The Massachusetts OUI Law is commonly known as “Melanie’s Law.” The most important practical effect of the law is the Lifetime Look back provision. A subsequent OUI offense in Massachusetts incorporates a person’s prior lifetime history of Drunk Driving Offenses in any jurisdiction. And yes, a prior continuance without a finding (C.W.O.F.) on a Massachusetts OUI 1st offense counts as a prior offense for purposes of prosecution as a subsequent offender. Any offense resulting in a conviction, or an assignment to an alcohol education program, counts as a prior. With a C.W.O.F. on an OUI there is a mandatory assignment to complete the sixteen (16) week alcohol education program. That is why a C.W.O.F. counts for the rest of your life as a prior offense, even though the disposition is not considered a “conviction” under the law of the Commonwealth of Massachusetts. It is a lawyer’s duty to explain this unique provision of the law to any person considering pleading out to an OUI 1st charge, because: “It’s not a conviction,” but the practical effect is that it is a prior offense if there is ever another OUI arrest in Massachusetts.

Case in point. I recently successfully resolved an OUI Subsequent offense charge for a client in November, 2013. The arrest occurred in December 2012. Because this particular client had previously received a C.W.O.F. disposition on an OUI charge in 1981, hewas charged as a Second Offense OUI in 2012. 31 years later he is treated as a second offender in Massachusetts. The potential penalty as a second offender included a mandatory placement in the fourteen (14) days inpatient treatment or a sixty (60) day jail sentence, with a two (2) year probation period, and lastly the requirement of an ignition interlock system for at least two (2) years when the license/driving privilege is restored. This particular driver’s refusal of a breath test in December of 2012 triggered a three (3) year loss of license/driving privilege because of the prior C.W.O.F. The lifetime look back provision of “Melanie’s Law” effects administrative Chemical Test Refusal (CTR) suspensions through the MA RMV as well. A CTR with no priors is 180 days. A CTR with one prior is three (3) years. A CTR with two priors is five (5) years. A CTR with three (3) priors is a lifetime suspension. The only way to avoid the balance of any Chemical Test Refusal suspension, and the mandatory interlock requirement for a subsequent offender, is an acquittal on the OUI charge or outright dismissal of the OUI charge.

Thankfully, the charge in this case was dismissed outright, due to evidentiary issues involving failure to disclose exculpatory evidence by the government. When an OUI charge is dismissed outright, or an acquittal is obtained, the defendant/driver is entitled to an immediate hearing on a Motion to Reinstate his license/driving privilege. At the hearing there is a presumption that the license be restored and the Chemical Test Refusal suspension be vacated, unless the government can prove, by a preponderance of the evidence, that restoration of the license/driving privilege will endanger public safety. Most drivers, including the case in point, can avoid this showing, and have their license/driving privilege restored.