SalemNews.com, Salem, MA

August 1, 2013

Charges dropped after trooper's suspension

Repeat drunken driver wants license restored

BY JULIE MANGANIS
STAFF WRITER

---- — PEABODY — Prosecutors were forced to drop their case against a man facing his sixth drunken-driving charge earlier this year, after the state police trooper who made the arrest in March was suspended for a year for misconduct, The Salem News has learned.

And with the charges dropped, William Velasquez, 52, of Woburn, is now asking a judge to restore the license that the agency revoked for life as a result of the March arrest.

Trooper Sean McGarry, who had been with the Massachusetts State Police since 2005, was placed on a one-year suspension in April for violating rules and regulations concerning personal conduct, said state police spokesman David Procopio.

Procopio did not disclose the specific violations but said they occurred recently.

Velasquez and his wife were returning from dinner and drinks on the evening of March 15 when McGarry, according to his report, saw the SUV Velasquez was driving drifting between the first and second lanes on Route 128 four times.

He stopped the vehicle in Lynnfield and asked Velasquez if he had been drinking.

Velasquez allegedly admitted first to having two beers, then three, and eventually four (though his attorney, William Baccari, said his client did not drink all of the fourth).

At the state police barracks, Velasquez agreed to take a Breathalyzer test. But the machine, a Drager Alcotest model 9510, repeatedly rejected the samples he provided as either being insufficient or showed a result finding “mouth alcohol.”

The effort continued for nearly an hour before the trooper concluded that Velasquez was trying to stall or “beat” the test and recorded it as a “refusal,” according to the police report.

That is what triggered the lifetime license suspension from the Registry of Motor Vehicles, according to Baccari.

Baccari said he believes his client would have passed the test if the machine had been working properly and said he is aware of other instances of that model malfunctioning in a similar manner.

Velasquez was arraigned on March 18, and, because of his record of prior convictions, in 1991, two in 1992, one in 1993 and one in 1995, a judge ordered him held without bail.

Then, in May, while preparing for a pretrial hearing in the case, a Peabody District Court prosecutor learned about McGarry’s status, Baccari said he was later told.

Carrie Kimball Monahan, a spokeswoman for the district attorney’s office, said the prosecutor learned that McGarry would not be available for the trial, and because he was the only witness in the case, prosecutors would be unable to proceed.

The formal motion filed by prosecutors in the case says only that the charge was dismissed “in the interest of justice.”

Monahan would not comment on the reason for the trooper’s unavailability, referring questions to the state police.

Baccari said he had no idea about the motion to formally drop the charges until Velasquez showed up at his office. At first, he thought there had been an error by the court, he said.

Two weeks later, he filed a motion seeking the reinstatement of Velasquez’s license, which was rejected by Judge Matthew Nestor.

Baccari said in his suit that Nestor failed to give written reasons for denying the request.

He argues in court filings that Velasquez has had no convictions for drunken driving since 1995, a period of 18 years, and that he needs a license to get to and from his job and to evening classes.

His appeal, filed earlier this week in Salem Superior Court, asks that a Superior Court judge review the denial by Nestor and reverse the district court judge’s finding.

McGarry made a number of high-profile drunken-driving arrests during his career, including the arrest of a man who showed up, allegedly drunk, at the oil-change business in Peabody where McGarry was having service done on his cruiser.

In 2010, McGarry was assisting another trooper at the scene of a traffic stop when he was struck and injured by an allegedly drunken driver on Route 128 in Peabody.

But Procopio also acknowledged that McGarry has what he called a “significant” disciplinary history.

McGarry was one of the troopers named in a civil lawsuit stemming from the death of Kenneth Howe, who was killed during a struggle with police at a sobriety checkpoint on Route 114 in North Andover in 2009. That suit was later settled by the state.

Efforts to reach McGarry or an attorney representing him were not successful yesterday.

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