Island has yet to feel full effect of Melanie's Law
By Aubrey Gibavic - July 13, 2006
Last fall Gov. Mitt Romney signed into law legislation targeting repeat drunk drivers. While the full ramifications of the so-called Melanie's Law, named for a young girl killed by a drunk driver, have yet to be seen in the Island legal system, local law enforcement officials said the effects would soon be significant.
Local officials and those connected to the court system said that due to the amount of time needed to move cases through the court system and the infrequency of jury trials, prosecutions brought under Melanie's Law are only now beginning to take place. Court officials said that one consequence of the added penalties may be defendants who ask for a jury trial, rather than settle for the automatic consequences associated with plea bargains.
One local attorney also expects the law will act to influence the behavior of people in a positive way.
"It certainly sent a chill down the spine of most people to keep them from drinking and driving," said Island defense attorney Daniel Larkosh, of the harsh penalties Melanie's Law imposes. "You don't have to be linked up to the court system to know somebody who is going through this right now. I think it's definitely a deterrent."
Signed into law on Oct. 28, 2005, "An Act increasing penalties for Drunk Drivers in the Commonwealth," makes it easier for prosecutors to introduce evidence of past drunk driving convictions, provides new classes of crimes and expanded penalties for drivers convicted of drunk driving.
The law also incorporates new technology. Anyone with two or more Operating Under the Influence (OUI) convictions must install an ignition interlock device in their vehicle. The device, which is connected to the vehicle's ignition, requires offenders to pass a breath alcohol test before starting the car.
History of the law
On the sunny summer afternoon of July 25, 2003, Melanie Powell, 13, and her friends were walking to a beach in her hometown of Marshfield.
As the friends crossed Route 139, Pamela Murphy, who had been drinking at a local bar, came barreling down the road. The rest of the group was able to get out of the way: Melanie was not. State Police estimated the red Buick was traveling between 45 and 50 miles per hour, and said the impact threw Melanie 100 feet.
Melanie was transported to South Shore Hospital in Weymouth, and then to New England Medical Center in Boston where she died the next day.
Ms. Murphy was arrested and charged with drunken driving. Police testified they smelled alcohol on her breath, but said that she refused to take a breathalyzer test.
Ms. Murphy had been previously convicted in Plymouth District Court in Jan. 1993 for drunk driving.
On Oct. 21, 2004, Ms. Murphy was convicted of vehicular homicide and drunken driving in Brockton Superior Court by Judge Carol Ball, after a jury-waived trial.
Ms. Murphy was sentenced to 2 1/2 years in state prison - the minimum sentence required under the old law - plus two years probation following her release.
Under Melanie's Law, the minimum sentence for vehicular homicide was increased to five years.
Following the 2003 conviction, Melanie's parents, Tod and Nancy Powell, with the help of her grandfather Ron Bersani, pushed lawmakers to toughen penalties against repeat drunk drivers.
On May 27, 2005, Governor Romney filed Melanie's Bill, officially titled "An Act to Protect the Citizens of the Commonwealth from Drunk Drivers."
Penalties and new crimes
According to the weekly court report published in The Times, in any given week a majority of the charges heard in Edgartown District court are motor vehicle law violations.
Because drunk driving cases often take a year or more to make it into the court system, Assistant District Attorney Laura Marshard said the two jury sessions held in Edgartown District Court since the new law went into effect, have been dealing with pre-Melanie's Law cases.
According to statistics compiled by Edgartown clerk magistrate Liza Williamson, there have been 112 people charged with OUI's since the day Melanie's Law was enacted. The same number of arrests was made in the same time period last year, compared with 144 and 140 the two years before that.
"In the numbers, there doesn't appear to be a difference," Ms. Williamson said. "But by enhancing penalties they are looking for - or hoping for - a deterrence effect. There has not been anything noticeable at this point."
Ms. Williamson noted that along with new laws come new paperwork and filing systems, and it often takes courts some time to catch up.
"The law is a lot more broad than people think it is," she said. "The formal title captures only a small part of the law's reach."
But when the cases do start to filter into the Island court system, officials expect the increased penalties, and ease with which prosecutors can introduce evidence of earlier convictions, will begin to have an effect.
More trials predicted
Ms. Marshard, who prosecutes cases on both Islands, said more time must pass before the real impacts of the law are to be seen.
"The consequences are more severe, and in some situations there will be less plea bargains than before," Ms. Marshard said.
Due to the sporadic jury sessions held on the Island, Ms. Marshard said the two sessions held since the end of October have handled pre-Melanie's Law cases only.
When they do begin to try cases under Melanie's Law, she said it will be much easier to prove previous offenses. Before the law, prosecutors had to prove the defendant was convicted previously through witnesses who would identify them. Now, only a certified document of the previous conviction is needed.
"What I think I'm seeing is OUI cases are being more vigorously contested. Cases that before would go to a plea bargain are more likely to be contested because defendants go to trial and try their luck with the jury," Ms. Marshard said. "The loss of license consequences are more severe, and people on Martha's Vineyard rely heavily on their licenses."
The law also eliminates a block that defendants were previously granted, where convictions more than 10 years old would not be presented in court. Under the new law, all convictions are counted as "previous offenses," no matter how long ago they occurred.
Penalties are severe
One of the new penalties enforced by Melanie's Law went into effect on Jan. 1. As of that date, any operator with two more convictions was required to have an ignition interlock device installed in their car.
The handheld device, which is connected to the vehicle's ignition, requires offenders to pass a breath test before starting the car. If the blood alcohol content reads greater than .02, the vehicle will fail to start. The legal limit is .08.
Operators who pass the test are required to periodically blow into the device while driving. The device would not shut down the vehicle but will send a message that the operator has failed the test.
The devices are regulated through the Registry of Motor Vehicles (RMV). Operators must first meet with an RMV hearings officer to gain approval for installation. The closest hearings officer for Island residents is located in New Bedford, and the office is only open on Wednesdays.
After approval, the operator must contact an installation site certified by the state. There are no authorized dealers on the Island. The closest, Draeger Service Provider, located in Falmouth, is open three days a week for installation. There is a one-week waiting period.
Installation and hearings officer locations can be found at www.mass.gov/rmv.
The operator is required to pay for the $125 installation, plus $85 monthly maintenance fees. According to the RMV, the operator must return to the installation site every 30 days for a service visit.
The law also imposes harsher fines and longer mandatory minimum sentences for convicted repeat offenders. Under the new law, a person operating under the influence with a suspended license now receives a mandatory one-year minimum jail sentence, a one-year license suspension and a $2,500-$10,000 fine if convicted.
New and harsher penalties are also assessed to offenders who refuse an onsite breathalyzer test. First-time offenders who refuse to take the optional chemical test receive an automatic 180-day license suspension; an operator with three or more prior convictions will permanently loose driving privileges.
Previously, refusing a chemical test earned the operator a 15-day grace period before suspension. Under the new law, the temporary license is no longer awarded and the operator's car is impounded for 12 hours.
The law also comes down hard on underage offenders. Operators under the age of 21 with no prior convictions who refuse a breathalyzer test, receive an automatic three-year license suspension, and are required to complete an alcohol education course.
Dail Bouchard runs a 16-week "psychoeducational" alcohol course at Martha's Vineyard Community Services, where they get referrals from the court and RMV.
The class educates convicted OUI offenders of all ages about the dangers of alcohol and addiction. "Drug addiction doesn't have an age," said Ms. Bouchard, who added that she always has a large number of underage people in her classes. "What I hope to do with underage kids is to give them more things to think about and show the red flags for the future."
Topics covered in the class include state laws, alcohol abuse, and a focus on treatment. Classes are limited to 15 students, and the cost per participant is $567.22. Ms. Bouchard said offenders are given one year to complete the program, because gathering the funds after paying legal fees is often difficult.
Community Services also offers a similar program for second-time offenders.
Melanie's Law also created a range of new clauses, often making for a more complex procedural system. Now, employing or knowingly allowing an unlicensed operator to operate a motor vehicle, earns an automatic $500 fine, and a second offense carries possible jail time.
New crimes were also introduced in association with the interlock ignition device, such as breathing into the device for someone else, or knowingly lending a vehicle to someone who must operate with a device.
Melanie's Law also penalizes operators who drive with a child in the car. Convicted offenders are now charged with two crimes: an OUI and child endangerment. A first offense carries a minimum 90 days in jail.
Mr. Larkosh said he thinks that Melanie's Law will change the landscape of OUI trials on the Island.
"From a psychological standpoint it's having an effect," he said.
