There have been quite a few drunk driving stories in the news lately where people have been accused of DUI with an exceptionally large number of prior offenses and arrests alleged. There was just an alleged 10th offense in Salisbury (for which he was indicted and faces a maximum sentence in superior court). And there have been recent alleged high multiple offenses including an 11th offense in Worcester, a 7th offense in Revere, an 8th offense in Rehoboth and a 10th offense in New Bedford.
I am often asked questions by people with justifiable outrage about these cases.
- “How can these people keep getting away with it?
- “How are they not in jail?”
- “How can our drunk driving laws be so lax that these people are allowed to keep driving?”
There are a number of possible, quite reasonable explanations for this.
Massachusetts Drunk Driving Laws for multiple offenses are NOT Lax
The fact is that Massachusetts drunk driving laws are simply not lax. Anyone with a 5th offense or greater conviction for OUI is subject to a mandatory minimum 2 years in prison, and has their driver’s license revoked for life.
Just a breath test refusal on even a 3rd offense charge means you can’t get a license for at least 5 years, regardless of whether or not you are convicted in criminal court. And there are mandatory minimum jail sentences for driving on a suspended license because of an OUI charge.
In addition, under Melanie’s law, being convicted of an OUI while your license is under suspension or revoked because of an OUI adds another 1 year mandatory minimum, to be served consecutively. That appears to be true in both of these new stories.
So in each of these cases, the defendants are likely to be in prison for years if found guilty.
But the question remains: How is it possible to even get to the point where you are facing an 8th, 9th, or 10th offense?
Massachusetts has had a “lifetime lookback” law since 2002. Before that, it was only offenses in the previous 10 years that counted as priors.
In the case of the 8th offender, the Taunton Gazette reports that most of the defendant’s prior convictions were in the 80s, and 90s, before Melanie’s law. It is also reported that he has not a valid driver’s license since 1985.
He has only one conviction after Melanie’s Law, in 2007, so it is likely he spent time in jail for that offense. But that was at least 6 years ago, so even a with very strong sentence at that time, he would be out by now.
So at least in this one particular case, the explanation is straightforward. Almost all of his convictions were a very long time ago.
But there are other possibilities for other cases we see reported with a high number of supposed prior incidents.
Are the Alleged Prior Offenses Arrests or Conviction?
Everyone who is arrested for something is not guilty. Previous arrests for the same offense may be circumstantial evidence of a continuing problem, but they are not evidence. And sometimes the arrest numbers are inflated.
It may not be likely, but it is certainly possible that a person could be habitually harassed by police for unknown reasons. If you are often at the same bar, and the police have a problem with you, you could be arrested even when not guilty of drunk driving. One could amass a number of arrests that way, with no convictions.
Prior Arrests Beaten in Court Without Conviction
Yes, it is possible to beat charges in court, even multiple times. Not necessarily just because the individual got a very-skilled lawyer, but because the police did a poor job of gathering evidence, and/or the prosecutor simply couldn’t prove the case beyond a reasonable doubt.
Prior convictions themselves are never part of the evidence in court, and it is easy to understand why. Any allegations of having been charged with drunk driving previously would be prejudicial in decided the case.
A jury can only hear evidence of what happened in that one particular arrest. If they thought the person had been arrested or convicted multiple times previously, they would be far less skeptical of the evidence presented, and the defendant could never get a fair trial.
But it is not that easy to routinely beat cases. If the person was truly “guilty”, they would have to get pretty lucky to keep getting found not guilty time after time.
Prior convictions certainly do matter a great deal when it comes to sentencing. Assuming…..
Prior Offenses – Are They Provable?
Just because there is a report of a conviction, does not mean that it is a clearly established fact. Prosecutors do a quick search, and it makes it in the news, but that doesn’t make it an established fact in court.
When it is time for sentencing, the prosecutor must still prove the alleged prior convictions are definitely the same person. This is not always easy, especially with convictions that may be decades old. Old RMV, court, and police records are often incomplete. They may not even have a social security number on the documentations.
Many people have common names. If Jeremy Smith has a prior offense, it needs to be established beyond any reasonable doubt that the current defendant is the same Jeremy Smith.
So prior convictions could have resulted in no jail time because what the press reported as a 3rd or 4th offense was only sentenced as a first or second.
Alcoholism is Often the Problem
I have represented many multiple offense defendants. Anyone accused of ANY crime deserves excellent and vigorous representation in court.
I make no apology for that.
And not everyone who is accused of a crime is guilty.
But with many of these multiple offense cases, it is simply true that certain people can not stop themselves from drinking. And they make terrible, and yes, dangerous decisions after doing so.
That is not an excuse or a justification, but it is a fact. We need to make sure all of these people get effective treatment for their addictions. Not just for their sake, but for the sake of the public at large.