Boston Drunk Driving Lawyers
- Peter Elikann:
New Massachusetts Drunk Driving (O.U.I.) Law
By Peter Elikann
The following is the new Massachusetts OUI law (Melanie's Law):
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 non-binding
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 (a continuance without a finding
does not count as a prior
conviction for these purposes, according to the law, but it is
unclear whether the Registry of Motor Vehicles will recognize
this).
4. Second offender (if 1st offense was 10 years
oui with serious bodily injury)
5. Second offender (if 1st offense was Lifetime
oui motor vehicle homicide or
manslaughter by motor vehicle)
6. Third offender: 5 years
7. Fourth offender: Lifetime
8. Fifth offender: Lifetime
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 1 year (with 24D alternative disposition
license loss is 45 to 90 days)
Probation for not more than 2 years
A period of incarceration in the House of Correction for not
more than 2 1/2 years. Incarceration may be served on weekends,
evenings and holidays.
A fine of not less than $500 or more than $5000.
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 that 2 1/2 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
2 year loss of license
2 years probation
Fine of $600-$10,000
Third offense
180 days-2 1/2 years in the House of Correction (150 days
of that is mandatory) or 2 1/2 years-5 years in State Prison
May serve it at a specially designated D.O.C. facility for alcohol
programs
8 year loss of license
fine of $1000-$15000
Fourth offense
2 years- 2 1/2 years in the House of Correction or 2 1/2-
5 years in State Prison (1 year of that is mandatory)
10 year loss of license
fine of $1500-$25000
Fifth offense or more
2 1/2- 5 years in State Prison (2 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 3 business days of disposition if
(a) enrolled in 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 1
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 2 years with ignition interlock
device. Device must be in service for 2 years. New license may
be requested after 4 years.
Fourth offender eligible after 5 years with ignition interlock
device. Device must be in service for 2 years. New license may
be requested on a limited basis after 8 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 5-20 years in State Prison. 5 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 that may reduce 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 2 1/2 years.
A fine of $1,000-$5,000.
Second offense carries a sentence of not less than 6 months or
more than 2 1/2 years in the House of Correction or by imprisonment
in State Prison for not less than 3 years or more than 5. 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 1 year for first offense and three years for
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 2 years. (It is
currently unclear when the 2 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- 2 1/2 years in the House
of Correction or 2 1/2- 5 years in State Prison. 150 days of
that 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 6 months- 2 1/2 years in the House
of Correction or 3-5 years in State Prison.
3. Breathing into an ignition interlock device for a restricted
person
Period of incarceration for 6 months- 2 1/2 years in the House
of Correction.
A fine of $1,000- $5,000
Second or subsequent offense 3-5 years in State Prison.
Whoever, on 2 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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