Legislation to increase public safety in the wake of tragedy is not new. Transportation safety laws were enacted after 9/11; worker and fire safety laws were enacted after the Triangle Shirtwaist factory fire; over-the-counter medicines were repackaged to include safety seals after the Tylenol poisonings.
In the wake of a 13-year-old Marshfield girl’s death after being struck by a repeat OUI offender, Massachusetts legislators recently targeted the public dangers of drunk driving: they passed legislation to impose new penalties on those who are repeatedly convicted of drunken driving — “Melanie’s Law.”
Melanie’s Law is a well-intentioned attempt to end drunk driving, but many wonder whether it will accomplish its purpose. More importantly, will an OUI defendant’s civil liberties be lost in the rush of political correctness?
Politically charged atmosphere
No one would say he supports drunk driving, but, according to many defense attorneys, passing a law grounded on the emotional turmoil of a child’s death takes away rational consideration of the pros and cons of the legislation and makes it into a political situation.
“I’ve watched us engage in a pattern of demagoguery up there where politicians feel compelled to beat their chests and exclaim how they’ll be tougher on criminals without recognition of the diminution of what I consider to be closely-held, constitutional protections to a fair trial,” said state Rep. James Fagan, D-Taunton.
He added, “Basic, media-fanned hysteria, combined with the frustration and anger we all feel when we see serious bodily injury, makes members of the Legislature willing to trade away constitutional protections we were sworn to uphold for the political comfort it gives them to be able to say, ‘I voted for a tougher law.’ That makes no sense.”
Criminal defense lawyer Peter Elikann believes Massachusetts OUI provisions are probably the most political of all the state’s criminal statutes. According to Elikann, Massachusetts drunk driving laws have been revised 18 times since 1991. “It’s important that we find bona fide ways to fight drunk driving and not just engage in political symbolism, as we do from time to time on some of these laws,” said Elikann.
MBA General Counsel Martin W. Healy said that attaching names to potentially explosive legislation like drunk driving bills complicates the debate further.
“Legislative debates surrounding OUI legislation tend to be highly charged and the waters become very muddied,” Healy said. “There has been a real trend developing where proponents of criminal justice measures are putting a human face and name attached to the bills in an effort to insulate it from appropriate review and valid criticism. The proponents create a human shield to inoculate it from attack.”
Former Massachusetts Bar Association President Edward P. Ryan Jr., among others, is outraged at public and media attempts to vilify defense lawyers or legislators for attempting to strike a balance with respect to punishments in the legislation. According to Ryan, “Everyone has a point of view, and defense lawyers are familiar with the operation of the law and have every right to be heard on the draconian sanctions [of the law].”
The new law allows certified court records to be introduced to prove prior convictions and doubles minimum mandatory sentences for motor vehicle manslaughter to five years in drunken driving cases. Anyone convicted of driving drunk with a suspended license faces a mandatory minimum one year in jail.
The law also requires repeat offenders to have interlocking devices installed in any vehicle they drive. The devices are intended to prevent ignition if the driver is drunk.
Other provisions of the new law include:
• Increased license suspension for refusal of the Breathalyzer, a 10-year suspension for refusal where an accident results in serious bodily injury, and lifetime suspension for refusal where an accident results in death
• Elimination of the “temporary permit” immediately given to drivers currently after their licenses are suspended for refusing the Breathalyzer
• Mandatory 24-hour vehicle impoundment for drivers who refuse the Breathalyzer
• Creation of a new aggravated OUI offense to be charged when a defendant has a blood alcohol level of .2 percent or higher
• Creation of a new child endangerment by OUI offense to be charged when an alleged drunken driver is transporting a minor 14 or younger
• Creation of a jail penalty for tampering with an interlock device
• Mandatory lifetime license revocation for anyone who has previously been convicted of an OUI resulting in death and who is convicted again for driving drunk
• Mandatory alcohol assessment for anyone with a blood alcohol level of .15 percent or higher
• Increased penalties for knowingly allowing someone under a license suspension for drunken driving to use an automobile.
Ex post facto law
Richard L. Zisson, Esq., of Zisson & Veara in Dedham, finds the combination of Melanie’s Law with the previous legislative abandonment of the 10-year look back provisions troubling.
Zisson cited as an example a client who received two OUI citations in rapid succession while attending the University of Massachusetts 25 years ago. Recently, while driving home from a family celebration, she was stopped and was charged with her third OUI. “She is a prominent citizen, a nurse, living the American dream, with no alcohol problems. But she was charged with a felony,” said Zisson.
Fagan believes that the end result of the law will not be the deterrence of serial drunk drivers but will instead have the unintended result of trapping two classes of people: white men age 50 and older, and single mothers between 37 and 50 who may have had one or two prior alcohol events 15 to 20 years ago.
“People who are going to fall under the new provisions have little or no other criminal record or history, have largely been productive members of society, but with problems with alcohol. They work, pay mortgages, and their ability to do that will be seriously jeopardized by the many mandatory and completely unbending penalties we’ve instituted. We’ve stripped away the discretion of courts and judges to closely examine each case and defendant and paint all of them with the same broad brush. Our experience in 230 years of jurisprudence has taught us broad brush treatment simply doesn’t work,” said Fagan.
“Many aspects of the bill are terribly unfair when viewed in the context of someone who had a transgression many years ago and is not a serial offender,” said Ryan.
“Ex post facto is used to enhance penalties, even though the OUIs happened before the law took effect. I think that’s unfair. Let’s start fresh from when the law was enacted and go forward,” said Zisson.
Elikann added, “It’s hard to make the connection if you got arrested 35 years ago and now get arrested again. I don’t think that’s necessarily proof that they have an alcohol problem and may just be unnecessary overkill at that point.”
Loss of license
Defense attorney Lee Garrison finds it problematic that the Legislature removed the 15-day temporary license provision.
“There is a due process problem with that because the officer who forms an opinion as to the driver’s sobriety becomes the same government entity that summarily suspends or revokes the license without a hearing,” said Garrison.
Fagan added, “People don’t comprehend the enormous amount of power this law has now placed in the police. Even if you had nothing to drink, if you have never had anything to drink, and an officer tells you to take a Breathalyzer and you refuse, your license is gone, you don’t get a hearing. That’s a lot of power. We have taken away the power of the court to be the check and balance on the executive power of the police.”
“Politically, the Legislature was constrained to act in a hurry, and frequently rushed legislation is not the best legislation,” Garrison added.
Proof by certified document
Zisson also takes issue with the government’s new power to advance a prosecution for multiple offenses by the use of certified documents rather than by witness certification.
“Documents make mistakes,” said Zisson. “It is the government’s burden of proof, not the defendant’s, and now the government is relieved of that burden.”
According to Fagan, “We made and continue to make highly punitive changes in Chapter 96, sec. 24, all of them directed at easing the government’s burden of prosecution rather than protecting the defendant’s right to a fair trial.”
“Doing away with discretion in judges’ sentencing and Melanie’s Law are making it easier for the government. By abandoning the requirement of proof the defendant was same party, the judge’s hands are tied,” he said.
Fagan considers this an abandonment of the principles of justice. “Proof beyond a reasonable doubt; it should be difficult rather than easy to convict.”
However, District Court Judge W. James O’Neill doesn’t foresee the use of certified documents to establish a prior record as being a significant problem. “It seemed to take a lot of energy of proponents and critics of the bill, but in the real world, I don’t think it’s going to have much of an impact at all,” said O’Neill.
Issues to be played out
Questions remain about various aspects of the law and its practical application.
Ryan raised the issue of the cost of the ignition-locking device. “How much is it going to cost and who is going to pay for it? To get a hardship license, you may have to have this ignition-locking device. There will be a cost to it. What about people who can’t afford it? Are they denied equal protection if they can’t afford it?” asked Ryan.
Elikann wondered about the seizing of drunk drivers’ cars. “Are you going to take the family car, the car that is also used by the wife to take a child to school? Are certain scofflaws going to try to elude that law by making sure the car is in a spouse’s name? I’m concerned about the impact on a family if the family car is lost.”
Zero tolerance and other proposals
Whether as a political appeasement to Mothers Against Drunk Driving or as a comprehensive solution, the topic of zero tolerance may be the next evolution in the fight against drunk driving.
According to Fagan, “We have acted in the Legislature in what has been the simplest and most guttural reaction, which is simply punish and punish and punish without any thought to prevention… If the Legislature wants to be serious about prevention, at some point it will address zero tolerance, .02 BAC rather than .08.”
Fagan explained that .08 was “a completely arbitrary figure” that creates a comfort zone; people believe they can drink a little, just so long as they don’t drink enough to put them over the .08 limit.
“They engage in what I consider to be completely hypocritical analysis, whereas if we reduce BAC levels to .02 (to compensate for medications and the like) and send the message that the state will not tolerate anyone drinking and driving a car, that would be a significant way to do that,” said Fagan. “[Melanie’s Law] is just a capitulation to the media that we are going to act tougher,” he added.
Ryan suggested, “It’s time to realize that purveyors and providers of alcohol have some responsibility. To continue to increase penalties for drunk driving is not the solution.”
He pointed out that within days of passage of Melanie’s Law, there were a number of arrests, “people completely unfazed by the new penalties,” and that homeowners can escape any responsibility by telling a guest to bring their own alcohol.
In a Nov. 9, 2005 Boston Globe editorial, Ryan proposed, “We should write legislation that makes those who either serve alcohol or allow persons to drink alcohol on their premises liable to victims who are injured or killed by persons drinking to the point of intoxication at these locations. Legislation could require license holders, distributors and manufacturers to air public service announcements warning of the dangers of excessive consumption, the potential criminal penalties and the availability of substantial civil remedies. Make the purchase of liability insurance mandatory.”
“If we are really going to look fairly at the problem of drunk driving, we have to look at all aspects, not just the drunk driver. Facilities that are making a profit from this need to be accountable to some degree for their actions,” said Ryan.
Zisson believes the liquor industry and purveyors should anticipate reforms. He has seen a change in the case law, describing a case where an underage drinker hurt himself. Under that case, “the purveyor was liable based on the drinker’s age, even though he caused his own negligence. So it’s going that way. The liquor industry is taking this seriously because they see this coming.”
Elikann added, “If we are really concerned — truly, legitimately concerned — about lowering the number of dangerous drivers and therefore lowering the number of victims, we should be doing a lot more about drunk driving and not only coming up with new sanctions against drunk drivers each year. That seems one area politicians are focused on almost solely. We could be fighting the problem on many fronts rather than on the narrow focus politicians seem to have.”
Peter Elikann’s article on OUI practice in the wake of Melanie’s Law will appear in the MBA’s next Section Review.