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Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network.
To speak to Sam about a criminal matter call (617) 206-1942.

Posted On: February 11, 2013

BOSTON’S POLICE COMMISSIONER’S SON IS STOPPED FOR DRUNK DRIVING

As we wait to see how traffic resumes on Monday, the first biasness day after the “Blizzard of ‘13”, we have a traffic story from last week. Cases involving alleged drunk driving are not terribly unusual. There is one twist to this case, however. At least as far as the Boston Police Department are concerned.

The driver was the son of Boston’s top cop.

It happened last Tuesday. It was a typical traffic stop when a Boston patrolman pulled over the son of Police Commissioner Edward F. Davis. It was around midnight just outside the TD Garden garage. The officer suspected that the lad was driving under the influence of alcohol. Rather than arresting him, he gave him a ride home.

Now, Commissioner Davis has requested a police investigation into whether his son was in fact drunk at the time.

According to a report written by Superintendent-in-chief Daniel Linskey, there was a witness who told police that he was concerned that a driver of a truck inside the garage might be “under the influence”. The officer apparently then waited for the truck to leave the garage and then pulled the truck over. Once the driver happened to mention being the police commissioner’s son, he was allowed to park his truck and was offered a ride home after the officer finished his shift.

Want some quotations from Linskey’s report? Here are a couple that have been released:

“Officer determined that (name omitted) had consumed alcohol and was trying to determine if it raised to the level of impairment. (name omitted) informed the officer who he was and explained who his father was and stated something to the effect that he wouldn’t want to upset the officer or his father”
“Subject further stated to officer if you’re concerned I can just park the car and get home another way,” Linskey wrote. “Officer informed me that he noted the falling snow and stated with the subject offering to park the car he felt that was the best solution to the situation.”

Linskey added that Davis asked him to investigate, and the department is working with First Assistant District Attorney Patrick Hagan as well as Corporation Counsel William Sinnot in doing so.

The results of the investigation so far?

“The commissioner followed all appropriate protocol,” said Boston Police Department spokeswoman Cheryl Fiandaca.

A lawyer for Hub patrolmen said no officer acted improperly during the traffic stop. “I’m confident, certainly, no officer engaged in any inappropriate conduct,” said Boston Police Patrolmen’s Association lawyer Thomas Drechsler. “We will let the investigation run its course

A spokesman for Suffolk District Attorney Daniel F. Conley said the office has not yet had a chance to review the reports.

Attorney Sam’s Take On Police Discretion And Car Stops

Some may think that this story is akin to the Shakespearean title, “Much Ado About Nothing”. Maybe so. I think, however, it is a good story to remind you about an important law enforcement fact about which we have not spoken for awhile.

In many cases, the police officer on the scene has a certain amount of discretion. Certainly, the decision of whether or not to award you the Commonwealth Bracelets of Shame is one of the most important of them.

You see, while it may seem like the Commissioner’s son was given special treatment, it was within the officer’s discretion. After all, he did not allow the driver to drive on home in the truck or drive home at all. There is nothing to indicate that no charges of OUI are being pursued or whether there is enough evidence to do so. Instead, the officer decided it was not necessary to actually arrest the driver. There is no requirement for an officer to actually place a suspected drunk driver into custody. True, not many OUI suspects get a ride home…but I have had cases wherein it has happened.

Whether or not you like it, the police officer at the scene has to have a certain amount of discretion in order to handle a scene appropriately. Even if you do not believe that, it is the way things are…for now, anyway. You have two choices when you find yourself in the eye of suspicion at such a scene.

One choice is that you could rant and rail about unfair police officers being akin to Germany’s Gestapo of old and fight with the officer. That might be kind of fun. For a moment, anyway.

Another choice you could make is to quietly comply with the officer, give your name, license and paperwork as ordered, volunteering no other clever explanations.

Which one do you think is most likely to help you get the benefit of the doubt from the officer when it comes time to decide who is going home in a few hours?

I have long suggested you choose the second course of action. Do not try to out-fight, out-run or out-talk the officer. Just do what you are told, keep your mouth shut and be respectful. Make sure the officer knows that you do not question his or her authority.

And then get in contact with an experienced criminal defense attorney as soon as possible.

Play your cards right….that could be within the hour!


To read the original story upon this blog is based, please go http://bostonherald.com/news_opinion/local_coverage/2013/02/bpd_investigating_traffic_stop_top_cop%E2%80%99s_son