Connecticut

Massachusetts

DEFINITION OF OFFENSE

1. Operation of a motor vehicle "while under the influence" of intoxicating liquor or any or drug, or both

2. Operation of a motor vehicle with an "elevated blood alcohol content (BAC), defined as a BAC of . 08% or more or . 02% or more if under age 21

Note: In the first instance, the offense may be prosecuted with or without any direct evidence of a person's BAC. In the second instance, a BAC at or above the statutory level is a per se indication that the offense has been committed

Operation of a motor vehicle "while under the influence" of intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances, or glue vapors

Note: The law does not establish any specific per se BAC level with respect to the criminal drunk driving offense. BAC evidence, depending on the level, raises certain "permissible inferences" at trial.

RELEVANCE OF BAC EVIDENCE TO CRIMINAL CHARGE

BAC of . 08% or more is per se indication of a violation, that is, it stands as evidence of a violation by itself, without reference to additional facts.

Evidence of the accused's BAC at the time of the alleged offense is admissible in a criminal prosecution and deemed relevant to determining whether the offense was committed as long as the test (1) was administered by or at the direction of a police officer, (2) the defendant consented, and (3) results were made available if he requests them and he was given a reasonable opportunity to have another test performed by someone of his choosing at his expense.

BAC evidence raises certain "permissible inferences" at trial. If BAC is . 05% or less, there must be a permissible inference that the defendant was not under the influence of alcohol. If BAC is . 08% or more, there must be a permissible inference that he was under the influence of alcohol. At BACs over . 05% but under . 08% no permissible inference can be made.

BODY MEDIUM THAT CAN BE TESTED FOR BAC

Breath, Blood, or Urine

Breath or Blood

Note: Consent to a blood test is only deemed given when the person has been brought to a licensed medical treatment facility for treatment.

IMPLIED CONSENT LAW APPLIES TO DRUGS

Yes

No

BAC TEST REFUSAL ADMISSIBLE IN CRIMINAL PROSECUTION OF DWI CHARGE

Yes, provided all statutory and procedural requirements for administering the test have been satisfied (i. e. , arrest based on probable cause, notification of constitutional rights, reasonable opportunity to telephone an attorney prior to testing, and notice that license may be suspended for test refusal or results showing an illegal BAC).

No-prohibited by state law, state constitution, and case decisions with respect to a civil or criminal proceeding, but admissible by law in an administrative suspension action before the motor vehicle registrar or when a license suspension is ordered by the court prior to adjudication of criminal charges following failure of police officer to take action against accused's license at the time of the incident.

ADMINISTRATIVE LICENSE SUSPENSION PRIOR TO CRIMINAL PROSECUTION AS CONSEQUENCE OF BAC TEST UNDER IMPLIED CONSENT LAW

TEST REFUSAL

1^st Offense-6 months suspension

2^nd Offense (one previous test refusal or administrative per se violation)-1 year suspension

3^rd Offense (two previous test refusals or administrative per se violations)-3 years suspension

Administrative Process and Procedures Applicable for Both Test Refusals and Test Failures

Based on test refusal or test result showing illegal BAC, police officer immediately revokes license on behalf of motor vehicle commissioner and holds it for 24-hour period (license can be retrieved after 24 hours). Officer must send written report and copy of BAC test results to DMV within three business days. A test refusal must be witnessed by a third party who must endorse the report. Report must state the grounds for officer's belief that person was driving while under the influence.

DMV commissioner may suspend the person's license no later than 30 days after the arrest date. DMV must send suspension notice stating suspension date and right to request a hearing. Hearing request must be made no more than 7 days after date suspension notice was mailed.

If hearing is requested, it must be scheduled before the suspension becomes effective. DMV can grant one continuance of up to 15 days for good cause. Hearing is limited to four issues-

· Did officer have "probable cause" to arrest the person for driving under the influence?

· Was the person arrested?

· Did he refuse to take the test or did he submit to it and did the results of the test, commenced within two hours of vehicle operation, show an elevated (illegal) BAC?

· Was he operating the motor vehicle?

Any negative determination results in reinstatement of driving privilege. Commissioner must render the decision at the conclusion of the hearing or send it by bulk certified mail within 30 days of the initial arrest date (or 45 days if a continuance was granted).

For breath test failures to be considered valid, the first test result must be achieved within two hours of vehicle operation and the second breath sample must be obtained 30 minutes or more after the first result.

1^st Offense-120 days suspension

2^nd Offense (refusal following a previous DWI conviction)-180 days suspension

3^rd Offense (refusal following two or more prior DWI convictions)-1 year suspension

Person suspended for test refusal is entitled to hearing before motor vehicle registrar within 15 days. Hearing is limited to examining three issues-

· Did officer have "reasonable grounds" to believe driver was operating under the influence?

· Was driver placed under arrest?

· Did driver refuse the test?

Driver can appeal registrar's determination to the district court where the alleged offense occurred within 30 days, but this does not stay the suspension. Court can reverse the agency's determination if it feels it exceeded its constitutional or statutory authority, erroneously interpreted the law, acted arbitrarily or capriciously, or made a determination not supported by the facts.

ADMINISTRATIVE LICENSE SUSPENSION PRIOR TO CRIMINAL PROSECUTION AS CONSEQUENCE OF BAC TEST UNDER IMPLIED CONSENT LAW

BAC TEST RESULT OF . 08% OR MORE

. 08% BAC or Higher

. 16% BAC or Higher

. 08% BAC or Higher

1^st Offense

90 days

2^nd Offense

9 months

3^rd Offense

2 years

1^st Offense

120 days

2^nd Offense

10 months

3^rd Offense

2 years,

6 months

For all offenses-

Suspension until DWI charge is disposed, but in no case more than 90 days

Notes: Administrative and procedural process for hearings is the same as described above.

Hardship permit for employment purposes can be obtained provided there are no prior offenses. Permit following a test refusal cannot be give until 90 days of the 6-month suspension have been served.

Notes: Suspended person may request a hearing within 10 days of the suspension. This must be held before the court where the underlying charges are pending, or if the person is under 21 and there are no pending charges, in the district where the arrest occurred.

Hearing is limited to one issue-whether a blood test administered pursuant to law within a reasonable time period after the breath test shows that the person's BAC was less than . 08% (or . 02% if under age 21). If it so finds, the court must restore the person's license and direct the prosecutor to notify the registrar and criminal history systems board of the restoration.

PENALTIES FOR CONVICTION OF CRIMINAL DWI CHARGE

1^st Offense

Fine: $ 500-$ 1,000

Imprisonment:

Six months-48 hours minimum mandatory

OR

Suspended sentence with 100 hours of community service

License Action:

One year suspension

A hardship driving permit for work purposes is available for 1^st offenders only.

1^st Offense

Fine: $ 500-$ 5,000

Imprisonment:

Up to 2 ½ Years-No minimum mandatory term is required

First offender may serve imprisonment term on designated weekend, evenings, or holidays.

Community Service (minimum of 30 hours) may be ordered as a condition of probation, but is not mandatory.

License Action:

One year suspension

(3 months min. mandatory)-work or education hardship license will be considered after 3 months; general hardship license after 6 months

2^nd Offense

Fine: $ 1,000-$ 4,000

Imprisonment:

Two years-120 days minimum mandatory

AND

100 hours of community service

License Action:

Three year suspension (or until age 21 if longer)

2^nd Offense

Fine: $ 600-$ 10,000

Imprisonment:

60 days to 2 ½ years-30 days minimum mandatory

Note: Defendant may serve all or part of the 30-day minimum sentence in a correctional facility specifically designated for incarceration of drinking drivers, to the extent these resources are available.

License Action:

Two year Suspension

(One year min. mandatory)-work or education license will be considered after 6 months; general hardship license after 1 year

Offender must successfully complete 14-day residential treatment program or other court-ordered program prior to license restoration.

3^rd or Subseq. Offense

Fine: $ 2,000-$ 8,000

Imprisonment:

Three years-one year minimum mandatory

AND

100 hours of community service

License Action:

Permanent revocation

3^rd Offense

Fine: $ 1,000-$ 15,000

Imprisonment:

180 days-2 ½ years (or 2 ½ to 5 years in state prison)-150 days minimum mandatory.

Note: Defendant may serve all or part of the 150-day minimum sentence in a correctional facility specifically designated for incarceration of drinking drivers, to the extent these resources are available.

License Action:

8 year suspension

(2 years min. mandatory)-work or education hardship license will be considered after 2 years; general hardship license after 4 years

4^th Offense

Fine: $ 1,500-$ 25,000

Imprisonment:

2-2 ½ years (or 2 ½ to 5 years in state prison)-1 year minimum mandatory Note: Defendant may serve all or part of the 12-month minimum sentence in a correctional facility specifically designated for incarceration of drinking drivers, to the extent these resources are available.

License Action:

10 year revocation (5 years minimum mandatory)-work or education hardship license considered after 5 years; general hardship license after 8 years

5^th or Subseq. Offense

Fine: $ 2,000-$ 25,000

Imprisonment:

2 ½ years (or 2 ½ to 5 years in state prison)-2 years minimum mandatory

Note: Defendant may serve all or part of the 24-month minimum sentence in a correctional facility specifically designated for incarceration of drinking drivers, to the extent these resources are available.

License Action:

Lifetime Revocation

No consideration of hardship license.

Notes: All penalties are mandatory.

Following a 2^nd or subsequent conviction, the offender must satisfactorily complete an approved treatment program before reinstatement of license can occur. The treatment program must consist of intensive treatment and a period of individual continuing aftercare supervision and monitoring. Program costs must be paid entirely by the participant.

After receiving notice of the requirement for participation, the person has 30 days to petition for a waiver of the requirement based on the grounds that (1) he is currently participating in a substantial treatment program or has completed one subsequent to his most recent arrest, either as a result of a court order or voluntarily and (2) he does not, based on the opinion of a licensed physician following a personal examination, have a current addiction problem which affects his ability to drive or poses a significant risk of having such a problem in the foreseeable future.

Notes: For 2^nd and subsequent offenders, work release is available during the term of imprisonment. Temporary release is also possible to attend a relative's funeral, visit a critically ill relative, receive medical or psychiatric services not available at the institution, or participate in an aftercare program to support recovery after completing an education, treatment or rehabilitation program.

3^rd and subsequent offenses are considered felonies.

Offender requesting work/education hardship or general hardship license must show that the causes of past or present violations have been dealt with or brought under control.

"LOOKBACK" PERIOD FOR DETERMINING PRIOR OFFENSES

10 Years

10 Years

SPECIAL CONDITIONS APPLICABLE TO CERTAIN OFFENDERS

Pretrial Alcohol Education Program (CGS § 54-56g)

Probation as Alternate Disposition (Ch. 90 § 24D)

This is a pre-trial diversion program open to certain people charged with driving under the influence of alcohol or drugs. An applicant must make certain statements under oath in open court including that (1) he has not had the program invoked on his behalf within the preceding 10 years, (2) if under 21 and charged under the . 02% BAC standard, he has never previously had the program invoked on his behalf for any DWI charge, and (3) he has not been convicted of either of the felonies of causing someone's death or serious physical injury while operating a motor vehicle while under the influence of alcohol or drugs.

Upon application for participation, the person must pay the court an application fee of $ 50 and a nonrefundable evaluation fee of $ 100. The court must order the file sealed from the public.

After considering the prosecutor's recommendation, the court may grant the application. If it does, it must refer the person to the Bail Commission for assessment and confirmation of the applicant's eligibility and to the Department of Mental Health and Addiction Services (DMHAS) for evaluation. The Bail Commission may rely on the person's sworn statement in open court with respect to relevant prior convictions in other states.

When eligibility is confirmed and the evaluation report is received, the Bail Commission must refer the person to DMHAS for placement in an appropriate alcohol intervention program. The person must agree, among other things, to complete either 10 or 15 counseling sessions in the program, depending on the evaluation report and court order. If the court orders it, the person must participate in at least one victim impact panel.

When the court grants the participation application, the applicant must pay the court a nonrefundable fee of $ 325 for the 10-session program or $ 500 for the 15-session program.

If (1) the Bail Commission informs the court that the person is ineligible for participation in the program or (2) the program provider informs the court that he did not successfully complete the assigned program or is no longer amenable to treatment, the court must unseal the court file, enter a not guilty plea for him, and immediately place the case on the trial list.

If the person satisfactorily completes the assigned program, he may apply to the court for dismissal of the charges against him. The court must dismiss the charges if it finds satisfactory completion of the program. If no dismissal of charges is applied for, the court may dismiss them on its own.

The Bail Commission must retain the record of the person's participation for seven years and must send the Department of Motor Vehicles the record as well. The latter department must also maintain the record for seven years as part of the driving history.

An applicant who is unable to pay the required fees can file an affidavit of indigency or inability to pay with the court and the court may grant relief if the Bail Commission confirms the indigency.

Any person "convicted of or charged with" driving under the influence of alcohol, if he consents, can be placed on probation by the court for up to 2 years. As a condition of probation, he must be assigned to an approved driver alcohol education program, and, if the court believes it necessary, to an alcohol treatment and rehabilitation program as well.

The court must suspend his driver's license for 45 to 90 days (but for 210 days if he was under age 21 at the time the offense was committed). The license must be retained in the court's probation office for the duration of the suspension and the court must immediately report the suspension to the motor vehicle registrar and the municipality in which the defendant lives.

An order of probation is in addition to any penalties that are imposed under the criminal drunk driving law and in addition to any requirements imposed as a condition for any suspension of sentence.

Someone is ineligible for this probation alternative (1) if the events that gave rise to the current charge caused someone else's death or serious physical injury or (2) he was convicted or assigned to an education, treatment or rehabilitation program for a single like offense within the previous 6 years. Probation may be granted to if a prior conviction or program assignment occurred for a like offense more than 6 years but less than 10 years prior to the current charge, based on a written finding of fact adequate treatment is available for the person, he would benefit from the treatment, and the public safety would not be endangered. In this instance, the court must suspend the license for up to 2 years (a hardship license for educational or employment purposes after 6 months if requested).

Anyone with two or more prior convictions or program assignments within the prior 10 years is ineligible for consideration again.

Unless otherwise prohibited, a defendant convicted at trial on the merits is presumed to be an appropriate candidate for these programs unless the judge deems him unsuitable and makes written findings to this effect.

If someone complies with his term of probation (including proper participation in any required programs), the court may enter a dismissal of charges.

Someone cannot be denied participation in required programs based on inability to pay the required fees. The defendant has 10 days from disposition to file an affidavit of indigency or inability to pay with the court. This must be confirmed by the probation officer. The court may require partial or installment payments or may waive the entire fee.

SPECIAL REQUIREMENTS FOR DRIVERS UNDER AGE 21

Illegal BAC-. 02% or more

All provisions and penalties for both administrative and criminal charge disposition apply in the same manner as for older drivers.

Pretrial Alcohol Education Program available for first offender provided the person has never previously participated in it.

Illegal BAC-. 02% or more

For drivers under age 21, a BAC test result of . 02% to . 05% does not result in a criminal DWI charge. A result of . 06% or higher may result in a DWI charge.

Two levels of penalties apply depending on whether the offender is under age 21 or age 18.

UNDER AGE 21

Test Refusals

License Suspensions Applicable Before Disposition of any Charges

· 180 days

· 180 days additional to the above but can be waived upon entry into youth alcohol program (completion is not required but suspension can then be reinstituted)

Suspensions After Disposition of any Criminal DWI Charge

· 210 days to run after the suspensions noted above if charge is proven

· If found not guilty or charge is dismissed, the first 180-day suspension noted above can be cleared upon order from the court.

· The second 180-day suspension must be served unless it is waived for entry in the youth alcohol program on offender's own accord.

BAC Test Failures

If No DWI Charge Results and There are No Prior Offenses

· 180 days that may be waived upon entry in youth alcohol program

If DWI Charge is Made

· 90 day suspension or until case ends in court, whichever is shorter (same as over age 21)

· 180 days additional that may be waived upon entry in youth alcohol program

· 210 days additional if convicted of charge or ordered by court to enter driver alcohol education program

UNDER AGE 18

Test Refusals

· 180 days (becomes 1 year if there are two prior convictions)

· 1 year additional that may be reduced to 180 days with completion of youth alcohol program

· an additional 210 days is imposed if there is a conviction on a DWI charge

BAC Test Failures

· 1 year suspension reduced to 180 days with completion of youth alcohol program

· an additional 90 days if charged with DWI

· an additional 210 days if convicted of charge or ordered by court to enter driver alcohol education program

Note: Drivers under age 18 are subject to the 1-year suspension regardless of any subsequent outcome in court, even an acquittal. However, entry in the youth alcohol program can reduce the suspension to 180 days.

LAWS RELATING TO CAUSING DEATH OR SERIOUS INJURY WHILE DWI

Assault In The Second Degree With A Motor Vehicle (CGS § 53a-60d)

Causing serious physical injury to another while operating a motor vehicle while under the influence of alcohol or drugs, or both, as a consequence of the effect of the alcohol or drugs

Class D Felony: Up to $ 5,000, one to five years imprisonment, or both

Court must suspend the driver's license or nonresident operating privilege for one year

Serious Bodily Injury by Motor Vehicle While Under the Influence of Intoxicating Substances

(Ch. 90 § 24L)

1. Causing serious bodily injury to another while operating a motor vehicle under the influence of alcohol or certain drugs

Penalty: Up to $ 3,000, up to 2 ½ years imprisonment in a jail or house of correction, or both

2. Causing serious bodily injury to another while operating a motor vehicle under the influence of alcohol or certain drugs and operating recklessly or negligently

Penalty: Up to $ 5,000 and imprisonment either for 6 months to 2 ½ years in a jail or house of correction or 2 ½-10 years in state prison. A minimum mandatory term of 6 months must be served.

State licensing agency must revoke license for two years from the date of conviction.

Manslaughter In The Second Degree With A Motor Vehicle (CGS § 53a-56b)

Causing another's death while driving a vehicle under the influence of alcohol or drugs, or both, as a consequence of the effect of the alcohol or drugs

Class C Felony: Up to $ 10,000, one to 10 years imprisonment, or both.

Court must suspend the driver's license or nonresident driving privilege for one year

Homicide By Motor Vehicle

(Ch. 90 § 24G(b))

Causing another's death while either driving under the influence of alcohol or certain drugs or driving recklessly or negligently

Misdemeanor: $ 300-$ 3,000, 30 days to 2 ½ years imprisonment in jail or house of correction, or both

Homicide By Motor Vehicle While Under the Influence of an Intoxicating Substance

(Ch. 90 § 24G(a))

Causing another's death while both driving under the influence of alcohol or certain drugs and driving recklessly or negligently

Felony: Up to $ 5,000 and either imprisonment for 2 ½ to 15 years in state prison or 1 to 2 ½ years in a jail or house of correction

(1 year minimum mandatory)

Work release available and temporary release allowed for certain purposes

State licensing agency must revoke license for 10 years for 1^st offense and permanently for a subsequent offense.

PENALTIES FOR DRIVING WHILE LICENSE IS SUSPENDED OR REVOKED WHERE BASIS WAS A DWI OFFENSE

$ 500-$ 1,000 and imprisonment for up to 1 year. In the absence of mitigating circumstances, a mandatory minimum of 30 days must be served. Court must state presence or absence of mitigating circumstances in writing.

Note: This penalty also applies when the basis for the suspension was a conviction for 2^nd degree vehicular assault, 2^nd degree vehicular manslaughter, or an administrative per se BAC violation

$ 1,000-$ 10,000 and imprisonment in house of correction for 60 days to 2 ½ years. A minimum of 60 days must be served however temporary release for participation in a work release is available as well as for certain other purposes (attending funeral, medical treatment not available at the institution, or visitation of a critically ill relative).

License suspension or revocation must be continued for an additional year.