Session Laws

Whereas, The deferred operation of this act would tend to defeat its purpose, which is, in part, to alleviate a serious public safety problem relative to the operation of motor vehicles under the influence of alcoholic beverages in the commonwealth, 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. The first paragraph of section 23 of chapter 90 of the General Laws, as appearing in the 1992 Official Edition, is hereby amended by striking out, in line 19, the word "ten" and inserting in place thereof the word:- sixty.

SECTION 2. Said first paragraph of said section 23 of said chapter 90, as so appearing, is hereby further amended by adding the following sentence:- In no case shall a person be prosecuted for operating after suspension or revocation of a license upon a failure to pay an administrative reinstatement fee without a prior written notice from the registrar mandating payment thereof.

SECTION 3. Subdivision (1) of section 24 of said chapter 90, as so appearing, is hereby amended by striking out paragraphs (a) and (b) and inserting in place thereof the following two paragraphs:-

(a) (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 of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and one-half years, or both such fine and imprisonment.

There shall be a surcharge of one hundred dollars on a fine assessed against a defendant convicted of operating a motor vehicle while under the influence of intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances; provided, however, that moneys collected pursuant to said surcharge shall be deposited by the court with the treasurer into the Trust Fund for the Head Injury Treatment Services. In cases of multiple offenses, said surcharge shall be assessed each and every time a defendant is convicted of operating a motor vehicle while under the influence of intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances.

If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation within ten 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 six hundred nor more than ten thousand dollars and by imprisonment for not less than sixty days nor more than two and one-half years; provided, however, that the sentence imposed upon such person shall not be reduced to less than thirty 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 such person has served thirty days of such sentence, unless otherwise sentenced to an intermediate sanction as promulgated by the sentencing commission established in chapter four hundred and thirty-two of the acts of nineteen hundred and ninety-three; 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 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; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such thirty day sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers.

If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth, or any other jurisdiction because of a like offense two times within ten 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 one thousand nor more than fifteen thousand dollars and by imprisonment for not less than one hundred and eighty days nor more than two and one-half years or by a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than one hundred and fifty 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 one hundred and fifty days of such sentence, unless otherwise sentenced to an intermediate sanction as promulgated by the sentencing commission established in chapter four hundred and thirty-two of the acts of nineteen hundred and ninety-three; 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 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; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such one hundred and fifty days sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers.

If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense three times within ten 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 one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment for not less than two years nor more than two and one-half years, or by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twelve 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 such person has served twelve months of such sentence, unless otherwise sentenced to an intermediate sanction as promulgated by the sentencing commission established in chapter four hundred and thirty-two of the acts of nineteen hundred and ninety-three; 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 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; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such twelve months sentence to the extent that resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers.

If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense four or more times within ten 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 two thousand nor more than fifty thousand dollars and by imprisonment for not less than two and one-half years or by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twenty-four 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 twenty-four months of such sentence, unless otherwise sentenced to an intermediate sanction as promulgated by the sentencing commission established in chapter four hundred and thirty-two of the acts of nineteen hundred and ninety-three; 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 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; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such twenty-four months sentence to the extent that resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers.

A prosecution commenced under the provisions of this subparagraph 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 complaint, nor shall the prosecution on such 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 or controlled substance education, treatment, 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.

If a defendant waives right to a jury trial pursuant to section twenty-six A of chapter two hundred and eighteen on a complaint under this subdivision he shall be deemed to have waived his right to a jury trial on all elements of said complaint.

(2) Except as provided in subparagraph (4) the provisions of section eighty-seven of chapter two hundred and seventy-six shall not apply to any person charged with a violation of subparagraph (1) and if said person has been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction within a period of ten years immediately preceding the commission of the offense with which he is charged.

(3) Notwithstanding the provisions of section six A of chapter two hundred and seventy-nine, the court may order that a defendant convicted of a violation of subparagraph (1) be imprisoned only on designated weekends, evenings or holidays; provided, however, that the provisions of this subparagraph shall apply only to a defendant who has not been convicted previously of such violation or assigned to an alcohol or controlled substance education, treatment or rehabilitation program within ten years preceding the date of the commission of the offense for which he has been convicted.

(4) Notwithstanding the provisions of subparagraphs (1) and (2), a judge, before imposing a sentence on a defendant who pleads guilty to or is found guilty of a violation of subparagraph (1) and who has not been convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense two or more times within ten years of the date of the commission of the offense for which he has been convicted, shall receive a report from the probation department of a copy of the defendant's driving record, the criminal record of the defendant, if any, and such information as may be available as to the defendant's use of alcohol and may, upon a written finding that appropriate and adequate treatment is available to the defendant and the defendant would benefit from such treatment and that the safety of the public would not be endangered, with the defendant's consent place a defendant on probation for two years; provided, however, that a condition for such probation shall be that the defendant be confined for no less than fourteen days in a residential alcohol treatment program and to participate in an out patient counseling program designed for such offenders as provided or sanctioned by the division of alcoholism, pursuant to regulations to be promulgated by said division in consultation with the department of correction and with the approval of the secretary of human services or at any other facility so sanctioned or regulated as may be established by the commonwealth or any political subdivision thereof for the purpose of alcohol or drug treatment or rehabilitation, and comply with all conditions of said residential alcohol treatment program. Such condition of probation shall specify a date before which such residential alcohol treatment program shall be attended and completed.

Failure of the defendant to comply with said conditions and any other terms of probation as imposed under this section shall be reported forthwith to the court and proceedings under the provisions of section three of chapter two hundred and seventy-nine shall be commenced. 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 reduction from his sentence for good conduct until such person has 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 thirty days as provided in subparagraph (1) for such a defendant.

The defendant shall pay for the cost of the services provided by the residential alcohol treatment program; provided, however, that no person shall be excluded from said programs for inability to pay; and provided, further, that such person files with the court, an affidavit of indigency or inability to pay and that investigation by the probation officer confirms such indigency or establishes that payment of such fee would cause a grave and serious hardship to such individual or to the family of such individual, and that the court enters a written finding thereof. In lieu of waiver of the entire amount of said fee, the court may direct such individual to make partial or installment payments of the cost of said program.

(b) A conviction of a violation of subparagraph (1) of paragraph (a) shall revoke the license or right to operate of the person so convicted unless such person has not been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction within a period of ten years preceding the date of the commission of the offense for which he has been convicted, and said person qualifies for disposition under section twenty-four D and has consented to probation as provided for in said section twenty-four D; provided, however, that no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license or the right to operate. Such revoked license shall immediately be surrendered to the prosecuting officer who shall forward the same to the registrar. The court shall report immediately any revocation, under this section, of a license or right to operate to the registrar and to the police department of the municipality in which the defendant is domiciled. Notwithstanding the provisions of section twenty-two, the revocation, reinstatement or issuance of a license or right to operate by reason of a violation of paragraph (a) shall be controlled by the provisions of this section and sections twenty-four D and twenty-four E.

SECTION 4. Paragraph (c) of said subdivision (1) of said section 24 of said chapter 90, as so appearing, is hereby amended by striking out subparagraphs (1), (2), (3), and (3>), and inserting in place thereof the following five subparagraphs:-

(1) Where the license or right to operate has been revoked under section twenty-four D or twenty-four E, or revoked under paragraph (b) and such person has not been convicted of a like offense or has not been assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction within a period of ten years preceding the date of the commission of the offense for which he has been convicted, the registrar shall not restore the license or reinstate the right to operate to such person unless the prosecution of such person has been terminated in favor of the defendant, until one year after the date of conviction; provided, however, that such person may, after the expiration of three months 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 for employment or educational purposes, which license shall be effective for not more than an identical twelve hour period every day 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 license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of six months 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.

(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 or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation within a period of ten 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 been terminated in favor of the defendant, until two years after the date of the conviction; provided, however, that such person may, after the expiration of six months 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 for employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day 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 that such person shall have successfully completed the residential treatment program in subparagraph (4) of paragraph (a) of subdivision (1), or such treatment program mandated by section twenty-four D, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of one year 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.

(3) Where the license or right to operate of any person has been revoked under paragraph (b) and such person has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction two times within a period of ten years preceding the date of the commission of the crime for which he has been convicted or where the license or right to operate has been revoked pursuant to section twenty-three due to a violation of said section due to a prior revocation under paragraph (b) or under section twenty-four D or twenty-four E, the registrar shall not restore the license or reinstate the right to operate to such person, unless the prosecution of such person has terminated in favor of the defendant, until eight years after the date of conviction; provided however, that such person may, after the expiration of two years from the date of the conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day, 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 license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of four 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.

(3>) 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 or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation three times within a period of ten 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 been 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 the conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes which license shall be effective for an identical twelve hour period every day 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 license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of eight 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 the terms and conditions as he deems appropriate and necessary.

(3?) 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 or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation four or more times within a period of ten years preceding the date of the commission of the offense for which such person has been convicted, such person's license or right to operate a motor vehicle shall be revoked for the life of such person, and such person shall not 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; provided, however, that such license shall be restored or such right to operate shall be reinstated if the prosecution of such person has been terminated in favor of such person. An aggrieved party may appeal, in accordance with the provisions of chapter thirty A, from any order of the registrar of motor vehicles under the provisions of this section.

SECTION 5. Said subdivision (1) of said section 24 of said chapter 90, as so appearing, is hereby further amended by striking out paragraphs (e), (f) and (g) and inserting in place thereof the following three paragraphs:-

(e) In any prosecution for a violation of paragraph (a), evidence of the percentage, by weight, of alcohol in the defendant's blood at the time of the alleged offense, as shown by chemical test or analysis of his blood or as indicated by a chemical test or analysis of his breath, shall be admissible and deemed relevant to the determination of the question of whether such defendant was at such time under the influence of intoxicating liquor; provided, however, that if such test or analysis was made by or at the direction of a police officer, it was made with the consent of the defendant, the results thereof were made available to him upon his request and the defendant was afforded a reasonable opportunity, at his request and at his expense, to have another such test or analysis made by a person or physician selected by him; and provided, further, that blood shall not be withdrawn from any party for the purpose of such test or analysis except by a physician, registered nurse or certified medical technician. Evidence that the defendant failed or refused to consent to such test or analysis shall not be admissible against him in a civil or criminal proceeding, but shall be admissible in any action by the registrar under paragraph (f) or in any proceedings provided for in section twenty-four N. 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 or would not take such a test; that there may be a number of reasons why such test was not administered; that there shall be no speculation as to the reason for the absence of the 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. If such evidence is that such percentage was five one-hundredths or less, there shall be a permissible inference that such defendant was not under the influence of intoxicating liquor, and he shall be released from custody forthwith, but the officer who placed him under arrest shall not be liable for false arrest if such police officer had reasonable grounds to believe that the person arrested had been operating a motor vehicle upon any such way or place while under the influence of intoxicating liquor, if such evidence is that such percentage was more than five one-hundredths but less than eight one-hundredths there shall be no permissible inference; and if such evidence is that such percentage was eight one-hundredths or more, there shall be a permissible inference that such defendant was under the influence of intoxicating liquor. A certificate, signed and sworn to, by a chemist of the department of public safety or by a chemist of a laboratory certified by said department, which contains the results of an analysis made by such chemist of the percentage of alcohol in such blood shall be prima facie evidence of the percentage of alcohol in such blood.

(f) (1) Whoever operates a motor vehicle upon any way or in any place to which the public has right to access, or upon any way or in any place to which the public has access as invitees or licensees, shall be deemed to have consented to submit to a chemical test or analysis of his breath or blood in the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor; provided, however, that no such person shall be deemed to have consented to a blood test unless such person has been brought for treatment to a medical facility licensed under the provisions of section fifty-one of chapter one hundred and eleven; and provided, further, that no person who is afflicted with hemophilia, diabetes or any other condition requiring the use of anticoagulants shall be deemed to have consented to a withdrawal of blood. Such test shall be administered at the direction of a police officer, as defined in section one of chapter ninety C, having reasonable grounds to believe that the person arrested has been operating a motor vehicle upon such way or place while under the influence of intoxicating liquor. If the person arrested refuses to submit to such test or analysis, after having been informed that his license or permit to operate motor vehicles or right to operate motor vehicles in the commonwealth shall be suspended for at least a period of one hundred and twenty days, but not more than one year for such refusal, no such test or analysis shall be made and he shall have his license or right to operate suspended in accordance with this paragraph for a period of one hundred and twenty days; provided, however, that any person who is under the age of twenty-one or who has been previously convicted of a violation under this section or a like violation by a court of any other jurisdiction within ten years of the date of the charge in question shall have his license or right to operate suspended forthwith for a period of one hundred and eighty days for such refusal; and provided, further, that any person previously convicted two or more times for a violation under this section or a like violation by a court of any other jurisdiction within ten years of the date of the charge in question, shall have his license or right to operate suspended forthwith for a period of one year for such refusal. If a person refuses to take a test under this section, the police officer shall do all of the following:

(i) immediately and on behalf of the registrar take custody of such person's driver license or permit issued by the commonwealth;

(ii) provide such person, on behalf of the registrar, with a written notice of intent to suspend, on forms prepared and provided by the registrar;

(iii) issue to such person, on behalf of the registrar, a temporary driving permit, unless: (1) driving privileges of the person were suspended, revoked, or canceled at the time the person was arrested; (2) the person whose license was taken into custody was operating on an invalid license; (3) the person was not entitled to driving privileges at the time of the arrest for any other reason; or (4) the person holds a license or permit granting driving privileges that was issued by another state or jurisdiction.

The police officer before whom such refusal was made shall immediately prepare a written report of such refusal. Such written report of refusal shall be endorsed by a third person who shall have witnessed such refusal. Each such report shall be made on a form approved by the registrar, and shall be sworn to under the penalties of perjury by the police officer before whom such refusal was made. Each such report shall set forth the grounds for the officer's belief that the person arrested had been operating a motor vehicle on any such way or place while under the influence of intoxicating liquor, and shall state that such person had refused to submit to such chemical test or analysis when requested by such police officer to do so. Each such report shall be endorsed by the police chief, as defined in section one of chapter ninety C, or by the person authorized by him and shall be sent forthwith to the registrar along with the confiscated license or permit and a copy of the notice of intent to suspend.

The license suspension shall become effective fifteen days after the offender has received the notice of intent to suspend from the police officer. No license shall be restored under any circumstances and no restricted or hardship permits shall be issued during the suspension period imposed by this paragraph; provided, however, that the defendant may immediately, upon the entry of a not guilty finding or dismissal of all charges under this section, section twenty-four G or twenty-four L, and in the absence of any other alcohol related charges pending against said defendant, apply for and be immediately granted a hearing before the court which took final action on the charges for the purpose of requesting the restoration of said license. At said hearing, there shall be a rebuttable presumption that said license be restored, unless the commonwealth shall establish, by a fair preponderance of the evidence, that restoration of said license would likely endanger the public safety. In all such instances, the court shall issue written findings of fact with its decision.

The registrar shall provide police departments and agencies with permits for issuance as required by this subparagraph. The registrar shall establish the form and content of permits described in this section as the registrar determines appropriate, but in a manner consistent with this section. A temporary driving permit described in this section shall become effective twelve hours after the stated time of such issuance and shall remain valid until the fifteenth day after the date of arrest; shall be issued without payment fee; and, except as otherwise provided, such permit shall grant the same driving privileges as those granted by the person's license taken into possession under this subparagraph.

(2) If a person's blood alcohol percentage is not less than eight one-hundredths or the person is under twenty-one years of age and his blood alcohol percentage is not less than two one-hundredths, such police officer shall do the following:

(i) immediately and on behalf of the registrar take custody of such person's drivers license or permit issued by the commonwealth;

(ii) provide such person, on behalf of the registrar, with a written notice of intent to suspend, on forms prepared and provided by the registrar;

(iii) issue to such person, on behalf of the registrar, a temporary driving permit, unless: (1) driving privileges of the person were suspended, revoked, or canceled at the time the person was arrested; (2) the person whose license was taken into custody was operating on an invalid license; (3) the person was not entitled to driving privileges at the time of the arrest for any other reason; or (4) the person holds a license or permit granting driving privileges that was issued by another state or jurisdiction;

(iv) immediately report action taken under this paragraph to the registrar. Each such report shall be made on a form approved by the registrar, and shall be sworn to under the penalties of perjury by the police officer. Each such report shall set forth the grounds for the officer's belief that the person arrested has been operating a motor vehicle on any such way or place while under the influence of intoxicating liquor and that said person's blood alcohol percentage was not less than eight one-hundredths or that said person was under twenty-one years of age at the time of the arrest and whose blood alcohol percentage was not less than two one-hundredths. Said report shall also state that the person was administered such a test or analysis, that the operator administering the test or analysis was trained and certified in the administration of such test, that the test was performed in accordance with the 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. Each such report shall be endorsed by the police chief, as defined in section one of chapter ninety C, or by the person authorized by him and shall be sent forthwith to the registrar along with the confiscated license or permit and a copy of the notice of intent to suspend.

The license suspension shall become effective fifteen days after the offender has received the notice of intent to suspend from the police officer. The license to operate a motor vehicle shall remain suspended until the disposition of the offense for which the person is being prosecuted, but in no event shall such suspension pursuant to this subparagraph exceed ninety days.

The registrar shall provide police departments and agencies with permits for issuance as required by this subparagraph. The registrar shall establish the form and content of permits described in this section as the registrar determines appropriate, but in a manner consistent with this section. A temporary driving permit described in this section shall become effective twelve hours after the stated time of such issuance and shall remain valid until the fifteenth day after the date of issuance; shall be issued without payment of any fee; and except as otherwise provided, such permit shall grant the same driving privileges as those granted by the person's license taken into possession under this subparagraph.

(g) Any person whose license, permit or right to operate has been suspended under subparagraph (1) of paragraph (f) shall, within fifteen days of suspension, be entitled to a hearing before the registrar which shall be limited to the following issues: (i) did the police officer have reasonable grounds to believe that such person had been operating a motor vehicle while under the influence of intoxicating liquor upon any way or in any place to which members of the public have a right of access or upon any way to which members of the public have a right of access as invitees or licensees, (ii) was such person placed under arrest, and (iii) did such person refuse to submit to such test or analysis. If, after such hearing, the registrar finds on any one of the said issues in the negative, the registrar shall forthwith reinstate such license, permit or right to operate. The registrar shall create and preserve a record at said hearing for judicial review. Within thirty days of the issuance of the final determination by the registrar following a hearing under this paragraph, a person aggrieved by the determination shall have the right to file a petition in the district court for the judicial district in which the offense occurred for judicial review. The filing of a petition for judicial review shall not stay the revocation or suspension. The filing of a petition for judicial review shall be had as soon as possible following the submission of said request, but not later than thirty days following the submission thereof. Review by the court shall be on the record established at the hearing before the registrar. If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is unsupported by the evidence in the record, the court may reverse the registrar's determination.

Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) 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 in which the underlying charges are pending, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) 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 eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths. If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person's license, permit 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 6. Said section 24 of said chapter 90, as so appearing, is hereby further amended by striking out, in lines 569 to 571, inclusive, the words "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" and inserting in place thereof the following words:- alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense by a court of the commonwealth one or more times within a period of ten.

SECTION 7. Section 24D of said chapter 90, as so appearing, is hereby amended by striking out the first three paragraphs and inserting in place thereof the following two paragraphs:-

Any person convicted of or charged with operating a motor vehicle while under the influence of intoxicating liquor, may if such person consents, be placed on probation for not more than two years and shall, as a condition of probation, be assigned to a driver alcohol education program as provided herein and, if deemed necessary by the court, to an alcohol treatment or rehabilitation program or to both, and such person's license or right to operate shall be suspended for 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 two hundred and ten 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. Such order of probation shall be in addition to any penalties imposed as provided in subparagraph (1) of paragraph (a) of subdivision (1) of section twenty-four and shall be in addition to any requirements imposed as a condition for any suspension of sentence. Said person shall cooperate in an investigation conducted by the probation staff of the court for supervision of cases of operating under the influence of intoxicating liquor in such manner as the commissioner of probation shall determine. A defendant not otherwise prohibited by this section, upon conviction after a trial on the merits, shall be presumed to be an appropriate candidate for the above mentioned programs; provided, however, that a judge who deems that the defendant is not a suitable candidate for said programs shall make such findings in writing.

The provisions of this section shall not, except as otherwise provided herein, apply to any person convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction within a period of ten years preceding the date of the commission of the offense with which he is charged, nor shall the provisions of this section apply to any person who during the events that gave rise to the complaint under paragraph (a) of subdivision (1) of section twenty-four caused serious personal injury to or the death of another person. Any person convicted of or charged with operating a motor vehicle while under the influence of intoxicating liquor, who has been convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a single like offense by a court of the commonwealth or any other jurisdiction more than six years, but less than ten years preceding the date of the commission of the offense with which he is charged may, upon a written finding of fact which shall be made part of the record, that appropriate and adequate treatment is available to such person and the person would benefit from such treatment and the safety of the public would not be endangered, with the person's consent, be placed on probation for not more than two years and shall, as a condition of probation, be assigned to a driver alcohol education program as provided herein, and, if deemed necessary by the court, to an alcohol treatment or education program or both, and the person's drivers license or right to operate a motor vehicle shall be suspended for a period consistent with the provisions of subparagraph (2) of paragraph (c) of subdivision (1) of section twenty-four. Such order of probation shall be in addition to any penalties imposed as provided in subparagraph (1) of paragraph (a) of subdivision (1) of section twenty-four and shall be in addition to any requirements imposed as a condition for any suspension of sentence. Said person shall cooperate in an investigation conducted by the probation staff of the court for supervision of cases of operating under the influence of intoxicating liquor in such manner as the commissioner of probation shall determine. The provisions of this section shall not apply to any person convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense two or more times by a court of the commonwealth or any other jurisdiction within ten years preceding the date of the commission of the offense for which such person has been charged.

SECTION 8. Said section 24D of said chapter 90, as so appearing, is hereby further amended by striking out, in line 106, the words "for the apprehension" and inserting in place thereof the following words:- operated by the secretary of public safety, the alcohol beverage control commission, and the department of public health for the investigation, enforcement.

SECTION 9. Said chapter 90 is hereby further amended by striking out section 24J, as so appearing, and inserting in place thereof the following section:-

Section 24J. In every case of a conviction of or a plea of guilty to a violation of subdivision (1) of section twenty-four involving driving under the influence of intoxicating liquors or a disposition under section twenty-four D, the court shall inquire of the defendant, before sentencing, regarding whether he was served alcohol prior to his violation of said section at an establishment licensed to serve alcohol on the premises and the name and location of said establishment.

Any information so acquired by the court shall be transmitted by the clerk's office to the alcohol beverage control commission, the office of the attorney general, the office of the district attorney for the district in which the establishment is located, and such establishment.

SECTION 10. Said chapter 90 is hereby further amended by striking out section 24N, as so appearing, and inserting in place thereof the following section:-

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, upon the failure of any police officer to suspend or take custody of the drivers license or permit issued by the commonwealth of any such defendant under paragraph (f) of subdivision (1) of section twenty-four, immediately suspend the defendant's license or right to operate a motor vehicle in the following instances: (i) if the prosecutor 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 eight one-hundredths or more, or, relative to any defendant under the age of twenty-one, while the percentage by weight, of alcohol in his blood was two one-hundredths or more, as shown by chemical test or analysis of his blood or breath, and presents written certification of 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 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 or permit issued by the commonwealth 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 or permit 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; or (ii) if the prosecutor makes a prima facie showing at arraignment that said defendant was arrested on the charge of driving a motor vehicle on any such way or place while under the influence of intoxicating liquor, and said defendant refused to submit to a chemical test or analysis of his breath or blood. Upon such a showing and presentation, the judge shall take immediate physical possession of such defendant's license or permit issued by the commonwealth 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 or permit to operate a motor vehicle shall remain suspended for a period of one hundred and twenty days; provided, however, that any person who is under the age of twenty-one or who has been previously convicted of a violation under section twenty-four or a like violation by a court of any other jurisdiction within ten years of the date of the charge in question shall have his license or right to operate suspended forthwith for a period of one hundred and eighty days for such refusal; provided, further, that any person previously convicted two or more times of a violation under section twenty-four of a like violation by a court of any other jurisdiction within ten years of the date of the charge in question, shall have his license or right to operate suspended forthwith for a period of one year for such refusal. No license shall be restored under any circumstances and no restricted or hardship permits shall be issued during the suspension period imposed by this paragraph; provided, however, that the defendant may immediately, upon entry of a not guilty finding or dismissal of all charges under section twenty-four, sections twenty-four G and twenty-four L, and in the absence of any other alcohol related charges pending against said defendant, apply for and be granted a hearing forthwith before the court which shall have entered said finding for the purpose of requesting the restoration of said license. At said hearing, there shall be a rebuttable presumption that said license be restored, unless the commonwealth shall establish, by a fair preponderance of the evidence that restoration of said license would likely endanger the public safety. In all such instances, the court shall issue written findings of fact with its decision.

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 in which the underlying charge is pending, which hearing shall be limited to the following issue: whether a blood test administered pursuant to paragraph (e) 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 eight one-hundredths, or, relative to such person under the age of twenty-one was less than two one-hundredths. If the court finds that such a blood test shows that such percentage was less than eight one-hundredths, or, relative to such person under the age of twenty-one, that such percentage was less than two 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.

Any person whose right to operate has been suspended pursuant to this section on the basis of the failure of such person to submit to a chemical test or analysis of his breath or blood may within ten days of his suspension request a hearing and upon such request shall be entitled to a hearing before the court in which the underlying charges are pending, which hearing shall be limited to the following issues: (1) did the police officer have reasonable grounds to believe that such person had been operating a motor vehicle while under the influence of intoxicating liquor upon any way or in any place to which members of the public have a right of access or upon any way to which members of the public have a right of access as invitees or licensees, (2) was such person placed under arrest, and (3) did such person refuse to submit to such test or analysis. If, after such hearing, the court finds on any one of the said issues in the negative, 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 11. Said chapter 90 is hereby further amended by striking out section 24 O, as so appearing, and inserting in place thereof the following two sections:-

Section 24 O. Upon conviction of any violation of the provisions of this chapter, the defendant shall be provided by the probation office in the court in which said conviction was entered a statement in writing prepared by the secretary of public safety of the statutory provisions that apply to any further violation of this chapter.

Section 24P. Upon evidence a person under the age of twenty-one, after having been charged with any violation under section twenty-four, twenty-four G or twenty-four L, had a blood alcohol percentage of two one-hundredths or greater, or upon evidence that said person refused to submit to a chemical test or analysis of his breath or blood under section twenty-four, notwithstanding the finding upon any such charges, shall have his license or permit to operate suspended by the registrar of motor vehicles for a period of one hundred and eighty days. Said suspension by the registrar shall be in addition to any penalty, license suspension or revocation imposed upon such person by the court as required by section twenty-four, twenty-four G or twenty-four L.

If such person has not been previously charged with any violation under section twenty-four, twenty-four G or twenty-four L, such person shall, if he consents, be assigned to a program specifically designed by the department of public health for the education and treatment of underage drinking drivers; provided, however, that said assignment is not prevented by any finding or disposition upon any charges against said person under said section twenty-four, twenty-four G or twenty-four L. Upon the entry into such program, as specified in this section, or as otherwise required under any disposition pursuant to section twenty-four D, the suspension of license or permit to operate as required by this section shall be waived by the registrar. Upon failure of any such person to successfully complete said program, the registrar shall forthwith suspend said license or permit to operate for said one hundred and eighty day period.

SECTION 12. The first paragraph of section 34A of chapter 138 of the General Laws, as so appearing, is hereby amended by adding the following two sentences:- A conviction of a violation of this section shall be reported forthwith to the registrar of motor vehicles by the court. Upon receipt of such notice the registrar shall thereupon suspend for ninety days the defendant's license or right to operate a motor vehicle.

SECTION 13. Section 34C of said chapter 138, as so appearing, is hereby amended by striking out the last sentence and inserting in place thereof the following sentence:- A conviction of a violation of this section shall be reported forthwith to the registrar of motor vehicles by the court, and said registrar shall thereupon suspend for a period of ninety days the license of such person to operate a motor vehicle.

SECTION 14. The secretary of public safety shall submit a correctional resources impact study to the joint committee on criminal justice, the joint committee on public safety, and the house and senate committees on ways and means, respectively, assessing the effect of this act on current correctional resources. Said secretary shall certify the extent of the impact, if any, and his plans to respond to it, with current correctional resources available to him in the current fiscal year, and for four fiscal years thereafter. The secretary shall certify whether other inmates will be transferred out of jail or prison to absorb the impact of this act. In addition, the secretary shall not make reference, as included in his calculations, estimations or projections to any proposed capital expansion plan contained in any pending legislation. The secretary shall submit said report no later than December thirty-first, nineteen hundred and ninety-four.

SECTION 15. The chief justice for administration and management of the trial court, the Massachusetts sentencing commission and the secretary of public safety are hereby authorized and directed to make an investigation and study relative to evaluating the effectiveness of this act and shall file a report with the clerk of the house of representatives who shall forward the same to the house and senate committees on ways and means, no earlier than twelve months but no later than twenty-four months after the effective date of this act. Said investigation and study shall include:

(a) whether the act shows a quantifiable improvement relative to motor vehicle accidents whose proximate cause is the operator being statutorily under the influence of intoxicating liquor; (b) whether a reduction from ten one-hundredths to eight one-hundredths alcohol content to attach the presumption of operating under the influence of intoxicating liquor creates any statistical significance concerning property damage or personal injury motor vehicle accidents on the highways of the commonwealth; (c) whether the sanctions imposed on minors operating while generating a two one-hundredths blood alcohol content measurably reduces underage drinking and driving in the commonwealth; (d) effectiveness and costs arising from the imposition of mandatory minimum sentencing; (e) the effectiveness and costs of alcohol or controlled substance education, treatment or rehabilitation programs to reduce recidivism of driving under the influence; and (f) the additional costs, if any, that the lower standard of blood alcohol content level proscribed in this act will have on the law enforcement community with regard to increased use of roadblocks, as well as the additional costs to the judiciary with regard to the prosecution of individuals arrested under the said lower blood alcohol content level.

SECTION 16. Notwithstanding the provisions of paragraph (f) of subdivision (1) of section twenty-four of chapter ninety of the General Laws, inserted by section five of this act, to the contrary, no police officer shall take custody of a person's driver's license or permit, nor provide a written notice of intent to suspend nor issue a temporary driving permit concerning any violation under said section twenty-four which shall occur within thirty days of the effective date of section five of this act; provided, however, that such person's license or permit shall be taken by the court in accordance with section twenty-four N of said chapter ninety at the time of the person's arraignment.