Some MAD(D) in wake of Melanie’s Law

“Melanie’s Law.”

Named for Melanie Powell, a 13-year-old Marshfield girl struck down and killed in 2003 by a repeat drunk driver, this tough-minded anti-OUI measure had defense attorneys and victims’ advocates at each others’ throats before it was signed into law in the fall of 2005.

After a few early success stories about its enforcement, Melanie’s Law slipped off the front pages of newspapers and the public’s attention turned elsewhere.

But what has happened in the 18 months since then? Have drunk-driving accidents plummeted? Have there been more arrests and convictions of repeat offenders — those individuals most affected by the law?

“This is, indeed, still probably the best state in the country to be a drunk driver,” says Barbara Harrington, state executive director of Mothers Against Drunk Driving (MADD) Massachusetts, who claims that the courts are “a disaster” as a result of the legal wrangling by defense attorneys trying to find loopholes in Melanie’s Law.

While Harrington acknowledges that more people are submitting to the breath test — Melanie’s Law revoked the 15-day temporary license and increased the penalty to a 180-day loss of license for first-time offenders — she says that drunk-driving convictions are trending downward as more defense attorneys require the state to present expert testimony on the effectiveness of breath tests.

But legal analysts say that strategy may no longer work as a result of a decision in April by the state’s highest court, which ruled that expert testimony is not necessary.

To the dismay of many defense lawyers, the court said that prosecutors do not need to call an expert “so long as the [breath] test is conducted within a reasonable period of time after the driver’s last operation of the vehicle.”

But as the penalties for drunk driving stiffened with the passage of Melanie’s Law and other tough OUI legislation during the past couple of years, so, too, did the resolve of defense lawyers.

“For multiple offenses, I tell most of my clients to go to trial [since] the penalties are so hard for working out a deal that a lot of my clients are better off fighting it now,” says defense attorney Russell J. Matson of Braintree, whose website, madrunkdrivingdefense.com, states: “Don’t Let Your Massachusetts DUI Ruin Your Life!”

According to OUI defense attorney James M. Milligan Jr. of Norwell, business has increased since the Legislature approved Melanie’s Law.

“I don’t think it’s had any curbing effect,” he says, estimating that his office has about 400 pending OUI cases. “We were busy before Melanie’s bill, and we’re busy now — if not more busy.”

Nevertheless, statistics provided to Exhibit A by the RMV show a decrease in the number of second- and third-time offenders from 2005 to 2006. See chart at right. 

And another statistic that advocates of Melanie’s Law tout as proof of the measure’s success is the number of drivers who have had to install ignition interlock devices since January 2006. The device is required of anyone with a second or subsequent OUI offense who is eligible for a hardship license or license reinstatement. According to RMV statistics compiled beginning with the program’s inception through February of this year, 1,414 people currently have the device installed in their vehicles.

“I really think that it is something that can help curb the behavior of the repeat offender, and it has that social barrier,” says Anne L. Collins, state registrar. “The nature of addiction is that there will be relapses. Having this extra tool is a big safety improvement.”

Along with installation of the ignition interlock device, a driver is required to pass a breath test before starting the vehicle. A blood-alcohol reading of more than .02 prevents the vehicle from starting. At certain points while driving, the operator is required to re-take the test to prove that his blood-alcohol content remains below .02. The offender must also incur the costs of the device, which is $85 per month, plus approximately $200 for installation.

Defense attorneys argue that many clients have reported blowing false positives or claim their cars will not start even after they pass the breath test.

On a positive note, Harrington of MADD notes that, in 2005, the year that Melanie’s Law was being debated on Beacon Hill, the state’s drunk-driving-related deaths were down 20 percent from the previous year.

Ron Bersani, a staunch advocate of the bill named in his granddaughter’s honor, says that while progress has been made with the changes to the law, more needs to be done to tackle drunk driving.

“Until we start taking drunk driving seriously in this country, it’s going to continue,” he says. “And, unfortunately, that’s the problem: People don’t take it seriously.”

Although he says he understands the right of defense attorneys to vigorously defend their clients, he is less understanding about those attorneys who brag about multiple offenders or drivers who blew two times the legal limit on their breath tests but who go unpunished.

“It’s despicable,” says Bersani. “They’ve got blood on their hands.”

Jeannie Greeley, formerly a reporter for Massachusetts Lawyers Weekly, is a Boston-based freelance writer. She can be reached at jeannieg@comcast.net.