Courts, legislators can curb unwarranted OUI acquittals

Leniency in cases of drunken driving is baked into the Massachusetts judicial system, creating trouble on the roadways and in the courts. A recent report by a special counsel to the state Supreme Judicial Court offers straightforward steps to protect lives and restore public confidence.

Last year, the Globe Spotlight team documented dramatic discrepancies in the conviction rates of defendants who proceed to trial on charges of operating under the influence. Those who waived their right to a jury trial and opted instead for a judge frequently eluded justice even in the face of damning evidence. Now special counsel Jack Cinquegrana, a former state and federal prosecutor, has found a similar statistical pattern: From 2008 to 2011, juries acquitted 58 percent of the time in OUI cases, while judges found defendants not guilty 86 percent of the time.

Cinquegrana takes the beneficent view that there is no “correct’’ acquittal rate for judges. But there is clearly something wrong when certain judges have acquittal rates bordering on 100 percent. Judges despise score cards. But they are useful, at least, in spotting statistical anomalies. The state Commission on Judicial Conduct needs to take a hard look at individual judges and county courts, such as Worcester, with unusually high acquittal rates.


The report represents more than 4,000 hours of pro bono work by Cinquegrana and his legal colleagues at Choate, Hall, & Stewart. If the Legislature and judiciary adopt the report’s recommendations, it will have been time well spent. The authors, for example, wisely urge the Trial Court to require that jury waivers take place before the assignment of a trial date. That would help to eliminate the practice of last-minute shopping for sessions with judges deemed lenient on OUI cases.

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Another important recommendation is aimed at OUI defendants who argue, improbably, that their blood alcohol level while driving the car may have been lower than at the time of the administration of a breathalyzer test. Many defendants skate free on thin scientific evidence regarding “absorption rates.” The authors point to 15 states that have adopted a sensible solution: Change the statute to read that the OUI offense is committed when the defendant is found to have a prohibited blood alcohol level (.08 or more in Massachusetts) within a specified time after operating a vehicle.

Despite the measured tone of the report, it makes clear that drunken drivers have the sober public at a disadvantage at nearly every turn. That needs to stop. And there is more than enough evidence in the report to drive the Trial Court and Legislature into action.