• 25 Investigates: Drunken drivers use legal loopholes to wind up back on the road

    By: Eric Rasmussen , Erin Smith


    BOSTON -- As lawmakers consider tougher penalties for repeat drunken drivers, 25 Investigates uncovered how many avoid ever being convicted in the first place.

    Investigative Reporter Eric Rasmussen searched through hundreds of pages court records and discovered drunken drivers exploiting loopholes that keep them on the road – and even one repeat offender who was able to reopen a conviction from the 1980s to clean up his driving record.

    25 Investigates visited 10 local courts in and around Boston and reviewed dozens of drunken driving cases from a two-week period in 2015.

    The review found many beat their charges by challenging police reports, exploiting errors in court procedure and delaying their cases for months or even years:

    • One bold driver told Wilmington police he “just got his license back from a drunken driving arrest last month” and asked the officer to “give him a break.” He still got arrested, but a judge later found him not guilty.
    • When police in Hingham asked a suspected drunken driver to recite the alphabet, he told them “it had been a long time and he wasn’t familiar with the alphabet anymore,” according to the police report. Two years later, it was also a judge who declared him not guilty.
    • Police also arrested an off-duty Uber driver on Route 9 in Natick. According to the police report, he told the officer he thought he was 30 miles away on Route 1 in Saugus. Despite a suspended license and a blood-alcohol level twice the legal limit, a judge found him not guilty.

    RMV documents reveal each of those drivers still has an active driver’s license.

    Eric Brasidio told 25 Investigates he had his own run in with a drunk driver as his sister was driving him home the night of Dec. 3, 2015. Brasidio said they watched as a van swerved on the road in New Bedford.

    Brasidio dialed 911 to alert authorities about the driver in front of him and was on the phone with police for miles before he saw that driver eventually rear-ended another car at a Dartmouth stop light just off Route 195.

    “He never even hit the brakes,” said Brasidio. “He clearly could’ve killed like six or seven different people on the route.

    “Everyone’s on these roads,” said Brasidio. “Kids are walking these streets. I don't want anybody getting hurt.”

    No one was seriously hurt, but James DeCosta, Jr., 52, admitted to having “a couple beers and a shot,” according to a State Police report.

    Troopers found a six-pack of beer in his van with two bottles missing and one already open.
    Brasidio said DeCosta was unsteady on his feet while speaking to police.

    State Police later charged DeCosta with his third drunk driving offense. He faced jail time and having his license suspended for eight years.

    Brasidio told 25 Investigates he was called to New Bedford District Court as a witness 13 times over two years, but the defense kept delaying the case.

    Courtroom audio obtained by 25 Investigates revealed DeCosta finally got a lucky break in October.

    The trooper who made the arrest didn’t show up for the trial.

    Without the testimony of that trooper, the judge dismissed the case.

    A spokesman for State Police said prosecutors gave the trooper the wrong court date, citing an administrative error.

    After 25 Investigates contacted State Police, the spokesman said the trooper now plans to re-file those charges.

    “There’s no reasonable doubt that he wasn't drunk,” said Brasidio. “He was completely drunk.”

    But being drunk behind the wheel often isn’t enough to get convicted in Massachusetts.

    Records show Massachusetts courts have about 15,000 arraignments for driving under the influence every year. 

    Joe Keegan, a defense attorney in Quincy and a former police officer, says only a small percentage of cases ever make it to trial because the system is strained.

    “First thing would be – don’t do it. Don’t drink and drive,” said Keegan, who did not handle any of the cases reviewed by 25 Investigates. “But then if now you’re under arrest – and you’ve got the bracelets on and you’re back at the station – if somebody were to call me and say, ‘Hey, they’re offering me the test.’ I’d say, ‘Don't take it.’”

    Keegan says field sobriety tests are often unreliable in court and if a driver refuses a breathalyzer test, getting a conviction can be difficult.

    Under Massachusetts law, drivers who refuse to take a breathalyzer test automatically receive a 180-day suspension of their license. But when that same driver goes on trial, the fact they refused the test is not admissible in court and attorneys told 25 Investigates it’s a lot more difficult to get a conviction without that test.

    25 Investigates discovered DeCosta, the driver in the Dartmouth crash, found more ways to clean up his record.

    At the same time he was getting out of a third OUI, his lawyer wiped away an earlier drunken driving conviction.

    The court recently reopened and dismissed a conviction in DeCosta’s 30-year-old case – based on a procedural mistake by a judge – in 1985.

    “How is somebody still in court from 1985? That sounds ridiculous,” said Brasidio. “He’s not a person that should be out in the public. He should be behind bars.”

    DeCosta and his lawyer did not return multiple calls seeking comment.

    25 Investigates was able to reach some of the lawyers for the other drivers and they were adamant that their clients’ not guilty verdicts were justified.

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