Repeat drunken driver who refused breath test gets license back


By Julie Manganis
Staff writer | Posted Dec 28, 2011

SALEM — A repeat drunken driver who beat his latest case in June after a judge concluded that the driveway to a public housing complex in Middleton was not a "public way" persuaded that same judge to reinstate his driver's license last week.

Sean Cusack, 44, of Hamilton was driving a plow and had his 5-year-old son with him when he crashed into a home at 5 Memorial Drive in Middleton in January. Cusack had been privately hired to plow out one tenant in the development.

Cusack allegedly admitted to having three beers; a search turned up a nearly empty pint-sized bottle of vodka in the truck. He refused a Breathalyzer test.

Because Cusack had already been convicted of drunken driving twice before, that refusal of a breath test alone, regardless of the outcome of the case, would have normally triggered a five-year license suspension by the Registry.

But on Thursday, Judge Richard Mori ordered that Cusack's license be reinstated immediately.

Defense lawyer Joseph Waldbaum filed a motion seeking reinstatement of the license earlier this month, citing Mori's earlier decision to acquit Cusack, Cusack's participation in alcohol treatment and Alcoholics Anonymous, and the financial hardship that his most recent arrest and the months he spent in custody awaiting trial had caused his family.

Prosecutor Aimee Conway objected to the request, suggesting that the acquittal was solely based on a recent Appeals Court decision that narrowed the definition of a public way and saying that there remained "clear evidence of intoxication" at the time of the crash.

That Appeals Court decision, released in May, was from a divided panel; two members concluded that the definition of a "public way" does not extend to the driveways or parking area of a home or complex, while one justice suggested that the word "place," also in the drunken-driving statute, would cover such areas. The decision came down just days before Cusack's trial.

Mori told the prosecutor his hands were tied.

"The standard set out by the Legislature is the return of the license to the defendant," Mori told Conway.

While the judge acknowledged that the statute allows for judges to use their discretion, Mori said he would not do so based solely on the facts of the case.

Cusack will have to have an ignition interlock device installed on whatever vehicle he drives — though in 2009, while on probation for a 2007 drunken-driving conviction, he was found to have violated that requirement.

The 2007 conviction came after Cusack left the scene of a hit-and-run crash in the parking lot of Hamilton's Community Package Store, then was found passed out at the wheel of his own truck in the driveway at Cutler Elementary School around 3:30 p.m. on Oct. 5, 2007.

He also was convicted of drunken driving in 1984 in Lynn.