Topic:
DRUNK DRIVING; LEGISLATION;
Location:
DRUNK DRIVING;
Scope:
Other States laws/regulations;

OLR Research Report


The Connecticut General Assembly

OFFICE OF LEGISLATIVE RESEARCH




July 14, 1994 94-R-0404

TO:

FROM: James J. Fazzalaro, Principal Analyst

RE: Massachusetts Drunk Driving Law

You asked for a copy of the new drunk driving law recently enacted in Massachusetts and for a general summary of its provisions.

SUMMARY

The most significant changes made by the new Massachusetts drunk driving law are that it:

1. lowers the presumptive level for intoxication with respect to driving a motor vehicle from 0.10% blood-alcohol by weight to 0.08%;

2. establishes a 0.02% intoxication level for drivers under 21 years;

3. establishes “per se” license suspensions (administrative suspensions that occur prior to adjudication of any charges) for drivers who submit to breath tests that show results at or above the statutory levels for intoxication;

4. generally increases fines and jail terms for drunk driving convictions, including the length of minimum mandatory jail terms;

5. increases the “look-back” period for determining if prior offenses have occurred from a six-year period to a 10-year period;

6. increases the license suspension resulting from a third drunk driving offense from five to eight years and establishes a lifetime revocation for a fifth offense within a 10-year period;

7. allows someone to petition for a limited license for certain purposes sooner during the suspension period than previously allowed (including for a first offense which was previously prohibited), but prohibits any hardship license following a fifth conviction (which was previously allowed);

8. increases from 120 days to 180 days the automatic suspension for someone under 21 who refuses to take a breath test when requested by a police officer and generally increases suspensions for drivers of all ages for second or subsequent refusals;

9. creates a statutory presumption that someone who is not otherwise prohibited by statute from obtaining probation and a referral to an approved education or treatment program must be considered a suitable candidate for such an alternative disposition and allows probation and referral for a second offense, which was previously prohibited;

10. increases from 180 to 210 days the license suspension for someone under 21 who receives probation and referral as an alternative disposition of charges; and

11. allows someone incarcerated for drunk driving to be given temporary, supervised release in order to attend an aftercare program designed to support his recovery.

The new law also requires the public safety secretary to conduct an analysis of how the new law affects correctional resources and to participate with other state agencies in studying the effects of the new law and reporting them to the legislature, and makes other miscellaneous changes.

BLOOD-ALCOHOL LEVEL

The new law lowers the presumptive intoxication level for drivers from 0.10% blood-alcohol concentration to 0.08%. Under existing Massachusetts law, if a chemical test reveals that a person has a blood-alcohol level of no more than 0.05%, there must be a permissible inference made that the person was not under the influence. If the level is between 0.05% and 0.10% (but now 0.08% under the new law), there can be no permissible inference. If the blood-alcohol level is 0.10% or more (0.08% under the new law), there must be a permissible inference that the person was under the influence.

The new law also establishes a 0.02% blood-alcohol intoxication level for anyone under age 21. Prior Massachusetts law had no separate limit for young drivers.

PENALTIES FOR OPERATING UNDER THE INFLUENCE OF ALCOHOL OR CERTAIN DRUGS

Criminal Penalties

The new law increases fines and jail terms for first and subsequent convictions for driving under the influence. It also increases the period during which an offense would be considered a repeat offense from six years to 10 years. Table 1 compares the penalties under the prior law to the increased penalties under the new law.

Table 1

Penalties for Driving Under the Influence

Prior Law New Law

1st Offense up to 2 years or up to 2 1/2 years

$100-1,000 fine or $500-5,000 fine

or both or both

2nd Offense 14 days-2 years and 60 days-2 1/2 yrs.

$300-1,000 fine and $600-10,000 fine

Min. mandatory of Min. mandatory of

14 days must be 30 days must be

served served

3rd Offense 90 days-2 years and 180 days-2 1/2 yrs.

$500-1,000 fine and $1,000-15,000

Min. mandatory of OR

90 days must be 2 1/2 yrs.-5 yrs. in

served State Prison and

$1,000-15,000 fine

Min. mandatory of

150 days must be

served

Table 1 (Continued)

Prior Law New Law

4th Offense 6 months-2 years and 2 yrs. -2 1/2 yrs.

$500-1,000 fine $1,500-25,000 fine

Min. mandatory of OR

6 months must be 2 1/2 yrs. -5 yrs.

served in State Prison and

$1,500-25,000 fine

Min. mandatory of

12 months must be

served

5th Offense Same as above 2 1/2 years and

$2,000-50,000 fine

OR

2 1/2 yrs.- 5 yrs.

in State Prison and

$2,000-50,000 fine

Min. mandatory of

24 months must be

served

As Table 1 shows, there are several differences between the old and new penalties. These include, generally higher minimum fines and significantly higher maximum fines, significantly higher mandatory minimum sentences and maximum sentences, and, for third and subsequent offenses, the option for longer terms of imprisonment to be served in the state prison instead of the house of corrections.

Massachusetts law already allowed an offender serving a term of imprisonment to be granted a temporary release in the custody of a corrections officer to attend a relative's funeral, visit a critically ill relative, obtain emergency medical or psychiatric services not available at the correctional institution, or engage in employment in a work release program. The new law adds another reason for temporary, supervised release--for purposes of an aftercare program designed to support the recovery of an offender who has completed a substance abuse education, treatment, or rehabilitation program operated by the Department of Correction.

The new law also stipulates that all or part of any mandatory minimum sentence may be served in a correctional facility designated by the department for incarcerating and rehabilitating drunk drivers, to the extent that such facilities are available.

For purposes of determining if an offense is a repeat offense within the specified time period, Massachusetts law considers both previous convictions and assignment to an alcohol or substance abuse education, treatment, or rehabilitation program. The new law retains this method of counting offenses.

License Suspension

The previous Massachusetts law required a one-year license suspension for a first drunk driving conviction (no prior conviction or referral to an education or rehabilitation program in the previous six years). The required suspensions increased with subsequent violations as follows: second offense (one prior conviction or referral in six years)-- suspension for two years, but the person could apply for a limited, “hardship” license after one year; third offense (two prior convictions or referrals in prior six years)--suspension for five years, but the possibility of a hardship license after two years; fourth or subsequent offense (three prior convictions or referrals in six years)--suspension for 10 years, but the possibility of a hardship license after five years. No hardship license could be granted for a first offense.

The new law changes the suspension requirements in several ways. It increases the “look-back” period for determining prior convictions or referrals to education or rehabilitation programs to 10 years from six years. It maintains a one-year suspension for a first conviction, but allows for a limited license for employment or educational purposes after three months and a less-limited “hardship” license after six months. The license for educational or employment purposes is valid for no more than an identical 12 hour period every day and must be based upon hardship and a showing that the person has dealt with or brought under control the causes of past and present violations.

The new law maintains the two-year suspension for a second offense, but allows for the hour-limited license after six months and for the limited, hardship license after one year. In order to get the 12 hour-limited license after six months, the person must have successfully completed a residential alcohol treatment program provided or sanctioned by the state Division on Alcoholism, or an education, treatment, or rehabilitation required by law as a condition of probation.

The new law increases the suspension for a third conviction from five years to eight with a 12-hour per day employment or education license possible after two years based upon a showing that the causes of past and present violations have been dealt with or controlled. A limited hardship license is possible after four years. The suspension for a fourth conviction remains at 10 years with the possibility of a 12-hour per day license after five years and a less limited hardship license after eight years. For a fifth conviction within 10 years, the new law requires a lifetime revocation of license with no possibility for a either a hardship or an educational or employment license. Under the prior law, fifth and subsequent convictions resulted in 10-year suspensions.

PROBATION, REFERRAL TO TREATMENT AND REHABILITATION PROGRAMS, AND LICENSE SUSPENSIONS

A person convicted of or charged with drunk driving, with his consent, can be placed on probation for up to two years and, as a condition of probation, must be placed in a driver alcohol education program and, if the court finds it necessary, in an alcohol treatment or rehabilitation program in addition to or instead of the education program. The license of someone whose case is disposed of in this manner must be suspended for 45 to 90 days, unless he is under 21, in which case the suspension is for 180 days. The new law increases the mandatory suspension for someone under 21 to 210 days.

ADMINISTRATIVE LICENSE SUSPENSION FOR TEST REFUSAL

Massachusetts, like Connecticut, has an implied consent law which stipulates that a driver, by virtue of obtaining a driver's license, has given an implied consent to be tested for blood-alcohol content under certain conditions that establish probable cause in the mind of a police officer that the driver may have been operating under the influence of alcohol or drugs. A person can refuse to submit to a chemical test, but this refusal results in an automatic administrative license suspension for a specified period. (In Connecticut, the chemical test can be of the person's blood, breath, or urine. In Massachusetts, only blood or breath tests are authorized in the law.)

Under the prior Massachusetts law, any refusal of a breath test resulted in license suspension of at least 120 days and a maximum suspension of up to one year. The new law maintains the 120 day suspension for a first refusal incident, but increases the suspension period for subsequent refusals. Under the new law, if a person is under 21 and refuses to be tested, or if a person has once previously refused to be tested within a 10-year period, the automatic license suspension is 180 days. If there have been two or more previous refusals in the prior 10 years, the license suspension is for one year.

“PER SE” LICENSE SUSPENSIONS

Previously under Massachusetts law, if a person took a test for blood-alcohol level and it was 0.10% or more at the time of the alleged offense, the statutory presumption was that he was operating under the influence and the test result constituted prima facie evidence for the court in the adjudication of the drunk driving charge. But there was no statutory authority for an administrative license suspension prior to the adjudication of the charge based on the test reading as there is in Connecticut (i.e, a “per se” suspension).

The new Massachusetts law establishes per se suspensions for test readings of 0.08% or more for adults and 0.02% or more for drivers under 21.

If a police officer administers the test and these readings result he must: (1) immediately take custody of the license on behalf of the state, (2) provide the person with a written notice of “intent to suspend” on prescribed forms, (3) issue the person a temporary driving permit (unless the person's driving privileges were already under suspension or revocation, he has an invalid license, he was not entitled to driving privileges for any other reason, or he holds an out-of-state license), and (4) immediately report these actions to the motor vehicle registrar. The officer's report must be sworn, set forth his grounds for believing that the person was under the influence of alcohol, that the person's blood alcohol levels met the statutory per se standards, that the test was administered by a trained and certified person and performed according to required standards, that the equipment used was regularly serviced and maintained, and that the test administrator had every reason to believe that it was functioning properly during the test. The report must also be endorsed by the police chief or someone authorized by him.

The law requires this per se suspension to become effective 15 days after the person has received the notice of intent to suspend from the police officer. The person's license must be suspended until the charge against him has been disposed of, or 90 days, whichever is less. The temporary driving permit the police officer gives to the person after confiscating his license becomes effective after 12 hours and is valid for 15 days. Within 10 days of his suspension, the person can request a court hearing to contest the suspension. But the hearing is limited to a single issue--whether a blood test administered within a reasonable period of time after the police-administered breath test showed a blood-alcohol level that violated the applicable statutory limit. If the court finds that the blood test result does not verify these limits, it must restore the person's license and direct the prosecuting officer to notify the criminal history systems board and the motor vehicle registrar of the restoration.

The second test upon which an appeal may be based was already authorized under Massachusetts law. A defendant must be afforded a reasonable opportunity, at his own request and expense, to have another blood or breath test administered by a person or physician he chooses. Blood may only be withdrawn for this test by a physician, registered nurse, or a certified medical technician. The new law merely makes this second test part of the administrative suspension process, just as it can be introduced as part of the actual adjudication of the drunk driving charge.

MISCELLANEOUS PROVISIONS

Alternative Disposition

The new law creates two new conditions for alternative dispositions of drunk driving cases resulting in convictions. For someone convicted of drunk driving after a trial on the merits, it creates a presumption that the person is a suitable candidate for educational or treatment programs unless he is otherwise disqualified from participating in them by the law. If a judge deems such a person to be unsuitable for such programs, he must state his findings in writing. Prior Massachusetts law had no such presumption of suitability.

A second provision of the new law allows someone who has committed a second offense (a prior conviction or program referral within 10 years) to be put on probation and receive alcohol education or treatment as an alternative disposition provided the previous offense occurred more than six, but less than 10, years earlier. The previous law did not allow for this alternative disposition for a second offense.

Inquiries of Defendant

Massachusetts law requires the court to inquire of a defendant before he is sentenced where he was served alcohol. Previously, the law required this information to be sent to the attorney general, the district attorney for the district in which the establishment which sold him the alcohol is located, and the establishment. The new law specifies that the court clerk's office is responsible for transmitting the information and that it also be sent to the state alcohol beverage control commission.

Impact Report

The public safety secretary must prepare a correctional resources impact study assessing the new law's effect on current correctional resources, certifying the extent of the effects, and identifying plans for responding to the effect with current correctional resources available to him in the current and the next four fiscal years. The secretary must certify whether other inmates will be transferred from jail or prison to absorb the law's impact, and not rely upon any capital facilities expansion plans contained in pending legislation when making his calculations. The report must be submitted by December 31, 1994 to the joint committee on criminal justice, the joint committee on public safety, and the house and senate committees on ways and means.

Effectiveness Analysis

The Chief Justice for Administration and Management of the Trial Court, the Massachusetts Sentencing Commission, and the public safety secretary must study and evaluate the effectiveness of the new law and file a report with the House Clerk somewhere between 12 and 24 months after the act's effective date. The clerk must forward the report to the ways and means committees.

The report must include: (1) whether the act shows quantifiable improvement in motor vehicle accidents whose proximate cause is drivers being statutorily under the influence of alcohol; (2) whether the reduction from 0.10% to 0.08% for presumptive intoxication creates any statistical significance concerning injury or property damage accidents in Massachusetts; (3) whether sanctions imposed on minors for violations of the 0.02% alcohol level measurably reduces underage drinking and driving in Massachusetts; (4) the effectiveness and costs arising from imposition of minimum mandatory sentencing; (5) the effectiveness and cost of alcohol or drug education, treatment, or rehabilitation programs to reduce recividism of driving under the influence; and (6) any additional costs that the lower blood-alcohol standard has on the law enforcement community with regard to increased use of roadblocks and on judicial costs engendered by prosecuting individuals arrested under the lower standards.

JJF:lav