Articles Posted in Melanie’s Law

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Our Supreme Judicial Court has recognized that the legislature could not have intended to make it a crime to drive after unknowingly being “slipped” drugs or alcohol. Where intoxication is an element of a crime, as it is in operating under the influence (OUI / DUI) cases, the government has the burden of proving voluntary intoxication, even where the degree of the intoxication isn’t enough to create a basis for inferring lack of criminal responsibility. As such, Massachusetts defendants in operating under the influence cases can, but rarely do, raise “involuntary intoxication” as a defense. One example of involuntary intoxication would be a situation in which a defendant was compelled against his or her will to ingest alcohol or drugs. Another example would be a situation in which a defendant took prescription medication as instructed but, nevertheless, ended up suffering intoxicating effects.

As a Massachusetts OUI defense attorney, I find the concept of involuntary intoxication interesting in the context of those who suffer from alcoholism. In other words, should alcoholism be a defense or an affirmative defense to drunk-driving charges because the disease renders alcohol consumption involuntary?

Steven S. Nemerson’s Cardozo Law Review article Alcoholism, Intoxication, and the Criminal Law raises several points worth considering. Nemerson asserts, and few would dispute, that alcoholism is a disease. The disease causes those afflicted to lose control when it comes to alcohol consumption. Because alcoholics suffer from an inability to abstain from drinking, drinking is not a voluntary action for those affected by the disease. Still, Nemerson concludes that protecting the safety of innocent persons, even from the morally blameless, is more important and desirable than protecting the rights of those who involuntarily commit crimes. He does, however, think that alcoholism should be an available affirmative defense.

Here in Massachusetts, the standard for lack of criminal responsibility due to a mental disease or defect is set forth in a case named Commonwealth v. McHoul. Our courts hold that neither alcoholism nor drug addiction count as a “disease of defect” which, alone, could trigger McHoul. However, the SJC has said that the government, in the context of OUI cases, has to prove both intoxication and that the intoxication was voluntary, regardless of whether there is a triggering basis for McHoul. This is because proof of intoxication is an express element in drunk-driving cases. Thus, even if alcoholism is not a “disease” for McHoul purposes, it could, presumably, still be something for a jury to consider in assessing whether the government has met its burden of proving that intoxication was voluntary. Such a defense strategy would, still, be very risky, since many might not consider an alcoholic’s consumption of alcohol “involuntary” within the usual sense of the word.

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August 8, 2011, when the stocks plunged dramatically, marked the most severe decline since the fall of 2008. Economists discussed the possibility of yet another recession, which would hurt even worse because of the nation’s weak starting point, CNNMoney reported on August 10, 2011. Readers may be asking what relevance this has to Massachusetts OUI/DUI/drunk driving cases, and the answer is in the following: While drunk drivers come from every walk of life, studies also show that, in addition to various other factors, drunk drivers are more likely to be unemployed (or working class). This post will touch upon the relationship between unemployment and problem drinking and the ramifications for Massachusetts operating under the influence cases.

Certain theories of alcoholism and problem drinking focus on stress levels and socio-environmental factors. Under such theories, drinking problems develop as mechanisms for coping with stressful circumstances, such as unemployment and financial strain. Researchers have had difficulty, however, in determining the causal relationship between unemployment and alcohol abuse. In other words, it seems to be unclear whether unemployment leads to alcohol abuse or whether alcohol abuse leads to unemployment. If the former is more accurate and unemployment creates an increase in problem drinking, then we would expect to see more Massachusetts OUI arrests and prosecutions if we are to be thrown into another financial crisis.

Massachusetts drunk-driving arrests have decreased in the past five years, the Boston Herald reported on July 20, 2011. However, that article indicated that last year there were 14,834 OUI arrests, down from 17,804 OUI arrests in 2008 and 15,850 in 2006. This is worth noting because 2008 was the height of the economic recession, and according to these statistics, it was also a high point in OUI arrests. Obviously, on the other hand, that there were more arrests does not necessarily mean that there was more drunk driving in 2008. For instance, it could mean that there were simply more police patrols for drunk driving.

As mentioned above, it is possible that unemployment may be a cause of “problem drinking.” This raises another important OUI issue. It is known that a large majority of repeat OUI offenders are “problem drinkers.” Here in Massachusetts, repeat OUI/DUI/DWI/drunk driving offenders are subject to mandatory minimum sentences, and judges are forced to take a broad-brush approach without consideration of the defendant’s situation or individual traits. Anyone facing a mandatory minimum sentence should be aware that the quality of one’s defense attorney will be critical.

While the link between financial crises and OUI arrests and prosecutions may be tenuous, it is always important to consider the effects of the current economic, social and political backdrop. This is largely because developments in all areas of the law, including OUI/DUI/DWI law, do not happen in a vacuum and because courts, police, prosecutors, and lawmakers all tend to take the temperature of the day.

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Just over a month after the high profile acquittal of Casey Anthony, Caylee Anthony’s grandparents and crowds of others memorialized what would have been the toddler’s birthday, CBS reported on August 10, 2011. The tribute to the child’s short life seems to have spurred renewed interest in “Caylee’s Law,” a proposed bill that would make a parents’ failure to report a child missing or dead within 24 hours or 1 hour, respectively, a felony. The widespread support for “Caylee’s Law” should prompt consideration of reactive legislation named after children who have suffered tragic deaths, such as Massachusetts’ own “Melanie’s Law,” which was passed in 2005 to enhance punishments for Massachusetts OUI/DUI/drunk driving offenders.

“Melanie’s Law” was named after Melanie Powell, a 13-year-old who, while walking to a beach in Marshfield, was killed by a drunk driver. The driver, who had a prior OUI conviction, was convicted of motor vehicle homicide and drunk driving. She was sentenced to 2 ½ years in state prison and two years of post-release probation. Melanie’s parents and grandfather then started a push for tougher drunk driving legislation. “Melanie’s Law,” which came in the wake of public anger , was the result.

Laws fueled by public outcry and named after deceased children tend to be counterproductive and poorly-reasoned. Too often, consideration of the policy behind such laws is lacking at best. These kinds of laws are frequently designed to appease an outraged public , and bad knee-jerk laws are passed in an emotional haze. Still, some legislators use these “tough” laws as a tool to garner support and win votes. Attaching the name of a child victim to proposed legislation is another powerful tool for legislators championing such laws. This tactic creates the perception that a vote against the law is a vote against the child, curbing opposition.

There are several examples of laws named after young victims, particularly in the area of sex crimes. The Jacob Wetterling Act, the Adam Walsh Act, and Dru’s Law are just a few of the many. While most would agree that prevention of sex crimes is an important goal, many have criticized these laws because they do not do much in terms of achieving that purpose. Perhaps the most common criticism is that blanket sex offender registries make it difficult to differentiate between dangerous convicted criminals and those convicted of sex crimes in relatively inoffensive circumstances, such as a teenager who had consensual sex with his barely underage teenager girlfriend. One can draw parallels between this type of indiscriminate grouping and the way in which Melanie’s Law strips the courts of discretion in certain cases and closes out consideration of the unique qualities of OUI defendants.

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In recent years, punishments for drunk-driving offenses have become ever more severe in Massachusetts and throughout the country. Laws that provide for tough drunk driving penalties, such as Melanie’s Law in Massachusetts, are very popular politically, perhaps because many unthinkingly take the view that severe sentences will reduce the number of deaths and injuries that are caused by drinking and driving. However, a much more thoughtful consideration of penal theory is necessary to answer the question, “How much punishment is appropriate?”
There are three main theories of criminal punishment: deterrence, retribution, and rehabilitation. This blog post addresses deterrence and retribution in terms of increasingly severe drunk driving penalties. While rehabilitation would perhaps be the most effective approach to drunk driving, particularly when offenders have problems with alcohol, current laws leave little opportunity for rehabilitation analysis, especially with respect to penalties for second and subsequent offenses.

Deterrence theory can be broken down into two parts: general deterrence and individual deterrence. The reasoning behind general deterrence is as follows: if people know that punishment will follow the commission of a given crime, then people will be less likely to commit that crime. In other words, general deterrence serves to provide self-interested persons with reasons to not commit crimes. Individual deterrence is the idea that once a person is punished for a crime, he or she will be less likely to offend again for fear of being punished again. With regard to general deterrence, increasing drunk driving penalties , standing alone, is of little value because it is known that the perceived risk of detection and arrest is of much more consequence than severity of punishment. Considering individual deterrence, the problem with simply imposing harsher penalties is that the majority of OUI/DUI-related fatalities and injuries are caused by problem drinkers struggling with alcohol addiction, and it is more than difficult to deter those with such problems. Moreover, this theory hinges on the concept of the rational thinker, but those who are truly drunk are presumably not thinking entirely rationally. Statistics do show that no matter how severe the potential punishments, drunk driving continues.

Retribution is currently the leading justification for criminal punishment, and it has been on the rise since the 1970s. The idea behind retributivism is essentially “an eye for an eye.” While there are different camps within retributivism (negative, positive, assaultive), this is a somewhat simple approach to punishment, with the basic premise being that society is justified in punishing criminal offenders because the offenders have earned it. In the context of strict drunk driving statutes, this theory does not work because there is no black and white. Anyone with a blood alcohol concentration of .08% or higher is treated as a drunk driver, and while that is convenient, not every person is the “average person” in terms of physiology. Drunk -driving laws leave room for punishing those who were not drunk, and sometimes, for punishing those who were not even really driving. Thus, a theory based entirely on moral culpability falls apart.

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State Senator Robert Hedlund, a Weymouth Republican, has filed a bill designed to strengthen Melanie’s Law by requiring ignition interlock devices for six months after a first drunk driving offense. In an effort to close “loopholes,” his bill would also prohibit bundling (punishing two or more concurrent drunk driving offenses as one).

The National Transportation Safety Board (NTSB) has rated Massachusetts, which has adopted 4 of its 11 federal drunk driving recommendations, as being among the worst in the country when it comes to tough drunk driving policy. Some of the NTSB’s recommendations include a zero BAC limit for repeat offenders, impromptu alcohol screening for offenders, and a prohibition on plea bargaining. Even Senator Hedlund admitted to the Boston Herald that “some of the criteria that the NTSB looked at, might venture into areas related to civil liberties.”

It is well known that, time and again, lawmakers are influenced by the emotional pull surrounding strict OUI/DUI/drunk driving laws, and as a result, our constitutional protections are watered down. As Representative Eugene O’Flaherty, a Chelsea Democrat and House chairman on the judiciary committee, said to the Boston Globe, “The challenge is always how do you make sure that public safety is being enhanced while at the same time making sure that case law and constitutional safeguards are also protected.”
Of course, experienced Massachusetts OUI/DUI/drunk driving attorneys are always quickly alerted to any possible intrusions into these constitutional safeguards. Perhaps that is why Senator Hedlund blames the group of legislators who also work as criminal defense lawyers for rejecting measures to expand Melanie’s Law, which is already one of the most restrictive drunk driving laws in the country, in previous sessions.

To read more, see:

http://www.bostonherald.com/news/regional/view.bg?articleid=1315715&srvc=rss

http://www.boston.com/news/local/massachusetts/articles/2010/11/17/us_says_mass_lags_on_measures_to_deter_repeat_drunken_driving/?page=2

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As a Massachusetts drunk-driving defense attorney, I’d like to remind my readers of their rights (or lack thereof) when it comes to sobriety checkpoints and roadblocks. A large range of purported “lesser intrusions,” like inspections and regulatory searches have been upheld by both the United States Supreme Court and lower courts, even when they are carried out without a warrant and without the traditional measure of probable cause. Among these types of searches are sobriety checkpoints and OUI/DUI roadblocks.

In many contexts, the courts have grappled with the question of exactly which types of departures from the long-established requirement of probable cause are constitutionally allowable. With regard to sobriety checkpoints, there is a significant departure: no individualized suspicion is required at all, but there must be some neutral standard to protect the subjected individuals against arbitrariness. Michigan v. Sitz is the case in which the Supreme Court upheld sobriety checkpoints. The majority reasoned that such checkpoints are “necessary,” while the dissent was focused on citizens’ freedoms. Here in Massachusetts, our courts have adopted the same view, even though our Declaration of Rights affords greater protection than the United States Constitution in several other instances.

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As illustrated in Sitz, different normative foundations bear heavily on the rules, and I see this continuously as a Massachusetts drunk driving criminal defense lawyer. Conflicting value positions are at the heart of all criminal laws, including DUI/OUI/drunk driving laws. The theme is the tension between security and liberty. While the government has an interest in protecting individuals from the dangers of drunk -driving, civil rights are of paramount importance, and that is why I do all that I can to protect my clients from such violations.

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A recent article in the Boston Globe got my attention as a Massachusetts OUI criminal defense attorney. Massachusetts legislators are reportedly considering several changes to Melanie’s Law, the 2005 law that was intended to toughen penalties for drunk drivers. Legislators have proposed several ways to toughen those penalties even further, including a proposal to add ignition interlock devices to the vehicles of people convicted of one intoxicated driving offense. Ignition interlock devices are essentially breathalyzer tests attached to the vehicle’s ignition, which require drivers to pass a breath test before the car will start. Currently they are required by Melanie’s Law when drivers have their licenses reinstated after two or more OUI convictions. The bill was introduced by state Sen. Robert Hedlund, R-Weymouth, who also suggested eliminating concurrent sentences and “bundling” of charges for repeat offenders.

Read article: Bill targets Melanie’s Law loophole

It’s not at all clear whether the bill will eventually pass; the Globe noted elsewhere that it won’t pass during this session. But as a Massachusetts drunk driving criminal defense lawyer, I hope lawmakers who do eventually consider it will think carefully about whether it’s a good idea to require breath tests for anyone convicted of drunk driving. Even drivers with clean records may feel uncomfortable about how invasive the devices are. But even if that’s not an issue for most people, there are also serious concerns about their safety and effectiveness. Conventional breathalyzers require drivers to retest every 20 minutes, which means retesting while driving. That requires drivers to either pull over or take the breath test while their eyes are supposed to be on the road. If the device decides the driver is drunk while the car is already moving, the car could come to a halt with little warning. If drivers don’t take the test quickly enough, the car will also stop in the middle of the road.

Perhaps more importantly, there is also controversy over whether ignition interlock devices do the job they’re intended to do: keep drunk drivers off the road. It’s illegal to take the breath test in someone else’s vehicle, but the technology can’t actually stop this. Nor can it stop people without the devices from simply lending the driver their vehicles (also a crime). And ignition interlock devices have many of the same problems facing police breathalyzers and alcohol-detecting ankle bracelets such as the one famously worn by Lindsay Lohan. These devices detect alcohol in the mouth rather than the bloodstream, including alcohol-containing products like mouthwash. In some cases, they have even been triggered by yeast-raised bread! There may also be problems with how sensitive they are. For example, would a legal and, for many people, harmless 0.02 BAC shut the car down, or would the device consistently detect BACs over the legal limit? As a Massachusetts intoxicated driving criminal defense attorney, I would prefer that lawmakers address these issues before mandating the devices.

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A young woman is charged with DUI in a crash that police say froze the car’s speedometer at 85 mph, in a 30-mph zone. According to an Oct. 21 article in the Winchester Star, police say 18-year-old Diamond Mason and her passenger, an unnamed 22-year-old woman, are lucky to be alive after they crashed into a stone wall and a tree. The police report said Mason and her passenger were returning from a party at around 12:22 a.m., traveling at very high speeds, when Mason failed to make a turn on Winchester’s Main Street. Instead, her car jumped the curb, crossed the sidewalk and hit a stone-capped cement wall in the front yard of a private home. The crash didn’t stop the car, but sent it 18 feet into another section of wall, knocking the wall out of the ground. The car then hit a tree before coming to a stop.

In addition to the damage to the wall and the lawn, the crash caused severe damage to the car, littering the yard with car parts and contents and splitting the front end in half. The crash also knocked out the engine block and transmission, which were on fire when police arrived. The airbags in the car had deployed and were splattered with blood. Both occupants were knocked out of the vehicle. The 22-year-old passenger appeared to have a broken or dislocated leg; Mason said later that she had a possibly broken ankle, a cut to her head and a knee injury. The passenger said she had been drinking at the party and had passed out in the car, but Mason denied having had more than a sip of alcohol. Nonetheless, she was charged with OUI causing serious bodily injury; driving to endanger; failing to stay within her lane and speeding.

Read article: Speedometer freezes at 85 mph after Winchester OUI crash

I am glad to read that both of these young women seem to be all right after this serious accident. It’s not clear from the article what evidence the police might have for the OUI charge against Mason. If there is no breath or blood test or other reliable evidence, a Massachusetts drunk driving defense attorney may be able to successfully defend the charge. But even if that’s not possible, I suspect, given Mason’s age and probable lack of prior offenses, that she would be a strong candidate for the alternative disposition/24D program for first-time DUI defendants. Instead of possible jail time and thousands in fines, participants are sentenced to a mandatory alcohol education program that they must pay for; up to two years of probation; $600-plus in fines and fees; and a license suspension of 210 days (45 to 90 days for drivers over 21). Defendants who get their cases continued without a finding will not have a criminal record but they will still have a court record showing that they “got a break” earlier in life. However, with help from a Massachusetts DUI defense attorney, they can avoid some of the inappropriately harsh consequences of conventional conviction.

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Cleveland Brown wide receiver Donte Stallworth just hit the mother load of of plea deals by getting a thirty day jail sentence after being charged with DUI Manslaughter. It was alleged that on March 14, 2009 Mario Reyes was running across the street to catch a bus when he was struck and killed by a car being driven by Stallworth. According to reports the sentence was nine years and eleven months shorter than the average sentence in Florida for the same crime. Apparently Stallworth’s cooperation with authorities after the accident and an undisclosed settlement agreement with the victim’s family factored heavily into this decision. Stallworth apologized to the victim’s family at his sentencing at which he also received a lifetime loss of license. After his release from custody Stallworth will be on house arrest for two years and he will be on probation for eight years. He was ordered to pay fines of ten thousand dollars and he will have to perform one thousand hours of community service.

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Donte Stallworth Gets Short Sentence In Plea Deal For OUI Manslaughter Charges

There are very few circumstances in which you would see a deal like this in Massachusetts. OUI Manslaughter is a relatively new crime in Massachusetts enacted a few years ago under Melanie’s Law. OUI Manslaughter in Massachusetts carries a minimum mandatory five year state prison sentence. Massachusetts Laws do provide for work release programs for people convicted under this statute however this cannot happen without the recommendation of the prison superintendent and under the supervision of an officer of the prison in which the defendant is incarcerated. See Massachusetts General Laws Chapter 265 Section 13 1/2. Motor Vehicle Homicide OUI violations can in some circumstances provide for a lighter sentence however rarely if ever will the sentence of incarceration be thirty days. The only time when this might happen is when the district attorney’s case in tenuous. For example, in this case if it could reasonably be argued that Reyes actions were the actual cause of the accident and the prosecution’s case was weakened due to that fact you might see a sentence imposed that undercuts the average for these cases. Again, thirty days is not likely. There is no doubt that Stallworth’s lawyer did a great job for him.

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Last week police in West Tisbury, Massachusetts responded to a motor vehicle crash scene after receiving information that there was an accident with serious injuries. They arrived to find Jena Pothier pinned to the front passenger seat wearing a seatbelt. The suspected driver, Kelly McCarron was found lying in the road having been ejected from the car. Police stated that speed and alcohol were factors in the crash. Witnesses to the crash said that McCarron was operating at a high rate of speed and attempting to pass a car in front of her despite a car in the oncoming lane. Pothier had just completed her first year of college. McCarron had just graduated from Martha’s Vineyard High School. McCarron has been charged with several motor vehicle infractions and crimes, the most serious being DUI, Negligent Operation of a Motor Vehicle, Motor Vehicle Homicide OUI and OUI with Serious Bodily Injury. Police have not ruled other charges out of the realm of possibility.

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Motor Vehicle Homicide, OUI Charges For Cape Cod Woman Who Killed Friend In Accident

Anytime there is a motor vehicle accident involving alcohol in Massachusetts and someone is killed you can bet that serious criminal charges will issue. In cases such as this one there are two important aspects to the district attorney’s investigation that will dictate how this case is prosecuted. The first is the manner of operation of the vehicle being driven by the defendant. The more egregious this activity the more severe the charges. Police in this case have left open the possibility of additional charges against McCarron. One of these could be OUI Manslaughter. That crime would require a minimum mandatory five year state prison sentence. The statute authorizes a twenty year state prison sentence. The second component guiding how this case will be charged is the defendant’s blood alcohol level at the time of operation. Whenever someone suspected of drunk driving is hospitalized as a result of injuries medical personnel will take a blood test. A toxicology screen will be performed determining the level of alcohol in the person’s system at the time of the test. This case be challenged depending on the time and manner of testing. This is discussed some of my in other blog posts dealing with the proper method of blood testing for the presence of alcohol and extrapolation of the reading. If the alcohol level was high and the manner of operation was extreme you might see additional charges issue.

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