MORE DRIVERS FOLLOWING MO'S LEAD

Refusals To Take Breathalyzer Increase

A growing number of drunken-driving suspects are following the example of
Red Sox star Mo Vaughn and refusing to take the Breathalyzer test,
convinced that is the only way to beat the charges in court, officials say.

"A good 70 percent of the time now they will refuse," said state Trooper
Mike Patnaude, who works out of the Bourne barracks. "They know if they get
a reading that's incriminating, it will bury them."

Police say the number of people refusing to take the test has slowly been
increasing over the years as defense attorneys become more vocal in
publicly urging clients to refuse the Breathalyzer, but the Vaughn case put
the spotlight on the issue.

"They realize (Vaughn) didn't take the Breathalyzer, and various programs
with attorneys that have been on (news media) are encouraging the refusal.
People are taking it to heart," said state police Lt. Jose Gonsalves,
commander of the Dartmouth barracks.

Last year, 10,765 drivers refused to take the Breathalyzer and lost their
license for 120 days, compared with 9,802 in 1996 and 9,164 in 1995,
according to the state Registry of Motor Vehicles.

That means police must rely more heavily on videotaping drunk drivers -- if
they have the equipment at the scene -- or the more subjective field
sobriety tests and observations of the person, New Bedford Sgt. John Silva
II said.

Part of the problem that police face is that the penalty for refusing to
take the test is not really as tough as the law suggests.

Also, if a person refuses to take the test, that information cannot be used
in court or even mentioned to a jury.

Linda Pacheco, director of the Bristol County chapter of Mothers Against
Drunk Driving, said that, technically, a person loses his or her license
for 120 days for refusing to take the test.

However, if the individual is acquitted within that time, a judge usually
reinstates the license, she said.

"They feel they have nothing to lose," she said. Lt. Gonsalves agreed,
saying that the penalties for refusing to take the test should be much
higher. "A lot of people don't understand why they aren't and why, year
after year, the legislation to do that is turned down," he said.

Marion Police Chief Brian Scott says tougher penalties for refusing are key
to curbing drunken driving.

"If we are serious about keeping drunken drivers off the road, a 120-day
loss of license is not enough. If you refused the Breathalyzer, there
should be a six-month suspension and, even more importantly, that should be
admissible as evidence that you refused.

If you can exercise the right to refuse, why can't the jury be apprised of
that? Let the jury decide what that means," Chief Scott said.

Massachusetts and Rhode Island are the only states where a prosecutor
cannot tell a jury that a driver refused to take the Breathalyzer test. In
California, jurors are told that a driver's refusal can be interpreted as a
"consciousness of guilt." Ms. Pacheco said that in Nevada, drivers can be
"literally held down and blood is drawn" to determine if a person is
driving drunk.

Forcing someone to take a Breathalyzer, urine or blood test to determine
sobriety while driving is based on the law of "implied consent." That means
drivers implicitly agree to whatever rules the state sets for the right to
drive.

A person is considered legally drunk in Massachusetts if the blood alcohol
level is .08.

Westport Sgt. John Gifford said the increased pressure on drunken drivers,
though, appears to be working -- even if some are trying to circumvent the
system.

He said he has noticed a decrease in the number of drunken-driving arrests
- -- mainly because the number of businesses serving liquor in town are
either closing or are now seasonal. With many new officers on the street in
town, anyone driving improperly is getting caught, he said.

"The town is almost shut down after midnight," Sgt. Gifford said. "If you
move and do something wrong, we've got you."