Late Wednesday night the Massachusetts Senate with Sen. Stanley Rosenberg presiding unanimously voted to close a “loophole” in state law meant to enhance penalties for repeat drunk drivers that was exposed last week by the Supreme Judicial Court when it overturned the license suspension of a two-time offender.

Since then, as first predicted here, the Registries of Motor Vehicles have been inundated with Souza Hearings for reinstatement of suspended licenses.  Senate Minority Leader Bruce Tarr and Sen. Katherine Clark backed the budget amendment, which Tarr said had been “painstakingly” reviewed and edited so as to apply only to repeat drunk drivers.

 Tarr's amendment, seeks to address the SJC ruling that “continuance without a finding” resolutions in cases against certain defendants accused of operating under the influence are not considered convictions under Melanie’s Law, because the language did not include "or alcohol treatment program" and therefore would not trigger increased license revocation penalties for repeat drunk drivers intended under the law.

The amendment passed 37-0 in the final vote of the night.  Rep. Eugene O’Flaherty has said he would pursue similar action in the House to correct Melanie’s Law. The window is quickly closing on this loophole.  If you have a conviction after a CWOF and want you license reinstated, you must apply to the Registry of Motor Vehicles immediately before the House passes a similar measure and the Governor signs the bill.  For more information or representation before the RMV contact the Law Office of Isaac J. Mass.

Today, in Souza v. Registrar of Motor Vehicles, SJC-11123 (2012),Massachusetts Supreme Judicial Court ruled that a Continued Without Finding (CWOF) dismissed after probation does not count as a conviction for the purpose of driver’s license suspension for refusal to take breathalyzer.

Pursuant to G. L. c. 90, § 24 (1) (f) (1) (§ 24 [1] [f] [1]), the Registrar of Motor Vehicles is required to suspend an arrested driver’s license for three years for refusal to submit to a breathalyzer test if the driver has been previously “convicted” of an OUI offense. If the driver has not been previously convicted, the license suspension period is 180 days.

If you have had a second offense OUI conviction but your first offense was continued without a finding, you may be able to get your license back now or at least shorten your suspension period to 180 day.  You may also be able to shorten your suspension period if you have had more than one prior offense.

He Court held held “[i]f the Legislature, in enacting Melanie’s Law, had wanted to include an admission to sufficient facts in the definition of “convicted,” it could have done so explicitly”

The court “recognized that an admission to sufficient facts and an associated continuance without a finding constitute ‘a procedure which often serves the best interests of both the Commonwealth and the defendant. The benefit to a defendant is obvious: he may be able to avoid a trial and ‘earn’ a dismissal of the indictment or complaint, thereby avoiding the consequences of having a criminal conviction on his record.’”  One consequence of the conviction being the longer suspension of the license.

Undoubtedly, this decision will raise the ire of many people who felt the Melanie’s Law was designed to combat the surge of repeat offenders.  They will surely push the legislature to amend Melanie’s Law right away to close this loophole.  If you have had your license suspended by the Registry of Motor Vehicles after any criminal case, you need to have your case reviewed by an attorney right away to see if your suspension can be removed or shortened in duration, before the legislature takes action.  For a evaluation of your case, contact the Law Office of Isaac J. Mass.

Police officers heavily depend on so-called field sobriety tests when they suspect a driver of being intoxicated.  The first thing you should know is that you have a constitutional right enshrined in the 5th amendment of the US Constitution to refuse the field sobriety test.  Furthermore, your failure to take the test may not be used against you at trial.  Additionally, unlike a refusal to take a breathalyzer, there are not statutory civil penalties for failing to take a field sobriety test, i.e. you will not lose your license for the refusal. 

The appeal of field sobriety tests for law enforcement is clear: Drunk driving is dangerous and law enforcement agencies need easy-to-use, scientifically and legally valid ways of identifying drunkenness. The field sobriety tests that are most commonly used in Massachusetts, however, aren't as reliable as they should be, and are often administered improperly. This means that completely innocent drivers who haven't even had one drink can sometimes be arrested for driving under the influence of alcohol.

The National Highway Traffic Safety Administration (NHTSA) recommends three specific tests as the most reliable: the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg-stand. The NHTSA says that police officers who use all three tests on a suspected drunk driver have a high chance of making the right call as to whether or not the driver is actually drunk. In what the NHTSA considers the most accurate, the horizontal gaze nystagmus test a police officer asks a driver to follow a small flashlight side to side with his or her eyes. If the driver is drunk, his or her eyeballs shake as they look to the side. The walk-and-turn test is similar to walking a balance beam back and forth on an imaginary straight line. And the one-leg stand involves perhaps the greatest physical challenge: drivers are must stand still with their arms at their sides, raise one leg six inches off the ground while keeping it straight and pointing at their toes, looking at their raised toes, and count forward from 1,001. Swaying, raising arms for balance, hopping, putting the foot down, or starting to count before the police officer instructs are all be viewed as signs of drunkenness.

The scientific basis of field sobriety tests lies in a 35-year-old study of how well field sobriety tests could identify blood alcohol content. That study was conducted with only 238 subjects, mostly men 22-29 years old, and no control group. The Washington Post reported, "hundreds of thousands of drivers have been arrested -- no doubt many deservedly so -- on the basis of a 30-year-old study that, critics argue, has never been published in a peer-reviewed, scientific journal, never tested on a large scale with a control group and, perhaps more astonishing, has nothing to do with actual impairment from alcohol."

Besides the tests' scientific faultiness, they can also falsely identify as drunk people who just have medical issues. Balance disorders affect 40% of Americans at some point in their lives, and dizziness and vertigo are the third leading cause for visits to doctors. The older you get, and the heavier you get, the worse your balance. For an aging population with a growing number of overweight and obese people, the one-leg stand test sounds like a pretty ineffective gauge of whether someone is drunk.  The CDC reports that by 2030 42% of the US population will be obese.

If you have been arrested or charged with Operating Under the Influence you need a criminal attorney who knows, how to point out the scientific problems with both the field sobriety test, the breathalyzer, and the administration of those tests in your case.  If you would like a free consultation on your case, contact the Law Office of Isaac J. Mass.  Attorney Mass’ Greenfield office is located the heart of Franklin County, a block from the Greenfield district court. Attorney Mass represents clients with criminal and civil motor vehicle offenses throughout Franklin, Hampshire, Hampden and Berkshire Counties as well as across the Commonwealth of Massachusetts.  Attorney Mass is a featured speaker at driving schools in western Massachusetts.