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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 5, 2013

WEYMOUTH HIGH SCHOOL STUDENTS CHALLENGE SUSPENSIONS BASED UPON CLAIMS OF ALCOHOL CONSUMPTION IN SUPERIOR COURT

Sometimes Massachusetts criminal or juvenile defendants strike back!

The Attorney Sam's Take blogs have often discussed the plight of the young who find themselves faced with crimes or school offenses. We began the week with Harvard University's latest cheating scandal. High School campuses have their own share of campus crimes.

Some say it is fair...others unfair. But whoever controls the record, criminal or scholastic, wins.

Or do they?

I have long bemoaned the fact that, however such cases end, as soon as such defendants are arraigned, the matter is entered upon their criminal/juvenile record. Usually, whether or not the allegations are said to have taken place on school property, there are also school ramifications which are then listed on the school record.

With either or both markings of records, the future is suddenly bleak for the accused who will have to address the listings for the forseeable future.

Now, two such Weymouth High School seniors are awaiting trial in a civil lawsuit they have brought against the school system. They have sued the school system over their breathalyzer-related suspensions after the homecoming dance. they say that they are eager for their day in court.

Among other things, the cases drawn public attention to the use of alcohol detecting tests.

You see, the girls were suspended for nine days “under the guise of a so-called zero tolerance policy” which the students claim violated their due process and civil rights. They say that they had not been drinking and they want this school records expunged in the legal costs paid. The lawsuit is pending in Norfork Superior Court.

The Weymouth School Department denies any wrongdoing and won the first legal battle, convincing a judge not to impose a temporary restraining order preventing punishment.

“The school district is entitled to a substantial deference in the imposition of discipline,” Judge Kenneth J. Fishman wrote in his November 16th decision.

The lawsuit has focused attention on the use of breathalyzers in schools as a way to combat student drinking. The practice, however, is not well documented, according to Massachusetts Mothers Against Drunk Driving and the Massachusetts Association of Secondary School Administrators.  

“I don’t know of any data of how prevalent it is, or whether it is increasing or decreasing,” said Richard L. Pearson, associate director of the administrators’ group.

Anecdotally, however, breathalyzer use in schools “is not all that common,” according to Mike Gilbert of the Massachusetts Association of School Committees. That’s because “obviously there are legal issues, to ensure that it is done fairly,” he said.
“Generally when somebody calls from a school district [asking about breathalyzers], we tell them to have a conversation with their legal counsel,” he added. But he said interest in breathalyzers is increasing. “Every time a 16- or 17-year-old student is injured or killed in a car accident involving alcohol – oftentimes, these kids are coming to or from a school activity.”

The local policies regarding the use of breathalyzers very. Hingham high school has been administering the test to everyone who attends dances ever sense it was a problem with intoxicated students at the 2006 homecoming dance. Principal Paula Girouard McCann claims that there hasn't been an incidence of alcohol use at dances ever cents. On the other hand, she also admits that the numbers of students attending the events have decreased. Nevertheless, she says, "it's a practice we have no intention of discontinuing."

Westwood High School principal Sean Bevan also said breathalyzer tests have been “ a condition of entrance” to school dances for many years. he says that he knows of nobody testing positive for alcohol. “Kids know well in advance that this is what they will encounter when they walk in the door,” Bevan said. “We’re hoping to deter, and it seems to work.”

Avon Middle High School also gives breathalyzer tests to all students before social events, said principal Sharon Hansen.  

Walpole, Brockton,  Hull, and Silver Lake Regional high schools are among the schools that have breathalyzers but use them sparingly — usually when they suspect a student has been drinking.

Officials at Randolph, Norwood, and Braintree high schools said they don’t use the devices. “We assess students at the door” of events, said Braintree High School headmaster James Lee, noting that both school staff and a police officer greet students.

“Generally, it’s effective. The general climate is that we are all watching and all aware, and if we see anything, we will respond,” he said.

According to documents filed at Superior Court, the Weymouth incident happened at the November Homecoming Dance at Weymouth High School.  School officials pulled aside nine students, including suspected of drinking alcohol. They were given breathalyzer tests. Seven tested positive, including plaintiffs.

The students were sent home and then suspended for 10 days, which was reduced to nine days after they attended an alcohol counseling class. Both women say they didn’t drink any alcohol and blamed another student’s water bottle they’d sipped during the dance, which “tasted strange.”

Their lawsuit contends that being forced to take the breathalyzer test amounted to an unlawful “search and seizure,” and also questions the validity of the results. The suit also criticized the severity of the punishment for what it says was a first offense for both girls.
The Weymouth student handbook lists possible consequences for violating school rules, ranging from early dismissal, parental conferences, detention, suspension from one to 10 days, and expulsion.

“This is a case about seven students who each made a stupid mistake at a high school dance and were then compelled to pay the consequences,” the school district countered in its legal response.. Further, attorney John Davis wrote, the school officials “take their responsibilities as public educators very seriously...They promulgated rules and regulations designed to keep Weymouth students safe. . . . The public interest demands that they should not be hamstrung in protecting Weymouth students.”
Fair? Unfair? Does the "punishment" fit the "crime"?

Let's talk about that, and compare with the Harvard University scandal, tomorrow.

For the original story upon which this blog was based, please go to http://www.boston.com/yourtown/weymouth/2013/01/31/two-weymouth-students-sue-reverse-breathalyzer-related-suspensions/K49rrf5DnIkLZYCxjvwDCN/story.html