Massachusetts Melanie's Law Explained

The following is a summary of the new Massachusetts Melanie's Law. The following topics are covered in this article:

If one chooses to refuse a breath test in Massachusetts
Length of the suspension for breath tests refusals
Breath test failures (b.a.c. of .08 or higher)
Massachusetts penalties for drunk driving conviction
Massachusetts Hardship Licenses
New Massachusetts offense of manslaughter by motor vehicle
New Massachusetts offender of child endangerment by operating a motor vehicle
Offenses concerning violations of new ignition interlock device

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 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, 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.

The above information provided by Massachusetts Bar Institute, Section Review. Understanding The New Drunk Driving Statute, Elikan T. Peter, Vol 8, No 1 2006.