IPSWICH — A driving instructor from Salem is facing drunken-driving charges in an incident where police say he was drunk while giving lessons to two students last December.

Daniel Winsky, 52, of 26 Andrew St., Salem, pleaded not guilty at his arraignment yesterday in Newburyport District Court. He was released on his own recognizance.

Winsky was giving lessons to two local teenagers in Ipswich on the day after Christmas, police said in a lengthy report. He had one of the students pull into a Cumberland Farms on Central Street, telling them he needed some caffeine. The students would later tell police they didn't notice anything wrong or smell any alcohol, though they did note that Winsky was always sipping from a bottle of Robitussin cough syrup.

He told the students he was drinking the cough syrup because, "all the kids are sick, and he doesn't want to get sick," one of them told police.

Inside the store, however, customer Jane Schaller noticed a strong smell of alcohol. So did clerk Laura Sparaco, who told officers the smell of alcohol was so overwhelming she "felt as if she had to vomit."

Sparaco is the sister of Lisa Sparaco, an Ipswich teen killed in a 2003 drunken-driving crash. She has been involved in several efforts to curb drunken driving since that tragedy.

The two women grew even more concerned when they saw Winsky, who had purchased a soda, get into the passenger seat of the Anthony's Auto School car. Schaller called police.

Winsky was stopped on High Street (Route 1A).

A portable breath test showed a blood alcohol level of .23, nearly three times the legal limit, according to the report. But the results of that test are not admissible in court because the portable devices are not considered as reliable as the machines used at the police station. Officers said they conducted two field sobriety tests, one of them to measure gaze, the other an alphabet test, and concluded that Winsky was drunk.

Police did not initially arrest Winsky, however. Instead, they called his boss and drove the students home. They later filed the drunken-driving charges, following a hearing before a court clerk.

But because Winsky was not arrested at the scene, he was not given the chance to take or refuse a Breathalyzer test at the station — and because of that, he will not lose his license, at least while the case is pending.

Still has license

Judge Allen Swan rejected a request from prosecutor Kate Hartigan to suspend Winsky's driver's license, saying he has "no statutory basis" to suspend the license because Winsky was not arrested. Immediately after the incident, The Registry of Motor Vehicles revoked Winsky's permit to teach driving.

At issue will be whether Winsky can be convicted of operating under the influence of alcohol even though he was in the passenger seat. Prosecutors argue that because the car had a second brake pedal on the passenger side and Winsky actually helped his teenage student pull over when Ipswich police caught up with him, they can prove their case.

Winsky's lawyer, John Morris, disagrees, saying prosecutors cannot prove that Winsky was driving the car, a basic element of the charge.

And, he argued, it will be difficult for them to prove Winsky was drunk, since the students did not smell alcohol in the car and the women in the store did not notice Winsky staggering or exhibiting other behavior indicating he was visibly drunk. Police did not find any alcohol in the car, and the portable breath test is not considered evidence.

Winsky told police he had been drinking the day before — "Of course, it was Christmas," he told them — but denied having anything to drink that day. He also told police he felt embarrassed to have been pulled over in a driving school car.

"He did nothing wrong, and we will be taking this to trial," his lawyer said outside court.

Winsky has lost his job and hasn't been able to find a new one in the weeks since the incident, his lawyer said.

A call to the driving school, which is based in Boxford, was not returned.

The names of the teenagers, a boy and a girl, were blacked out on police reports filed with the court, although it's unclear why, since neither was charged with a crime.

Winsky is due back in court on April 24 for a pretrial hearing.