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1. Topazio, Steven: MASSACHUSETTS DRUNK DRIVING LAWS - MELANIE'S LAW The laws in the area of drunk driving are getting tougher and the penalties more severe as the result of recent legislative action. The Commonwealth of Massachusetts recently passed "Melanie's Law" on October 28, 2005, which added a number of new, harsher penalties to the drunk driving laws in the state. A drunk driving offense which at one time was removed form an individual's record for purposes of prior convictions, every six years, will now follow you for the rest of your life if convicted. The penalties include a loss of your driver's license, paying fees for being placed on probation, attending drunk driving programs and even serving mandatory jail time. Every DUI conviction after the first one becomes progressively much more serious and will have profound implications on your future. Under Massachusetts Law drunk driving is called Operating Under the InfluenceÊor "OUI"Ê. In this area of law, the Government has the option of prosecuting you under one ofÊtwo separate theories.Ê The first theory the government can proceed under is referred to asÊthe "impaired" theory. In this type of case the Government uses the observations of the police, including the individual's performanceÊonÊ field sobriety tests, to prove that the driver's ability to operate a motor vehicle safely was impaired through the consumption of alcohol.ÊThe second theory is called the "per se" theory. Under this theory the Government uses the officer's observations and the results of a Blood Alcohol Test to obtain a conviction if it can prove that anÊindividual 21 or olderÊdrove a motor vehicle on a public way with a blood alcohol reading of .08 or higher. WHY FIGHT A DRUNK DRIVING CHARGE? A conviction, plea of guilty or admission to sufficient facts to an OUI charge will be a permanent part of your driving record. Penalties range from probation, loss of license, fines, alcohol education programs, in patient hospitalization, up to incarceration. In the past, OUI convictions "came off" your record after 6 years. Today, with the passage of Melanie's Law (discussed below), every OUI conviction you ever had is considered by the Commonwealth when prosecuting you. The punishment for multiple offenders escalates. Moreover, a conviction, guilty plea or admission to sufficient facts plea is reported to the Massachusetts Registry of Motor Vehicles, which in turn, reports it to the National Driver's License Registry. These computer records are accessible to driver's licensing agencies nationwide. WHAT IS DRUNK DRIVING? Nothing is quite as frustrating as attempting to plod through the confusing language of Massachusetts drunk driving laws embodied in General Laws chapter 90, section 24. Expertise in understanding the various elements of a drunk driving crime and a well planned strategy become all the more important in light of the new drunk driving legislation know as Melanie's Law. Massachusetts General laws Chapter 90, Section 24(1) (a) (1) states: "Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and one-half years, or both such fine and imprisonment." In other words, a drunk driving charge, (also referred to as DUI, "Driving Under the Influence", DWI, "Driving While Impaired" or OUI "Operating Under the Influence") under Massachusetts law is composed of three elements that a prosecutor has to prove beyond a reasonable doubt in order to convict you. The prosecutor must prove that you were: 1) operating a motor vehicle; 2) on a public way or any place to which the public has a right of access; and 3) while you were under the influence of intoxicating liquor. Most drunk driving trials focus on the third element, whether the person is "under the influence" of alcohol. WHAT DOES "UNDER THE INFLUENCE" MEAN? Drunk driving does not mean that you have to be drunk to be convicted of this crime. More often than not, most defendants in drunk driving cases maintain that they were not "drunk" when arrested. Massachusetts law however does not require that you be "drunk" to be guilty of OUI. Under current law, the prosecutor only has to establish that your ability to operate a motor vehicle safely has been impaired, by the consumption of alcohol. The Commonwealth does not even have to prove the defendant actually drove in an unsafe or erratic manner; only that alcohol diminished the defendant's ability to drive safely. Additionally, with the passage of Melanie's Law, you are also assumed to be intoxicated if your blood alcohol reading is .08% or above for individuals 21 or older or .02 or above for individuals under 21. This is called the "per se" rule. FIELD SOBRIETY TESTS Field Sobriety Tests such as the Nine Step Walk and Turn test, One Leg Stand test, Horizontal Gaze Nystagmus test, are roadside examinations used by the police to establish probable cause to arrest you if he suspects youÊof OUI. In Massachusetts, an operator has a right to refuse to perform field sobriety tests. If you submit to field sobriety tests you only provide evidence to the investigating police officer who will use his observations against you if your case goes to court. Field sobriety tests are standardized tests developed by the National Highway Traffic Safety Administration.ÊStandardized field sobriety tests supposedlyÊdemonstrate validated indicators or cues of a person's impairment. When the tests are administered in the manner detailed by the National Highway Traffic Safety Administration and an officer observes those cues, it allows him to establish probable cause to believe an operator is impaired so that he canÊarrest that person for OUI. Field sobriety tests are not foolproof and are often unreliableÊif administered incorrectly, in an inappropriate setting or given to an inappropriate candidate. Even if administered correctly,Êthe National Highway Traffic Safety Administration claims thatÊthere are large degrees of unreliability associated with these tests,Êand in some casesÊas much as 35%. When a police officer uses other field sobriety tests, such asÊpicking up coins, counting backwards or touching finger to nose,Êto evaluate sobriety, the test results are even more unreliable.ÊThere is no scientific validation for non standardizeÊtests whichÊoffer little or no documented reliability for the officer to accurately detect impairment.ÊIf the test is unreliable then it can be argued that the test results should be excluded or their impact diminished at time of trial. BLOOD ALCOHOL CONTENT and BREATH TESTS Massachusetts recently became a "per se" state. This means that if your breath or blood are tested and the result is .08 or above, you will be found guilty if and only if the judge or jury believes the test was conducted properly and the reading was accurate. For drivers under 21, an alcohol content of .02 or above must be demonstrated. There are many reasons why the test may not be used against you. This may be as a result of poor record keeping by the police, machine malfunction or an improperly administered test. A trained lawyer knows what to look for when evaluating the reliability of breath tests. It is important to get legal advice before admitting to anything. SUMMARY OF LAW CHANGES UNDER MELANIE'S BILL If one chooses to refuse a breath test in Massachusetts ¥ 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 nonbonding 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 the 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 tests refusals is as follows: ¥ First offender: 180 days ¥ First offender under the age of 21: 3 years ¥ Second offender: 3 years (but a continuance without a finding does not count as a prior conviction for these purposes). ¥ Second offender (if first offense was OUI with serious bodily injury): 10 years. ¥ Second offender (if first offense was OUI motor vehicle homicide or manslaughter by motor vehicle): Lifetime ¥ Third Offender: 5 years ¥ 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 the prosecution as long as it was conducted properly. Massachusetts penalties for drunk driving 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 the 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 isavailable "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, t he 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 outside 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 or 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 interrogatories eh 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 $1,5000-$25,000. Massachusetts 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 information classes have not yet commenced and (b) demonstrates to the Registry of Motor Vehicle 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: ¥ Certified arrested copies of original court papers: ¥ 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 Corrections 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 Massachusetts 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 vehicle 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 Massachusetts offender 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 without 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 o 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, leases or operated by the offender. It must be blown into and will not permit operation of 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 license 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 corrections 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 ¥ Tampering with an ignition interlock device ¥ Period of incarceration for six months or two-and-a-half years in the house of correction or three to five years in state prison. ¥ Breathing into an ignition interlock device for a restricted person ¥ Period of incarceration for six months to two-and-a-half in the house of correction ¥ A fine of $1,000-$5,000 ¥ Second or subsequent offense of three to five years in 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 of ran extended period or for life. A person may appeal this decision to the Superior Court.
2. Stephen J. Weymouth: DWI/Driving While Intoxicated: A DWI occurs when someone is operating, or is in actual physical control, of a motor vehicle while under the influence of alcohol or other controlled substance to the extent that their mental faculties are impaired and/or their blood alcohol content (BAC) is above the legal limit. Even for a first offense, penalties can include license suspension, substantial fines, community service, mandatory attendance at a state or DMV approved alcohol program, mandatory overnight incarceration and the required installation (at the offender's expense) of a car ignition locking device. In addition, a DWI conviction stays on a DMV record for several years, it typically results in higher insurance premiums, and an offender may become ineligible for credit. Plus, a DWI could also jeopardize your employment opportunities. However, if someone was injured as a result of the drunken driving accident, it is possible the defendant will be charged with a felony (and if the victim dies, the driver may be charged with vehicular manslaughter). Further, a DWI conviction will likely be raised to a felony if it is the driver's fourth DWI offense or the driver has had a prior felony DWI offense within 10 years of the new charge.