IPSWICH — A judge has denied a motion to dismiss drunken driving charges against a former driving school instructor who was suspected of being drunk as he gave a lesson last December.
Daniel Winsky's lawyer is vowing an appeal, which could set a legal precedent on an unusual legal question: whether Winsky could be considered to have been "operating" the vehicle from the passenger seat, a required legal element of the charge of drunken driving.
In a decision last month, Newburyport District Court Judge Michael Uhlarik said yes he could — given that Winsky allegedly turned the wheel and used a foot brake on the passenger side of the driving school car on the morning of Dec. 26, 2007.
In his ruling, Uhlarik noted that there is no specific definition of the term "operation" in the state's drunken driving law, but pointed to two Supreme Judicial Court rulings that held that operation consists of a person manipulating some mechanical or electrical part of the vehicle.
Winsky, the judge wrote, allegedly "grabbed and turned" the steering wheel and used a brake pedal, and "both are mechanical parts and controls."
There is nothing in the law that states that an operator must be sitting in the driver's seat at the time, the judge wrote.
He found that it was not relevant that Winsky was sitting in the passenger seat.
The judge considered decisions in other states as well, citing cases from Michigan, New York, Virginia and Pennsylvania, in his ruling.
But there is no case law on the specific question of whether someone can be charged with drunken driving while sitting in the passenger seat.
Winsky's lawyer, John Morris, could change that if he moves forward with an appeal in the case.
Winsky, 52, of 26 Andrew St., Salem, had worked for Anthony's Auto School. On the day after Christmas, he was giving driving lessons to three students when he had one of the students pull into a Cumberland Farms in downtown Ipswich so he could get some coffee.
The clerk and a customer told police that they noticed a strong odor of alcohol on Winsky's breath and were shocked to see him get into the driving school car.
They called police, who stopped Winsky a short distance away. Police say Winsky turned the wheel and used the brake on the passenger side to pull the car over for the driving student.
The students in the car said they did not smell alcohol but did say that they had noticed Winsky sipping from a bottle of Robitussin cough syrup that morning. He told the students he had a cold.
Police did not charge Winsky that day, however, because of their own uncertainty over the law. A clerk magistrate later issued the charges against Winsky following a hearing.
Winsky pleaded not guilty at his arraignment in April. A status hearing in the case was scheduled for Oct. 23.
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