Drinking and Driving

Protect Yourself And Others …
Don't Drink And Drive

By Daniel Karpman Attorney At Law

"Patrol Car No. 1 was dispatched to the intersection of Main Street and Park Avenue on a report of a motor vehicle accident with injuries. Upon arrival, I observed a two-car collision.

Mr. Jones approached this officer during the initial investigation. Mr. Jones stated he was one of the drivers involved in the accident. During this conversation, I could smell a heavy odor of an alcoholic beverage. Mr. Jones was very unsteady on his feet, and was slurring his words.

The other driver involved in the accident stated that he could smell alcohol coming from Mr. Jones.

Mr. Jones was uncooperative and refused to perform any field sobriety tests. Based on my observations, Mr. Jones was placed under arrest.

Mr. Jones was transported to the police station, booked for OUI, and advised of his rights. Mr. Jones was offered a breathalyzer test, which he took. Mr. Jones recorded readings of 0.22 and 0.23." Arrest Report.

It’s not uncommon for people to drink at family gatherings and social events. Unfortunately, people often do not realize how much alcohol they have consumed as they get behind the wheel to drive home. Most people do not think of themselves as potential drunk drivers.

In 1993, approximately 24,000 people were arrested in Massachusetts and charged with operating a motor vehicle under the influence of liquor ("OUI"). Since this offense requires only that a person (a) be able to drive, and (b) has consumed alcohol, the characteristics of potential "drunk driver" offenders know no boundaries of age, income, race, gender, or occupation.

In 1994 and 2003, significant changes were made to the Massachusetts drunk driving law. Then on October 28, 2005, Melanie’s Law was passed. The purpose of this law is to even further enhance the penalties and administrative sanctions for OUI offenders in Massachusetts. Through strict enforcement of the law, the state hopes to keep impaired drivers off the road, and reduce needless deaths and injuries.

The following are the major changes to the Massachusetts drunk driving law:

Melanie’s Law

Melanie’s Law establishes a new offense of Operating Under the Influence of Alcohol and Operating After Suspension for Drunk Driving. This means that a driver who was driving under the influence of alcohol while his/her license was already suspended for OUI, can be charged with two offenses at once: (1) OUI and (2) OUI with a suspended license. The penalty for this offense is a minimum one-year mandatory jail sentence. The maximum punishment is 2.5 years in jail, a $10,000 fine and a one-year loss of license.

Melanie’s Law created a new crime of Operating a Motor Vehicle Under the Influence of Alcohol with a Child 14 Years or Younger in the Vehicle. This means that a driver can be charged with two offenses at once: (1) OUI and (2) Child Endangerment While OUI. The maximum punishment for a first offense is 2.5 years in jail, a $5,000 fine and a one-year loss of license. A second offense allows for a maximum punishment of five years in a state prison, a $10,000 fine and a three-year loss of license.

Melanie’s Law allows the Registry of Motor Vehicles (RMV) to cancel the registration plates of anyone convicted of a third or subsequent alcohol-related driving offense for the duration of the suspension period.

Melanie’s Law eliminates the 15-day temporary license after refusal or failure of a breathalyzer test. In addition, the operator’s vehicle will be impounded for 12 hours.

Melanie’s Law creates a new crime of Manslaughter by Motor Vehicle. The penalties range from a five year minimum mandatory sentence to a maximum of 20 years in state prison, a $25,000 fine and loss of license from 15 years to lifetime.

Starting January 1, 2006, any driver with a second or subsequent OUI offense who is eligible for a hardship license or for license reinstatement will be required to have an Ignition Interlock Device (“IID”) installed in any vehicle the driver owns, leases or operates (including an employer’s vehicle) at the driver’s expense. Once the IID is installed, the driver must pass a breath test before starting the vehicle. Any blood alcohol reading of greater than 0.02 will prevent the vehicle from starting.

A driver with a hardship license must use the IID for the entire duration of the hardship license and for two additional years after the license has been reinstated.

If a driver with two or more OUI offenses is eligible for license reinstatement, the IID is required for two years.

Installation of the IID is a mandatory condition for the issuance of a hardship license or for license reinstatement.

Failure to comply with the IID requirements will result in a license revocation from 10 years to life.

Tougher Limits

A significant provision of the law is the lowering of the blood alcohol level at which a person is presumed to be intoxicated from 0.10 to 0.08. The driver's license will be revoked on a 0.08 reading for a maximum of 90 days or until the case is heard in court, whichever comes first.

In 2003, the law was amended to create a "per se" OUI violation. Previously, the law only established an "inference" when the blood alcohol level was 0.08 or higher. Under the "per se" standard, the law prohibits the operation of a vehicle with a 0.08 level or higher.

The law targets drivers under age 21 for more restrictive treatment, by establishing a much lower blood alcohol limit of 0.02 for the purpose of license suspension. The driver's license will be suspended for a maximum of 90 days or until the case is resolved, whichever comes first. Drivers under age 21 who fail the breath test also must complete an alcoholism education program regardless of the outcome of their criminal case, or lose their license for an additional 180 days.

The law expands the definition of who is a repeat offender ("the look back period"). In 1994, the time period a court could look back to calculate repeat offenses was 10 years. As of 2003, there is a lifetime "look back" period. Also, out-of-state convictions will be used to calculate repeat offenses. OUI convictions within the 10-year period will trigger mandatory minimum penalties.

Tougher Penalties

The law requires the police to immediately confiscate the driver's license upon refusal or failure to take a breathalyzer or blood test.

Melanie’s Law eliminates the 15-day temporary license after refusal or failure of a breathalyzer test. In addition, the operator’s vehicle will be impounded for 12 hours.

The license suspension periods for refusing a breathalyzer test have increased as well.

Age Prior OUI Offenses License Suspension Period
over age 21 none 180 days
1 prior 3 years
2 prior 5 years
3 or more lifetime
age 18-21 none 3 years + 180 days
1 prior 3 years + 180 days
2 prior 5 years + 180 days
3 or more lifetime
under age 18 none 3 years + 1 year
1 prior 3 years + 1 year
2 prior 5 years + 1 year
3 or more lifetime

The 2003 law provides an incentive for an individual to take the breathalyzer test by decreasing the suspension period due to failing the breath test from 90 to 30 days. Treatment programs remain available for first offenders upon a finding by the court that the driver would benefit from an alcoholism treatment program. Under this alternative disposition, the driver's license will be suspended for 45 to 90 days. Drivers under age 21 receive a 210-day license suspension.

The 2003 law allows a first offender, upon entering the first offender treatment program in connection with the disposition of the court case, to obtain a "hardship license" to operate a vehicle for a 12-hour period, seven days a week.

The maximum punishment for a first offense is 2.5 years in jail, a $5,000 fine and a one-year loss of license.

A second offense is now punishable by a 30-day mandatory minimum sentence. An alternative disposition requiring a 14-day confinement in an alcoholism rehabilitation treatment program may be allowed by the court. In addition, the judge has the discretion to treat a second offense as a first offense under limited circumstances.

The maximum punishment for a second offense is 2.5 years in jail, a $10,000 fine and a 2-year loss of license.

The new law classifies a third offense and beyond as a felony conviction.

The law mandates a 90-day license suspension for any person under age 21 who purchases, attempts to purchase, falsifies identification to purchase, or knowingly transports alcoholic beverages.

Keeping these provisions in mind may help you or someone you care about make wise choices.

Summary: Massachusetts' Drunk Driving Law

Melanie’s Law

Establishes a new offense of Operating Under the Influence of Alcohol and Operating After Suspension for Drunk Driving. This means that a driver who was driving under the influence of alcohol while his/her license was already suspended for OUI, can be charged with two offenses at once: (1) OUI and (2) OUI with a suspended license.

Creates a new crime of Operating a Motor Vehicle Under the Influence of Alcohol with a Child 14 Years or Younger in the Vehicle. This means that a driver can be charged with two offenses at once: (1) OUI and (2) Child Endangerment While OUI.

Creates a new crime of Manslaughter by Motor Vehicle.

Allows the Registry of Motor Vehicles (RMV) to cancel the registration plates of anyone convicted of a third or subsequent alcohol-related driving offense for the duration of the suspension period.

Mandates installation of the Ignition Interlock Device (“IID”) for the issuance of a hardship license or for license reinstatement; failure to comply with the IID requirements will result in a license revocation from 10 years to life.

Tough Limits

Tough Penalties

New Incentives

The information presented in this article is general in nature, and is for informational purposes only. Please consult with an attorney for legal advice with respect to any specific matter.