Opportunity to bring drunken driving charge fades quickly, legal experts say of case involving Belchertown Police Chief Francis Fox

NORTHAMPTON — By not acting immediately to press a drunk-driving case against a neighboring police chief, the Granby Police Department put itself in a box, legal experts say.



Attempting to prosecute a driver such as Belchertown Police Chief Francis Fox without evidence such as results from a breath or sobriety test is difficult in itself. But another obstacle for later attempts to bring charges is the state’s “No Fix” statute, which calls for the timely issue of citations at or near the time of offenses for motor vehicle moving violations.



“They can’t win that case right now,” said attorney Jack Collins, a longtime former general counsel for the Massachusetts Chiefs of Police Association, citing the state statute.



Collins said any possible consequences at this point would “come from his own department or Board of Selectmen.”



That panel has called a meeting for Monday to confirm its move to place Fox on administrative leave as of Friday after learning that he was stopped as the result of a report of erratic driving Feb. 1 and later found to be slurring his speech, stumbling and smelling of alcohol. The board also plans to appoint an acting chief is his place.



Fox, 51, has not returned calls seeking comment on the February traffic stop or his status.



However, Collins said material in the Granby police officer’s report could be considered relevant in an investigation into ethics violations. In that report, Officer Jason Richard notes that Fox thanked him “for using my discretion” by not arresting him — and in fact driving him home in the chief’s unmarked police cruiser.



Police officers have discretion when it comes to issuing traffic citations or related motor vehicle law enforcement, said two legal experts interviewed Friday by the Gazette.



There is no law mandating arrest or other action in cases where operators are found to be operating under the influence.



In addition, there is no law an officer would violate by driving home a person suspected of being unable to do so safely, though such matters could be covered by a department’s policy and procedures, according to Collins.



“The days of driving people home are almost all gone,” Collins said. “It’s much more rare today than it used to be.”



Apart from seeking any criminal charges, Collins noted that the Belchertown case could represent a possible state ethics violation if Fox was found to have used his office as a public official to gain an advantage not available to members of the public.



In his Feb. 1 report, written the night of the incident, Richard, a patrolman, noted that Fox “asked me if I knew who he was and told me that he had been a cop for 30 years. I explained that I knew exactly who he was and that I did not appreciate the situation he was putting me in.”



Having a motorist simply identify himself is not necessarily a violation of state ethics laws, Collins said, if no direct benefit is received that a member of the public might not also receive — and being driven home is something that, while rare, is sometimes done for members of the public if an officer decides that can be done safely.



Collins said that in his view it would be highly unlikely that a case against Fox, as described to him, could be prosecuted effectively if there were no breathalyzer or field sobriety test results available, not to mention the fact that a seven-month delay occurred.



DA’s perspective



First Assistant Northwestern District Attorney Steven Gagne said Friday he has considerable experience with the “No Fix” law, having litigated issues involving that statute several times, including once in which he tried to bring an operating under the influence charge against a Northampton man three months after it occurred.



In that case, the Northampton man had been stopped and arrested by Northampton police on an operating under the influence charge (second offense) in February 2014. That arrest came three months after a nighttime crash involving the man in Easthampton. Gagne investigated the Easthampton crash and learned that the driver had an alcohol content above the legal limit, after examining his medical records, though police did not know that at the time.



Easthampton police had at the time issued the driver a citation for a marked lanes violation and driving with a suspended license, though officers did not detect any indication that he may have been intoxicated at the crash scene.



Police officers “don’t go summoning people’s medical records in every single crash,” Gagne said. “They don’t have the resources.”



It was not until the defendant’s drunken driving arrest on Feb. 23, 2014, that the circumstances of his earlier crash came under renewed scrutiny.



Gagne reopened the case and asked the Easthampton Police Department to charge the driver with operating under the influence of alcohol, but that case was dismissed in court after the defendant filed a motion to dismiss under the “No Fix” statute, he said.



“The statute is pretty clear,” Gagne said. “There’s a very limited number of exemptions.”



In a January 2015 ruling, Judge Mary Lou Rup wrote that while Gagne acted in “good faith” in investigating the earlier Easthampton crash, “a citation not issued in compliance with the so-called ‘No Fix’ statute is invalid and charges stemming from the citation must be dismissed.”



The DA’s office has appealed Rup’s decision.



Gagne said the DA’s office first learned of the Fox case this week, but any actions related to the case best lie in the hands of the Belchertown Police Department and Select Board.



“It’s our collective opinion that we don’t have any viable criminal options at this point,” Gagne said of the DA’s office. “That ship has sailed.”



He also said that if the DA’s office attempted to pursue charges against Fox it could raise questions of prosecutorial ethics, knowing that such a case would not hold up in the courts given the circumstances and the law.



In a statement Thursday, Northwestern District Attorney David Sullivan said, “Although the alleged facts and circumstances of the case are troubling, the District Attorney’s Office does not have an official role in this matter, since at the time of the offense no citation was issued and no arrest was made.”



Sullivan went on to say, “Any questions regarding the manner in which this incident was handled are more properly addressed to the Granby and Belchertown Police Departments, and their respective town officials.”



Police driving issue



The alleged drunk-driving stop of Fox is hardly an aberration involving law enforcement officers, including those who do not face arrest in similar circumstances.



A Boston Globe report in 2014 found that at least 30 Massachusetts law enforcement officials have been charged with drunken driving while off-duty since the start of 2012.



The review found that some officers resigned or were placed on unpaid leave after the charges, though a majority kept their jobs, sometimes after a short suspension.



“The drunken driving tally is almost certainly low because not every arrest is widely reported and officers sometimes let their peers off the hook, a practice known as ‘professional courtesy,’ ” the newspaper reported.



Dan Crowley can be reached at dcrowley@gazettenet.com.





