “I am not happy about the situation I put myself into on Friday Night,” he said in a statement. “I am a very proud person that accepts the responsibility of my actions.”

Bourque’s case will tell us a lot about how seriously we take drunken driving these days. It would be a shame if Bourque avoided the consequences of his actions just because of who he is. More worrying: If celebrity had nothing to do with it.


Globe columnist Yvonne Abraham can be reached at yvonne.abraham@globe.com.