Section Review

Understanding the new drunk driving statute

The operating under the influence statute of Massachusetts has been revised a remarkable 18 times since 1991. The result of such continual reworking has been a complicated law that is increasingly difficult even for experienced criminal law practitioners to keep up with its intricate, almost circuitous nuances and technicalities.

While arguably the most constantly modified and altered law in recent decades due to the political popularity of cracking down on drunk drivers based on legitimate, sincere concerns, the constant changes have not been a broad-based assault on drunk driving, including such things as education and prevention and civil penalties for owners of public establishments. This, despite the fact that, for example, civil penalties have been previously effective in other areas of public safety, such as the drop in smoking after tobacco companies became accountable. Instead, the new laws have been focused almost exclusively on increasing criminal penalties (though this most recent bill did not increase a single penalty for a convicted subsequent offender) and making it easier to convict drunk drivers.

The latest modifications were embodied in Melanie's Law. While critics who had some due process concerns about this recent bill were demonized as defense lawyers whose selfish self-interests were the motivation for their opposition to parts of it, the irony is that the exact opposite is true. If selfish self-interest was the sole motivation, then the passage of this bill could be looked at as a boon to criminal defense lawyers, since their services will be needed more than ever, either to handle the expected increase in the number of trials generated by this law or to interpret the increasingly elaborate complex statute.

The following is the new OUI law as of November 2005:

Breath test refusals:

•  No 15-day temporary license after refusal.

•  The vehicle will be impounded for 12 hours after the arrest and no one, not even friends or family members, will be permitted to pick it up earlier.

•  A suspension due to refusal must run consecutively with any other suspension, such as that imposed for conviction. Until now, a judge could order that such suspensions run concurrent, although the order was non-binding to the registry. However, the registry, within its discretion, generally granted such nonbinding orders.

•  Upon a not guilty verdict, nolle prosequi or dismissal, a judge has the discretion to restore a license suspended for breath test refusal. There is a rebuttable presumption that the license be restored unless the commonwealth establishes, by a fair preponderance of the evidence, that this would endanger public safety. In that case, the court must issue written findings of fact to support its decision not to restore the license.

•  No hardship license for first offenders is available due to the suspension until there has been a 24D disposition.

•  The length of the suspension for breath test refusals is as follows:

1. First offender: 180 days

2. First offender under the age of 21:
3 years

3. Second offender: 3 years (but a
continuance without a finding does
not count as a prior conviction for these purposes).

4. Second offender (if first offense was OUI with serious bodily injury):
10 years

5. Second offender (if first offense was OUI motor vehicle homicide or manslaughter by motor vehicle):
Lifetime

6. Third offender: 5 years

7. Fourth offender: Life

Breath test failures (b.a.c. of .08 or higher):

•  Loss of license for 30 days or until the case is disposed of by trial, plea or dismissal, whichever comes first.

•  If under the age of 21, a loss of license of 180 days for breath test result of .02 or greater.

•  Automobile impounded for 12 hours following arrest, regardless of who comes to pick it up.

•  Breath test failure is considered a "per se" violation of the law and is admissible in prosecution as long as it was conducted properly.

Penalties for conviction:

First offense over the age of 21:

•  License loss of one year (with 24D alternative disposition, license loss is 45 to 90 days).

•  Probation for not more than two years.

•  A period of incarceration in the house of correction for not more than two-and-a-half years. Incarceration may be served on weekends, evenings and holidays.

•  A fine of not less than $500 or more than $5,000.

•  Community service may be assessed.

•  Under 24D program, entry into an approved alcohol education program, the payment of the costs of such program, assessments and probation supervision fees.

•  The 24D program is still available after conviction by trial.

•  The 24D program is not available in the cases of death or serious bodily injury.

•  Within the discretion of the judge, the first offenders program is available "once in a lifetime" to a second offender if the date of the incident that resulted in the one prior conviction occurred more than 10 years earlier than the second offense. However, in this situation, the offender will still need the new ignition interlock device on the vehicle during this period of use of a hardship license.

•  Unlike the previous procedure, if a first offender legally resides out of state or is a full-time student out of state, that offender may take an equivalent alcohol education program out of state.

First offense under the age of 21

•  License loss of 210 days, even with 24D program.

•  An additional license loss of 180 days, but this may be avoided by enrolling in a special underage drinking program.

•  If the breath test result is .20 or over, the offender, aged 17-21 inclusive, must take a specially designed driver alcohol treatment and rehabilitation program called the "14-day second offender in-home program."

Second offense

•  Not less than 60 days nor more than two-and-a-half years in the house of correction (30 days of this is mandatory).

•  Alternative sentence is a mandatory 14-day, in-patient treatment program with aftercare as determined.

•  Two-year loss of license.

•  Two years of probation.

•  Fine of $600-$10,000.

Third offense

•  180 days to two-and-a-half years in the house of correction (150 days of that is mandatory) or two-and-a-half to five years in state prison.

•  May serve it at a specially designated D.O.C. facility for alcohol programs.

•  Eight-year loss of license.

•  Fine of $1,000-$15,000.

Fourth offense

•  Two to two-and-a-half years in the house of correction or two-and-a-half to five years in state prison (one year of that is mandatory).

•  Ten-year loss of license.

•  Fine of $1,500-$25,000.

Fifth offense or more

•  Two-and-a-half to five years in state prison (two years of that is mandatory).

•  Lifetime loss of license.

Hardship Licenses

•  First offender is eligible for a 12-hour hardship license (for work/education) within three business days of disposition if (a) enrolled in an alcohol education course, even if classes have not yet commenced and (b) demonstrates to the Registry of Motor Vehicles that not having one presents a hardship. Once the disposition is made, this hardship license is also good for use during the loss of license period imposed by a first offender's breath test refusal.

•  Second offender eligible for 12-hour hardship license after one year with ignition interlock device. New license may be requested after 18 months. In the case of a second offender who, because the first offense was more than 10 years earlier, was permitted to take the 24D first offenders program this time, there is still a requirement for the ignition interlock device during any period of a hardship license.

•  Third offender eligible after two years with ignition interlock device. Device must be in service for two years. New license may be requested after four years.

•  Fourth offender eligible after five years with ignition interlock device. Device must be in service for two years. New license may be requested on a limited basis after eight years.

•  Fifth offender - no hardship license available.

Introduction of certified copy of prior conviction allowed without requiring corroborating evidence or live witness testimony

•  May be introduced through:

1. Certified attested copies of original court papers.

2. Certified attested copies of the defendant's biographical and informational data from records of the department of probation, any jail or house of corrections, the Department of Correction or the registry, which shall be considered prima facie evidence that the defendant has been previously convicted.

•  Documents are self-authenticating and admissible after the commonwealth has proven guilt on the primary offense.

New offense of manslaughter by motor vehicle

The difference between the charge of motor vehicle homicide and this new offense of manslaughter by motor vehicle is the enhanced sentencing.

•  A period of incarceration for five to 20 years in state prison. Five years of that sentence is a mandatory minimum without eligibility for parole or good time. However, one may be eligible for a work release program.

•  A fine of not more than $25,000.

•  License suspension by the registrar of motor vehicles minimally for 15 years and up to life. Person may appeal registrar's decision to the Superior Court, which may reduce the period of suspension, but not to less than the mandatory 15 years.

New offense of child endangerment by operating a motor vehicle

This new law pertains to anyone convicted of an alcohol-related offense with a child 14 years of age or younger in the motor vehicle.

•  A period of incarceration in the house of correction for not less than 90 days nor more than two-and-a-half years.

•  A fine of $1,000-$5,000.

•  Second offense carries a sentence of not less than six months or more than two-and-a-half years in the house of correction or by imprisonment in state prison for not less than three years or more than five. Six months of that sentence is a mandatory minimum without eligibility for parole or good time. However, one may be eligible for a work release program.

•  Sentence must be served consecutively with predicate violation.

•  Loss of license of one year for a first offense and three years for a second or subsequent offense.

Forfeiture of motor vehicle

For fourth offense or higher, prosecutors may file for civil forfeiture of the motor vehicle if vehicle is also in the offender's name. A portion of the proceeds from the sale will go to the district attorney's office.

In cases where the motor vehicle is jointly owned, prior to the offense, with, for example, a spouse, the claimant will have the burden of proving to the court's satisfaction that the property is not forfeitable because the claimant is dependent upon it for employment or the maintenance of one's family.

Offenses concerning violations of new ignition interlock device

The ignition interlock device must be installed on each vehicle owned, leased or operated by the offender. It must be blown into and will not permit operation if the b.a.c. is .02 or higher. The device is to be installed for a period of two years. (It is currently unclear when the two years begins to run, but it is reservedly presumed that it begins at the time the new license is issued.) The licensee is responsible for having the device regularly inspected, maintained and monitored.

1. Driving without an ignition interlock device when one is required

•  Period of incarceration for 180 days to two-and-a-half years in the house of correction or two-and-a-half to five years in state prison. Of that, 150 days is a mandatory sentence without parole or good time, but one may participate in a work release program. May be served in a specially designated D.O.C. alcohol facility.

•  A fine of $1,000-$15,000.

2. Tampering with an ignition interlock device

•  Period of incarceration for six months to two-and-a-half years in the house of correction or three to five years in state prison.

3. Breathing into an ignition interlock device for a restricted person

•  Period of incarceration for six months to two-and-a-half years in the house of correction.

•  A fine of $1,000-$5,000.

•  Second or subsequent offense of three to five years in state prison.

Whoever, on two or more occasions, removes such a device or fails to have it regularly inspected, maintained and monitored or records a b.a.c. of over .02 after blowing into it, may have their license revoked by the registrar of motor vehicles for an extended period or for life. A person may appeal this decision to the Superior Court.

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