SalemNews.com, Salem, MA

March 12, 2014

DUI sentencing delayed while Salem woman appeals

Driver was home by the time police arrived

BY JULIE MANGANIS
STAFF WRITER

---- — SALEM — Ellen Kelleher’s neighbor was concerned as she watched the Honda Accord backing out of the driveway and onto Bellview Avenue in Salem one afternoon last March.

The Honda stopped in the middle of the road for an unusually long period of time before weaving down the street, the neighbor told police. The car stopped again, with the left turn signal on, but didn’t turn, she reported. It continued slowly down the street before the driver attempted to parallel park in front of another home, she said.

But by the time Salem police arrived in response to the neighbor’s call, about 20 minutes had passed, and Kelleher was back inside her house, the Honda parked in her driveway.

A Salem District Court jury earlier this week found Kelleher, 59, of 37 Belleview Ave., guilty of drunken driving, and she and her attorney stipulated that it was her third offense.

But Kelleher’s sentencing, which could include minimum mandatory jail time, has been stayed while she and her lawyer appeal.

Kelleher and her attorney, John Ronan, argue that police had no right to knock on Kelleher’s door on the day of her arrest, March 1, 2013, and then ask her to take field sobriety tests and, later, take a Breathalyzer, which showed a blood alcohol level of .26, more than three times the legal limit.

They are planning to appeal on the grounds that Judge Michael Lauranzano should have suppressed much of the evidence in the case, including Patrolman John Burke’s observations of Kelleher after she opened the door, the results of her field sobriety tests and the Breathalyzer test.

They argue that police had no justification under the Fourth Amendment to go to the home based on the word of a neighbor.

And, they argued in pretrial motions, there is no conclusive proof that Kelleher was drunk when she was driving down the street. They suggest that in the “significant” period of time between the phone call and the arrival of police, she could have consumed the alcohol that registered on the Breathalyzer, a test that they contend violated her Fifth Amendment right against self-incrimination.

Prosecutors argue that police did what anyone had a right to do: knock on Kelleher’s door.

It was Kelleher who voluntarily spoke to officers, even trying to invite them into her home, prosecutors said.

Further, the prosecutors argued in their response to the motions, police have an obligation to follow up on reports of criminal activity, especially when it is a matter of public safety, like drunken driving.

The patrolman was also familiar with Kelleher from prior calls, and police knew she had a history of drinking and driving.

Kelleher has prior convictions, from 1991 in Swampscott and from 1998 in Salem. But because they were so long ago, her license had been reinstated at the time of her arrest last year.

After that arrest, she was released on $5,000 cash bail.

She will remain free while the appeal is pending, but Lauranzano added some conditions, including a requirement that she have an alcohol monitoring device in her home and that she blow into the device for samples three or four random times a day. She’ll have to report in person to a probation officer once a week.

She has also been ordered not to drive while the appeal is pending. A conviction for a third offense carries an eight-year loss of license.

A status hearing in the case is scheduled for June 10.

Courts reporter Julie Manganis can be reached at 978-338-2521, via email at jmanganis@salemnews.com or on Twitter @SNJulieManganis.