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May 24, 2012

Senate moves to close Melanie's Law loophole

BOSTON — The Senate late Wednesday night voted unanimously to close a "loophole" in state law meant to enhance penalties for repeat drunk drivers that was exposed last week by the Supreme Judicial Court when it overturned the license suspension of a two-time offender.

As the Senate prepared to wrap up its first night of the debate on $32.3 billion spending plan for fiscal 2013, it took little convincing from Senate Minority Leader Bruce Tarr and Sen. Katherine Clark to get lawmakers to back the budget amendment, which Tarr said had been "painstakingly" reviewed and tailored so as to apply only to repeat drunk drivers.

The amendment, offered by Tarr, seeks to address the SJC ruling that "continuance without a finding" resolutions in cases against certain defendants accused of operating under the influence are not considered convictions under Melanie's Law and therefore would not trigger increased license revocation penalties for repeat drunk drivers intended under the law.

The Supreme Judicial Court last week overturned the license suspension of an individual based on a 2010 case in which the defendant refused to take a breath test.

Despite the defendant having previously been arrested for drunk driving in 1997 in a case that was continued without a finding after the individual admitted to sufficient facts, the court ruled that the 1997 case did not count as a first offense under Melanie's Law because it did not qualify as a "conviction."

Tarr said the distinction drawn by the court undermined the "statutory scheme" the Legislature put in place. "Therefore, we must act," Tarr said.

Sen. Katherine Clark (D-Melrose) called the amendment "straightforward and critical" to keeping Melanie's Law "robust" and the roads safe. "We are not going to tolerate repeat drunk driving offenses in Massachusetts any longer," Clark said.

The amendment passed 37-0 in the final vote of the night for the Senate which began its debate on the fiscal 2013 budget Wednesday morning plowing through 253 of the 694 amendments filed to the bill, adopting 55 changes and rejecting 145 proposals. Senators withdrew 43 of their amendments, and 10 were ruled out of order because they dealt with tax policy. There were 17 roll-call votes.

While Rep. Eugene O'Flaherty has said he would pursue similar action in the House to correct Melanie's Law, Sen. Robert Hedlund (R-Weymouth) told his colleagues Wednesday night that they were not done considering updates to the drunk driving law.

Hedlund said Senate leaders had "struggled with the language," but intended to bring an amendment forward on Thursday seeking to close another "loophole" in the law, which Senate aides described later as a concern that a defendant waiting to resolve one OUI charge who is subsequently arrested again for a similar violation could have the cases treated as a single incident under Melanie's Law and not face the increased penalties for repeat offenses.

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