For Immediate Release - May 20, 2012

AG Coakley, Sen. Clark, Rep. O’Flaherty Seek to Address Drunk Driving Loophole

Responding to SJC Decision this Week, Proposed Changes Will Stiffen License Revocation Penalties for Individuals Refusing to Submit to a Breath Test After an OUI Arrest

BOSTON – Responding to a Supreme Judicial Court decision issued on Thursday, Attorney General Martha Coakley, State Senator Katherine Clark (D-Melrose), and House Judiciary Chairman Eugene L. O’Flaherty (D-Charlestown) announced today that that they are taking action to close an important loophole in an effort to toughen the laws against repeat drunk drivers.

The SJC decision, issued on Thursday, ruled that a “continuance without a finding” (CWOF) resolution in cases against certain defendants accused of operating under the influence were not considered convictions under the law. The result is that these cases would not trigger increased license revocation penalties for repeat drunk drivers that were passed as part of Melanie’s Law. Yesterday, Senator Clark filed an amendment as part of the Senate budget (Amendment 96 – “License Suspension For Refusing To Submit to a Breath Test”) to address the ruling and close the loophole. The Senate budget will be considered and voted on this Wednesday, May 23. Chairman O’Flaherty also has announced that he will seek to address this issue in the House.

“Repeat drunk drivers pose a dangerous threat to public safety,” AG Coakley said. “We must respond quickly to close this loophole and ensure that repeat drunk drivers are taken off the roads for significant periods of time. I am proud to partner with Senator Clark and Chairman O’Flaherty on this public safety issue.”

“This is a common-sense solution to maintain the strong penalties against repeat drunk drivers passed under Melanie’s Law,” Senator Clark said. “I look forward to working with Attorney General Coakley and my Senate colleagues on passing this important public safety amendment.”

"The SJC has identified a significant inability in the current law to effectively prosecute repeat drunk drivers,” Chairman O’Flaherty said. “I will work with the Attorney General and my colleagues in the Legislature to swiftly address this public safety issue."

On May 17, the SJC decided the case of Souza v. Registrar of Motor Vehicles.  In the decision, it ruled that a “continuance without a finding” was not considered a “conviction” under the law governing license suspension for individuals who refuse to submit to a so-called “breath test” after being arrested for operating under the influence.  This distinction is significant as the length of suspension depends on the individual’s prior convictions for operating under the influence:

  • No previous convictions: 180 day suspension
  • One previous conviction: 3 year suspension
  • Two previous convictions: 5 year suspension
  • Three or more previous convictions: Lifetime suspension.

To close this loophole, the AG Coakley, Senator Clark, and Chairman O’Flaherty have proposed two changes to the law.  First, the proposal would amend the definition of “conviction” to include individuals who admit to sufficient facts for a finding of guilty, directly addressing the problem in Souza where a similar admission was not considered to be a conviction.  Additionally, the proposal would consider as a first offense, for purposes of the breath test refusal, those situations where an individual has been referred to an alcohol or substance abuse treatment program as a result of a previous OUI prosecution.


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