Session Laws

Whereas, The deferred operation of this act would tend to defeat its purpose, which is to immediately provide for an increase in the penalties for operating under the influence, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public safety.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. To provide for supplementing certain items in the general appropriation act and for certain other activities and projects, the sums set forth in section two for the several purposes and subject to the provisions of law regulating the disbursement of public funds and the conditions pertaining to appropriations in chapter two hundred and six of the acts of nineteen hundred and eighty-six, for the fiscal year ending June thirtieth, nineteen hundred and eighty-seven or for such period as may be specified, the sums so appropriated to be in addition to any amounts available for the purpose.

SECTION 2.

`tm;keep=no `tcol=6,B4;c1=1,9,tu,T;c2=1,78,tuc;c3=1,78,tuc;c4=11,53,tfh1;c5=15,49,tu;c6=65,14,tur `tc3 EXECUTIVE OFFICE OF ADMINISTRATION AND FINANCE. `tc2 Miscellaneous. `tc1 1599-3609 `tc4 For a reserve to implement the Safe Roads Act, so-called; provided, however, that funds appropriated herein may be transferred to other items of appropriation, including accounts under the control of the chief administrative justice of the trial courts; provided, further, that funds appropriated herein may be used to fund (1) programs in alcohol education and education in the laws relating to alcohol and motor vehicle use, to be administered by the office of the chief administrative justice of the trial court, for judicial and nonjudicial trial court personnel and district attorneys and their staffs, (2) pilot programs in three district courts to implement a uniform presentence reporting system and a direct linkup between said courts and the registry of motor vehicles' computerized record system, (3) the development by the department of public health of programs established specifically for the education and treatment of drinking drivers under the age of twenty-one, and (4) the compensation through line item 0611-5000 of seriously injured victims of drivers found to have been operating under the influence of intoxicating liquor; provided, however, that all federal funds available for such purposes have been expended; and provided, further, that expenditures from this item shall be made in accordance with schedules approved by the house and senate committees on ways and means and that a progress report on programs funded from this item shall be submitted to the house and senate committees on post audit and oversight and the house and senate committees on ways and means no later than April thirtieth, nineteen hundred and eighty-seven `tc6 $500,000 `tcol;end

SECTION 3. Section 23 of chapter 90 of the General Laws, as appearing in the 1984 Official Edition, is hereby amended by striking out the second paragraph and inserting in place thereof the following paragraph:-

Any person convicted of operating a motor vehicle after his license to operate has been suspended or revoked pursuant to a violation of paragraph (a) of subdivision (1) of section twenty-four, or pursuant to section twenty-four D, twenty-four E, twenty-four G, twenty-four L, or twenty-four N, or after notice of such suspension or revocation of his right to operate a motor vehicle without a license has been issued and received by such person or by his agent or employer, and prior to the restoration of such license or right to operate or the issuance to him of a new license to operate shall be punished by a fine of not less than one thousand nor more than ten thousand dollars and by imprisonment in a house of correction for not less than sixty days and not more than two and one-half years; provided, however, that the sentence of imprisonment imposed upon such person shall not be reduced to less than sixty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served sixty days of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent or other person in charge of a correctional institution, or of the administrator of a county correctional institution, grant to an offender committed under this paragraph a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to a work release program. The provisions of section eighty-seven of chapter two hundred and seventy-six shall not apply to any person charged with a violation of this paragraph. Prosecutions commenced under this paragraph shall not be placed on file or continued without a finding.

SECTION 4. The last paragraph of said section 23 of said chapter 90, as so appearing, is hereby amended by adding the following sentence:- A certificate of a clerk of court that a person's license or right to operate a motor vehicle was suspended for a specified period shall be admissible as prima facie evidence in any court of the commonwealth to prove the facts certified to therein in any prosecution commenced under this section.

SECTION 5. The second paragraph of subparagraph (1) of paragraph (a) of subdivision (1) of section 24 of said chapter 90, as so appearing, is hereby amended by striking out, in lines 15, 17 and 20, the word "seven" and inserting in place thereof, in each instance, the word:- fourteen.

SECTION 6. The third paragraph of said subparagraph (1) of said paragraph (a) of said subdivision (1) of said section 24 of said chapter 90, as so appearing, is hereby amended by striking out, in lines 36, 37 and 40, the word "sixty" and inserting in place thereof, in each instance, the word:- ninety,- and by inserting after the word "program", in line 50, the words:- ; provided, further, that the defendant shall serve such ninety day sentence in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers.

SECTION 7. Said subparagraph (1) of said paragraph (a) of said subdivision (1) of said section 24 of said chapter 90, as so appearing, is hereby further amended by striking out the fourth and fifth paragraphs and inserting in place thereof the following three paragraphs:-

If the defendant has been previously convicted or assigned to an alcohol education or rehabilitation program by a court of the commonwealth because of a like offense three or more times within six years preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than five hundred nor more than one thousand dollars and by imprisonment for not less than six months nor more than two years; provided, however, that the sentence imposed upon such person shall not be reduced to less than six months nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served six months of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or of the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to a work release program.

A prosecution commenced under the provisions of subparagraph (1) shall not be placed on file or continued without a finding except for dispositions under section twenty-four D. No trial shall be commenced on a complaint alleging a violation of this subparagraph, nor shall any plea be accepted on such a complaint, nor shall the prosecution on such a complaint be transferred to another division of the district court or to a jury-of-six session, until the court receives a report from the commissioner of probation pertaining to the defendant's record, if any, of prior convictions of such violations or of assignment to an alcohol education or rehabilitation program because of a like offense; provided, however, that the provisions of this paragraph shall not justify the postponement of any such trial or of the acceptance of any such plea for more than five working days after the date of the defendant's arraignment. The commissioner of probation shall give priority to requests for such records.

At any time before the commencement of a trial or acceptance of a plea on a complaint alleging a violation of this subparagraph, the prosecutor may apply for the issuance of a new complaint pursuant to section thirty-five A of chapter two hundred and eighteen alleging a violation of this subparagraph and one or more prior like violations. If such application is made, upon motion of the prosecutor, the court shall stay further proceedings on the original complaint pending the determination of the application for the new complaint. If a new complaint is issued, the court shall dismiss the original complaint and order that further proceedings on the new complaint be postponed until the defendant has had sufficient time to prepare a defense.

SECTION 8. Subparagraph (3) of said paragraph (a) of said subdivision (1) of said section 24 of said chapter 90, as so appearing, is hereby amended by inserting after the word "holidays", in line 77, the words:- ; provided, however, that the provisions of this subparagraph shall apply only to a defendant who has not been convicted previously of such a violation or assigned to an alcohol education program within six years preceding the date of the commission of the offense for which he has been convicted.

SECTION 9. The first paragraph of subparagraph (4) of said paragraph (a) of said subdivision (1) of said section 24 of said chapter 90, as so appearing, is hereby amended by adding the following sentence:- Such condition of probation shall specify a date before which such residential alcohol treatment program shall be attended and completed.

SECTION 9A. The second paragraph of said subparagraph (4) of said paragraph (a) of said subdivision (1) of said section 24 of said chapter 90, as so appearing, is hereby amended by adding the following two sentences:- In such proceedings, such defendant shall be taken before the court and if the court finds that he has failed to attend or complete the residential alcohol treatment program before the date specified in the conditions of probation, the court shall forthwith specify a second date before which such defendant shall attend or complete such program and, unless such defendant shows extraordinary and compelling reasons for such failure, shall forthwith sentence him to imprisonment for not less than two days; provided, however, that such sentence shall not be reduced to less than two days, nor suspended, nor shall such person be eligible for furlough or receive any deduction from his sentence for good conduct until he shall have served two days of such sentence; and provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or of the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to a work release program. If such defendant fails to attend or complete the residential alcohol treatment program before the second date specified by the court, further proceedings pursuant to said section three of said chapter two hundred and seventy-nine shall be commenced, and the court shall forthwith sentence the defendant to imprisonment for not less than fourteen days as provided in subparagraph (1) for such a defendant.

SECTION 10. Subparagraph (3) of paragraph (c) of said subdivision (1) of said section 24 of said chapter 90, as so appearing, is hereby amended by striking out, in line 163, the words "or more".

SECTION 10A. Said paragraph (c) of said subdivision (1) of said section 24 of said chapter 90, as so appearing, is hereby further amended by inserting after subparagraph (3) the following subparagraph:-

(3 1/2) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol education or rehabilitation program by a court of the commonwealth because of a like violation three or more times within a period of six years preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of such person unless the prosecution of such person has terminated in favor of the defendant, until ten years after the date of the conviction; provided, however, that such person may, after the expiration of five years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary.

SECTION 11. Paragraph (e) of said subdivision (1) of said section 24 of said chapter 90, as so appearing, is hereby amended by inserting after the second sentence the following sentence:- When there is no evidence presented at a civil or criminal proceeding of the percentage, by weight, of alcohol in the defendant's blood, the presiding judge at a trial before a jury shall include in his instructions to the jury a statement of an arresting officer's responsibilities upon arrest of a person suspected to be operating a motor vehicle under the influence of alcohol and a statement: that a blood alcohol test may only be administered with a person's consent; that a person has a legal right to take or not take such a test; that there may be a number of reasons why a person would not take such a test; that there may be a number of reasons why such a test was not administered; that there shall be no speculation as to the reason for the absence of a test and no inference can be drawn from the fact that there was no evidence of a blood alcohol test; and that a finding of guilty or not guilty must be based solely on the evidence that was presented in the case.

SECTION 12. Paragraph (f) of said subdivision (1) of said section 24 of said chapter 90, as so appearing, is hereby amended by striking out, in lines 256 and 273, the word "ninety" and inserting in place thereof, in each instance, the words:- one hundred and twenty.

SECTION 13. Said section 24 of said chapter 90, as so appearing, is hereby further amended by adding the following subdivision:-

(4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or prior finding of sufficient facts by either original court papers or certified attested copy of original court papers, accompanied by a certified attested copy of the biographical and informational data from official probation office records, shall be prima facie evidence that a defendant has been convicted previously or assigned to an alcohol education or rehabilitation program because of a like offense by a court of the commonwealth one or more times within a period of six years preceding the date of commission of the offense for which said defendant is being prosecuted.

SECTION 14. Section 24D of said chapter 90, as so appearing, is hereby amended by striking out, in line 7, the words "thirty days" and inserting in place thereof the words:- a period of no less than forty-five nor more than ninety days; provided, however, that if such person was under the age of twenty-one when the offense was committed, the person's license or right to operate shall be suspended for one hundred and eighty days, and such person shall be assigned to a program specifically designed by the department of public health for the education and treatment of underage drinking drivers.

SECTION 15. Subsection (a) of section 24G of said chapter 90, as so appearing, is hereby amended by striking out, in line 12, the word "ten" and inserting in place thereof the word:- fifteen,- and by inserting after the word "sentence", in line 19, the words:- until such person has served at least one year of such sentence.

SECTION 16. Said section 24G of said chapter 90, as so appearing, is hereby further amended by adding the following subsection:-

(c) The registrar shall revoke the license or right to operate of a person convicted of a violation of subsection (a) or (b) for a period of ten years after the date of conviction for a first offense. The registrar shall revoke the license or right to operate of a person convicted for a subsequent violation of this section for the life of such person. No appeal, motion for a new trial or exceptions shall operate to stay the revocation of the license or of the right to operate; provided, however, such license shall be restored or such right to operate shall be reinstated if the prosecution of such person ultimately terminates in favor of the defendant.

SECTION 17. Said chapter 90 is hereby further amended by inserting after section 24J the following five sections:-

Section 24K. Chemical analysis of the breath of a person charged with a violation of this chapter shall not be considered valid under the provisions of this chapter, unless such analysis has been performed by a certified operator, using infrared breath-testing devices according to methods approved by the secretary of public safety. The secretary of public safety shall promulgate rules and regulations regarding satisfactory methods, techniques and criteria for the conduct of such tests, and shall establish a statewide training and certification program for all operators of such devices and a periodic certification program for such breath testing devices; provided, however, that the secretary may terminate or revoke such certification at his discretion.

Said regulations shall include, but shall not be limited to the following: (a) that the chemical analysis of the breath of a person charged be performed by a certified operator using a certified infrared breath-testing device in the following sequence: (1) one adequate breath sample analysis; (2) one calibration standard analysis; (3) a second adequate breath sample analysis; (b) that no person shall perform such a test unless certified by the secretary of public safety; (c) that no breath testing device, mouthpiece or tube shall be cleaned with any substance containing alcohol.

The secretary of public safety shall prescribe a uniform form for reports of such chemical analysis to be used by law enforcement officers and others acting in accordance with the provisions of this chapter. Such forms shall be sequentially numbered. Each chief of police or other officer or official having charge or control of a law enforcement agency shall be responsible for the furnishing and proper disposition of such uniform forms. Each party so responsible shall prepare or cause to be prepared such records and reports relating to such uniform forms and their disposition in such manner and at such times as the secretary of public safety shall prescribe.

Section 24L. (1) Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle while under the influence of intoxicating liquor, or marihuana, narcotic drugs, depressants, or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue, and so operates a motor vehicle recklessly or negligently so that the lives or safety of the public might be endangered, and by any such operation so described causes serious bodily injury, shall be punished by imprisonment in the state prison for not less than two and one-half years nor more than ten years and by a fine of not more than five thousand dollars, or by imprisonment in a jail or house of correction for not less than six months nor more than two and one-half years and by a fine of not more than five thousand dollars.

The sentence imposed upon such person shall not be reduced to less than six months, nor suspended, nor shall any person convicted under this subsection be eligible for probation, parole, or furlough or receive any deduction from his sentence until such person has served at least six months of such sentence; provided, however, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or of the administrator of a county correctional institution, grant to an offender committed under this subsection a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to a work release program. Prosecutions commenced under this subdivision shall neither be continued without a finding nor placed on file.

The provisions of section eighty-seven of chapter two hundred and seventy-six shall not apply to any person charged with a violation of this subdivision.

(2) Whoever, upon any way or in any place to which the public has a right of access or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle while under the influence of intoxicating liquor, or of marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or vapors of glue, and by any such operation causes serious bodily injury, shall be punished by imprisonment in a jail or house of correction for not more than two and one-half years, or by a fine of not less than three thousand dollars, or both.

(3) For the purposes of this section "serious bodily injury" shall mean bodily injury which creates a substantial risk of death or which involves either total disability or the loss or substantial impairment of some bodily function for a substantial period of time.

(4) The registrar shall revoke the license or right to operate of a person convicted of a violation of subdivision (1) or (2) for a period of two years after the date of conviction. No appeal, motion for new trial or exception shall operate to stay the revocation of the license or the right to operate; provided, however, such license shall be restored or such right to operate shall be reinstated if the prosecution of such person ultimately terminates in favor of the defendant.

Section 24M. The officials and agencies designated in this section are hereby directed to perform the duties specified in this section and any other action within their authority in order to ensure effective enforcement of sections twenty-four to twenty-four O, inclusive.

(1) The criminal justice training council established in section one hundred and sixteen of chapter six shall provide training, including but not limited to alcohol education and education concerning the aforesaid sections, to all law enforcement personnel throughout the commonwealth.

(2) The chief administrative justice of the trial court department shall provide training, including but limited to alcohol education and education concerning the aforesaid sections, to all appropriate court personnel throughout the commonwealth, including, but not limited to, judges, district attorneys and probation officers.

(3) The courts of the commonwealth shall give priority to the speedy and effective disposition of all matters arising under the aforesaid sections.

(4) The executive office of public safety shall establish and implement an alcohol sensitive selective traffic enforcement program.

Section 24N. Upon the issuance of a complaint alleging a violation of paragraph (a) of subdivision (1) of section twenty-four or a violation of section twenty-four G or twenty-four L, the judge, in addition to any other terms of bail or recognizance, shall immediately suspend the defendant's license or right to operate a motor vehicle if the prosecution makes a prima facie showing at the arraignment that said defendant was operating a motor vehicle while the percentage, by weight, of alcohol in his blood was ten one-hundredths or more, as shown by chemical test or analysis of his blood or breath, and presents written certification or oral testimony from the person administering to the defendant such chemical test or analysis of his blood or breath that the defendant was administered such a test or analysis, that the operator administering the test or analysis was trained and certified in the administration of such tests, that the test was performed in accordance with regulations and standards promulgated by the secretary of public safety, that the equipment used for such test was regularly serviced and maintained, and that the person administering the test had every reason to believe the equipment was functioning properly at the time the test was administered. Such certification shall be prima facie evidence of the facts so certified. Upon such a showing and presentation, the judge shall take immediate physical possession of such defendant's license to operate a motor vehicle, and shall direct the prosecuting officer to forthwith notify the criminal history systems board and the registrar of such suspension by the most expeditious means available. The defendant's license to operate a motor vehicle shall remain suspended until the disposition of the offense for which said defendant is being prosecuted, but in no event shall such suspension pursuant to this section exceed ninety days.

Any person whose license or right to operate has been suspended pursuant to this section on the basis of chemical analysis of his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to a hearing before the court, which hearing shall be limited to the following issue: whether a blood test administered pursuant to paragraph (f) of subdivision (1) of section twenty-four, within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such person's blood was less than ten one-hundredths. If the court finds that such a blood test shows that such percentage was less than ten one-hundredths, the court shall restore such person's license or right to operate and shall direct the prosecuting officer to forthwith notify the criminal history systems board and the registrar of such restoration.

Section 24 O. Upon conviction of any violation of the provisions of this chapter, the defendant shall be provided a statement in writing, in easy to understand language, of the statutory provisions that apply to any further violation of said chapter.

SECTION 18. The third paragraph of section 2 of chapter 90C of the General Laws, as appearing in the 1984 Official Edition, is hereby amended by adding the following sentence:- The provisions of the first sentence of this paragraph shall not apply to any complaint or indictment charging a violation of section twenty-four, twenty-four G or twenty-four L of chapter ninety, providing such complaint or indictment relates to a violation of automobile law which resulted in one or more deaths.

SECTION 19. The fifth paragraph of said section 2 of said chapter 90C, as so appearing, is hereby amended by adding the following sentence:- A failure to comply with the provisions of the first sentence of this paragraph shall not constitute a defense to any complaint or indictment charging a violation of section twenty-four, twenty-four G or twenty-four L of chapter ninety; provided, however, that such complaint or indictment relates to a violation of automobile law which resulted in one or more deaths.

SECTION 20. Section 1 of chapter 258A of the General Laws, as amended by section 1 of chapter 605 of the acts of 1985, is hereby further amended by striking out the definition of "Crime" and inserting in place thereof the following definition:-

"Crime", an act committed by an adult or a juvenile in the commonwealth which, if committed by a mentally competent, criminally responsible adult, who had no legal exemption or defense, would constitute a crime; provided, however, that such act involves the application of force or violence or the threat of force or violence by the offender upon the victim. The word "crime" shall include any violation of any provision of section twenty-four to twenty-four O, inclusive, of chapter ninety which results in serious personal physical injury to the victim or the death of the victim.

SECTION 21. There is hereby established in three district courts of the commonwealth designated by the chief justice of the district court division of the trial court department a pilot program to increase the efficiency and effectiveness of the issuance of complaints, sentencing, and disposition of cases in which there is a conviction under sections twenty-four to twenty-four O, inclusive, of chapter ninety of the General Laws. Said program shall include establishment of a direct linkage between the said district courts and the registry of motor vehicles computerized record system to enable the justices of said district courts to access through terminals located in the district court all information maintained by said registry pertaining to a person charged with an alcohol related offense under said chapter ninety and to enable appropriate personnel of said district courts to transmit directly from one or more terminals located in said district courts information to the registry regarding any case disposition or other court action which under the provisions of any general or special law requires action by the registrar of motor vehicles or which includes findings or other determinations which are or should become part of the information and record system maintained by said registry. In addition, said program shall include implementation of a uniform presentence reporting system under which there is made available to the sentencing judge prior to the imposition of a sentence or other disposition of a case where a person has been convicted of or has entered a plea of guilty to an alcohol related offense under said chapter ninety a report which is uniform in content and in format and which contains, at a minimum, information pertaining to the offender which is in the records maintained by the central office of probation, by the registry of motor vehicles, and by the motor vehicle insurance merit rating board established pursuant to section one hundred and eighty-three of chapter six of the General Laws.

SECTION 22. The commissioner of probation and the registrar of motor vehicles shall cooperate and jointly work with the chief administrative justice of the district court department in implementing the provisions of section twenty-one of this act. No later than thirty days after the effective date of said section twenty-one, the chief justice of the district court department, the commissioner of probation and the registrar of motor vehicles jointly shall file with the clerk of the house of representatives an implementation plan which contains the duties and responsibilities of the respective departments and the time period within which the program established under section twenty-four of this act will be implemented who shall forward the same to the senate and house committees on post audit and oversight. On or before January first, nineteen hundred and eighty-eight the chief justice of the district court division of the trial court department shall submit to said committees on post audit and oversight a report on the operations of said program which report shall contain recommendations regarding the continuation, expansion or modification of the program. Said chief justice may from time to time submit such additional reports to said committees as he deems necessary or desirable.

SECTION 23. The provisions of this act shall apply to violations committed on or after the effective date of this act; provided, however, that the requirement in section twenty-four N of chapter ninety of the General Laws, inserted by section seventeen of this act, that the prosecution show at the arraignment that the chemical test or analysis of a defendant's breath or blood was performed in accordance with regulations and standards of public safety shall not become effective until July first, nineteen hundred and eighty-seven; and provided, further, that the provisions of section twenty-four K of said chapter ninety, inserted by said section seventeen, shall not affect the validity of any chemical analysis of the breath until after July first, nineteen hundred and eighty-seven.