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April 17, 2009

Teacher guilty of DUI while giving a driving lesson

By Julie Manganis

IPSWICH — In what is believed to be the first case of its kind, a driving instructor from Salem has been found guilty of drunken driving while giving a lesson in Ipswich in 2007.

Daniel Winsky, 53, was immediately sentenced to 18 months of probation, requested by prosecutor Kate Hartigan, and will lose his driver's license for a year.

Newburyport District Court Judge Peter Doyle also ordered Winsky to attend a driver-safety class called "State Courts Against Road Rage," a brain injury awareness program, and submit to random drug and alcohol testing by a probation officer. He's also facing some $2,000 in fines and fees.

Prosecutors did not seek to have Winsky attend an alcohol safety awareness program, because under state law, that would have limited the length of his license suspension to no more than 90 days, said Steve O'Connell, a spokesman for District Attorney Jonathan Blodgett.

It may be the first case anywhere in which someone in the passenger's seat has been convicted of drunken driving.

Winsky was charged two months after Ipswich police pulled over the driving school car while he was giving lessons to two teenagers on Dec. 26, 2007.

Police had been called by a customer in a convenience store who said she was concerned when she saw Winsky, reeking of alcohol and slurring his words in the store, get into a driving school car.

Police conducted field sobriety tests and concluded that Winsky was impaired. They also gave him a portable Breathalyzer test that showed a reading of .23, but that result was not provided to jurors because portable devices are not considered reliable and their use is barred in Massachusetts courts.

But police did not arrest Winsky that day, because they had never dealt with a similar situation.

They decided to charge him after concluding that the brake on his side of the car, and his handling of the steering wheel, put him in control of the vehicle.

Contradictory evidence

The trial lasted about a day and a half, during which the testimony of witnesses during the trial was somewhat contradictory.

The two students who testified disagreed on whether Winsky smelled of alcohol. The two women in the Cumberland Farms where he stopped in for a soda offered different accounts, as well; both said he smelled strongly of alcohol, but while the customer recalled Winsky speaking in an "incomprehensible" manner, the clerk did not recall that.

The two police officers also disagreed on Winsky's performance on a field sobriety test in which he was required to say the alphabet. One officer said Winsky "stumbled" through the letters R through Z, while the other officer said Winsky successfully recited the entire alphabet.

Winsky and his lawyer, John Morris, were "stunned" by the jury's verdict, which came after about 90 minutes of deliberations.

Winsky had turned down an offer to plead guilty in exchange for a sentence of probation prior to the trial, insisting that he was innocent.

"He still denies he had anything to drink that day and would not have anything to drink because he was going to be teaching kids to drive," Morris said.

Morris said he doesn't understand how jurors concluded that what Winsky was doing amounted to "operation" of the Anthony's Auto School car.

He pointed to the legal definition of operation, which includes "any act that directly tends to set the motor vehicle in motion." And he questioned how the jury could find that Winsky was impaired, citing the testimony of the officer who pulled over the car and noticed nothing erratic about the way the car moved to the shoulder.

Morris filed a notice of appeal and asked Doyle to stay the sentence pending the outcome of an appeal, a request Doyle denied.

But an appeal — which would set the stage for the case becoming a legal precedent — is unlikely at this point, Morris said. District court cases that are not appealed are not recorded in legal reports, the bound volumes or electronic databases of cases that lawyers use to cite legal precedent.

"He wants to move on," Morris said. "He's lost his job, and he needs to get going with his life."

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