In modern society, where travel is easy, the interstate differences in drunk-driving laws may create sticky situations. Melanie's Law, our Massachusetts OUI statute, provides for enhanced penalties as well as other "remedial" measures, such as mandatory installation of ignition interlock devices, for repeat offenders. In our increasingly interstate system, application of certain repeat offender provisions of Melanie's Law becomes problematic because different states take different approaches to offender status. For example, some states have a policy of expunging or sealing first offense drunk- driving convictions after the accused successfully completes any probationary term and alcohol awareness program. If an individual with an expunged or sealed OUI conviction is later charged with drunk driving again, the charge in some states would be for an OUI first offense. Massachusetts, on the other hand, would treat that person as a second-time offender.
A major problem created by this interstate inconsistency relates to finality of pleas. All states are interested in the finality of pleas and other dispositions. When Massachusetts converts out-of-state first offenses into Massachusetts second or subsequent offenses, the out-of-state pleas may be challenged for lack of voluntariness or intelligence. Before any accused can enter a guilty plea, he or she must have notice of the nature of the charge. When an OUI is charged as a first offense in another state and the accused pleads, the plea may not be made intelligently when he or she has no notice that it will be a Massachusetts second offense. Massachusetts should apply its laws in a way that is mindful of other states' interests in finality of pleas instead of creating potential grounds for vacating foreign pleas.
The question becomes, "Why should Massachusetts defer to another state in terms of an OUI offender's status and the nature of an OUI charge?" One answer involves comity, respect for the sovereignty of other states. Another involves certainty, predictability, and uniformity. It is more than important for people to have some degree of certainty as to their offender status. Treating out-of-state first-time offenders as Massachusetts second-time offenders undermines that certainty. One's offender status becomes fluid, changing as state lines are crossed. While Massachusetts has valid public policy interests, the intended deterrent effect of enhanced penalties (and so-called "remedial" measures) for repeat offenders is substantially undercut when a person does not even know that he is or could be charged as a repeat offender.
It is true that under traditional approaches to conflict of laws, it is essentially the rule that State A will not enforce the penal laws of State B. This is a fairly- accepted proposition because the wrong is to the particular state. However, not all provisions of Melanie's Law affecting repeat offenders are considered "penal." As noted above, the requirement that second and subsequent offenders install an interlock ignition device on cars they own or operate has been deemed "remedial" as opposed to punitive. Also, under more modern approaches in conflict of laws, courts engage in "interest analysis" or "comparative impairment" analysis instead of having clear-cut choice of law rules. "Interest analysis" involves considering which state is more interested in seeing its rule applied. "Comparative impairment" is essentially the flip side to that coin, where courts consider which state would be more aggrieved if its rule were not applied. In light of the conflicting interests noted above, and from the perspective of a Massachusetts OUI/DUI/DWI lawyer, it would be interesting to see how a Massachusetts court would conduct an analysis on this issue.