Peter Elikann has chaired educational programs teaching drunk driving law to lawyers across the state. He has led the programs in Springfield, Boston, Taunton and Worcester. He has been trying drunk driving cases for more than two decades now. The following is an article summarizing the latest drunk driving law that Attorney Elikann wrote as soon as the law was passed. The Office of the Commissioner of Probation distributed it to every probation officer in the state and it was used to help educate judges and prosecutors on the new law.
SUMMARY OF THE NEW O.U.I. STATUTE
By Peter Elikann (originally published in Lawyer’s Journal)
The following is the new OUI law (Melanie’s 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 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 rebuttal 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:
- First offender: 180 days
- First offender under the age of 21: 3 years
- 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).
- Second offender (if 1st offense was 10 years OUI with serious bodily injury)
- Second offender (if 1st offense was Lifetime OUI motor vehicle homicide or manslaughter by motor vehicle)
- Third offender: 5 years
- Fourth offender: Lifetime
- 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 Drunk Driving 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.”
- 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
- 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
- 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
- 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:
- Certified attested 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 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 the second or subsequent offense.
Forfeiture of Motor Vehicle
For fourth offense or higher, prosecutors may file for civil forfeiture of the motor vehicle if the 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.
- 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.
- 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.
- 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.
Attorney Peter Elikann is exceptionally familiar with the law concerning operating under the influence and other motor vehicle offenses in Massachusetts and has handled these case for almost three decades
If you need representation for a drunk driving case or any other motor vehicle offense, contact Attorney Peter Elikann for a 100 % private and confidential consultation at 617-742-9462.