Police stopped Winsky and detected alcohol. He submitted to a breath test which resulted in a blood alcohol content of .23%, nearly three times the legal limit for drunk driving in Massachusetts.

Because Winsky was in the passenger seat, though with secondary vehicle controls, he was not arrested, but rather summoned to appear in court for operating a vehicle under the influence of alcohol in Massachusetts. He also did not have his license suspended though he is not permitted to teach driving for the moment.

Winsky entered a plea of not guilty to the charge of Massachusetts DUI. Students in the vehicle at the time say that Winsky did not appear intoxicated and said he was sipping cough syrup, which would have elevated the breath test results.

If you have been arrested for DUI/OVI in Massachsetts, you will need to hire a DUI Attorney in Massachusetts.

Northborough Police Officer James F. Scesny was injured in an accident in May 2007 where he struck a telephone pole with his pickup truck around 2:00 am. Officers from the Clinton Police Department on the scene reported that Scesny smelled of alcohol and slurred his words. Scesny, 38, was taken a local hospital for treatment, where staff drew a blood sample. When testing for blood alcohol content was mentioned, he indicated that he wanted to consider the action and consult with an criminal defense attorney. The sample was not only taken, it was tested for alcohol revealing a BAC more than twice the legal limit for being charged with OUI in Massachusetts.

During his trial for Massachusetts OUI/DUI, Scesny’s DUI lawyer argued that his client did not voluntarily consent to a blood test. In addition, federal medical privacy laws prohibited disclosure of the result of any testing. The District Court judge agreed and barred introduction of the blood test results as evidence. Then citing insufficient evidence to sustain a conviction for drunk driving in Massachusetts, the judge dismissed the DUI charge against Scesny.

Scesny had paid a fine for negligent driving and he hopes to be able to return to the Northborough police force soon.

The issue of taking blood samples in cases involving suspicion of drinking and driving has been addressed in several ways across the United States. Texas has authorized the drawing of blood by force if driving while intoxicated is alleged. A New Jersey appellate court ruling permits taking blood by extreme force. A Minnesota court has ruled that a judicial warrant is required before testing blood for alcohol.

Are you looking for a Massachusetts OUI Attorney?

LOWELL -- When John Miskell Jr. was charged in June for his eighth drunken-driving offense, his past came crashing back to haunt him thanks to a little-known change in the drunk-driving laws.

Under the old law, nicknamed the "Look Back" law, prosecutors were only allowed to charge repeat drunken drivers with operating-under-the-influence offenses that occurred within the past 10 years.

Miskell, 49, of Lowell, wracked up a string of six drunken-driving convictions between 1979 and 1985, more than 20 years ago. His last conviction was in 1997, within the 10-year limit, but none of the other six prior convictions would have counted under the old law.

Instead of being charged with his eighth OUI offense and facing a possible stint in state prison if convicted, Miskell would have been charged with only his second offense and facing only a short jail sentence.

But under the revision made to the law in November 2002, prosecutors are allowed to "look back" at all of the defendant's prior drunken-driving convictions.

Prosecutors applaud the revision, while one of the state's prominent lawyers, Stephen L. Jones of Norwell, who specializes in drunken-driving cases, says it's "very dangerous."

Jones noted that an eight-time drunken-driving charge is "rare," and laws shouldn't be changed for rare cases. He said he can count on one hand the number of six-time drunken drivers he has represented over the years.

But attorney Andrea Nardone, of the Massachusetts District Attorneys Association, said since the change in the law, prosecutors are now seeing offenders with eight to 11 past convictions, a true picture of the person's past convictions.

"It's chilling," she said.

The revision in the law closed a "huge loophole" that now penalizes the chronic repeat drunken driver, she said.

Miskell has drunken-driving convictions in 1979, 1980 (two), and single convictions in 1982, 1984 and 1985. The last drunken-driving entry on his record was in 1997 until his arrest on June 10, when a Lawton Street resident called Lowell police to report a man appeared drunk at his door asking for help.

When police arrived at 6:10 p.m., Miskell was behind the wheel of his running car, which was parked in the middle of an intersection. He admitted to having a few drinks, then failed a number of field sobriety tests. Police found a half-empty bottle of peppermint schnapps in his car.

Miskell is being held on $5,000 cash bail after pleading innocent in Lowell Superior Court earlier this month to his eighth OUI offense.

Jones said the "lifetime look back" penalizes people who were convicted as teenagers, making them pay the price 20 years later when those convictions are resurrected.

"You can get three OUI convictions in the '80s and then, 25 years later, you get another one, all of a sudden, you're a felon," Jones said.

"These are average people who need a license to work. Now they can't drive, they lose their jobs and maybe their house," he added. But Nardone said there is still a loophole in the law that allows a "one-time look back" for a person whose first drunk-driving charge as a teenager was continued without a finding, but gets arrested again years later as an adult. If the person has no other offenses, then he or she is entitled to be charged as a first offender, she said.

"If you are really an 18-year-old when you get your first drunken-driving arrest and then go to a Christmas party 12 years later and get arrested again, you can be treated like it's your first time," she said.

Cases involving someone who has three or fewer drunken-driving convictions will often stay in district court, where fines and jail sentences are imposed.

A first OUI offense calls for a fine of not less than $500 and not more $5,000, or a maximum jail term of 2 1/2 years or both a fine and imprisonment.

But someone charged with a fourth OUI offense will likely end up in superior court, where judges have the option of imposing state prison sentences.

A conviction on a fourth OUI offense or higher involves a fine of not less than $2,000 or more than $50,000, and a jail term of not less than 2 1/2 years, or a fine (the same amount), and not less than 2 1/2 years and not to exceed five years in state prison.

But even though the law allows a person to be charged with all prior offenses, proving those past drunken-driving convictions can be a problem, Nardone said.

"It's almost impossible to prove subsequent offenses that go back to the 1970s," she said.

The law requires that a prosecutor prove by photos, fingerprints or live witnesses that the person being charged in 2006 is the same person who was charged in 1976.

"The records are just not there," Nardone said.

As a result, someone with eight drunken-driving convictions may actually only be sentenced as a three-time offender because the other convictions can't be proven.

But the actual number of previous offenses can be taken into account by the judge at sentencing.

Jones noted, "We should be more concerned with treatment and monitoring these people than incarceration.

"Most of these people are good people who've made a mistake," he added. "We've lost sight of what's a crime and what isn't. ... The pendulum has swung too far."

Lisa Redmond's e-mail address is lredmond@lowellsun.com.

Souce: http://www.lowellsun.com

Boston, MA - A new drunk driving law in Massachusetts will aid prosecutors in punishing drunk drivers with repeated convictions. Under the new law, prosecutors will use certified court records in order to prove prior drunk driving incidents. The law is named "Melanie's law" after the 13-year-old Melanie Powell, who was killed in an accident caused by a repeat drunk driver two years ago. With Melanie's law, repeat offenders must utilize an ignition interlock device, which connects a Breathalyzer to the ignition of their car. In order to turn the car on, they must measure their blood alcohol content.

New drunk driving crimes have been established under Melanies' law: loaning a car to someone who is clearly drunk; driving under the influence with a child under the age of 14; and manslaughter caused by drunk driving. Motor vehicle manslaughter now carries a mandatory sentence of five years, doubled from two-and-a-half years.

Melanie Powell's family is proud that the new law has gone into affect. Powell's grandfather, Ron Bersani, said, "We'll never know how many lives Melanie's Law will save, but we have faith it will be many, so today, we thank you, Melanie."

The house and senate approved a weaker version of the bill last week, which created some backlash from the governor and others. On Friday, lawmakers voted to put the tougher punishments back into the legislation.

October 29, 2005

Also See:

• Massachusetts Toughens OUI Penalties

By SUE REINERT and JULIE JETTE The Patriot Ledger

Massachusetts has no law requiring alcohol testing, but five other states do. Drivers involved in fatal accidents in New Hampshire have no right to refuse blood-alcohol tests if they’re suspected of causing the crash.

‘‘The officer can actually, if need be, restrain the person physically while the blood is being withdrawn,’’ said Earl Sweeney, assistant commissioner of public safety in New Hampshire.

Maine has the same policy, but it applies to all fatal accidents regardless of who’s at fault.

‘‘We test anybody in a serious accident where death occurs or is likely to occur,’’ said Kennebec County District Attorney Evert Fowle, head of the Maine Prosecutors Association. ‘‘It’s certainly called for by the law, and we do it.’’

Maine tests 77 percent of drivers involved in fatal crashes, second only to South Carolina’s 94 percent. New Hampshire tested 32 percent, slightly above the national average.

But in Massachusetts, police can ask drivers to take a test only after they’ve been arrested for drunk driving. Here, the number tested is less than 2 percent. No other state tests so few drivers.

Massachusetts has no law requiring alcohol testing. Police can only ask drivers to take a blood or breath test after they have been arrested for drunken driving.

That’s not the way in works in states where testing is mandatory.

Fowle, the Kennebec County prosecutor, said the Maine law has survived legal challenges because police must have probable cause that a person was drunk before test results will be admitted in court.

Massachusetts leaves testing decisions completely up to police officers. Drivers can lose their license for life for refusing a test, but some are never asked.

On Halloween night, for example, five teenagers were injured in Quincy when a car driven by a 17-year-old crashed through a fence, hit a tree and rolled over. Beer cans surrounded the overturned car when police arrived.

Capt. John Dougan said the officer who responded to the accident reported that the driver appeared to be sober and did not test her.

As an under-18 driver, she was not allowed to have any alcohol in her system. If she had refused a test, she would have lost her license for four years.

Legal and practical barriers also impede testing in Massachusetts.

Many surviving drivers end up in the emergency room. Police officers do not test injured drivers, and prosecutors must seek medical records in court.

It’s unclear if an officer can ask a hospital to test a patient.

Andrea Nardone, spokeswoman for the Massachusetts District Attorney’s Association, said police can never request a blood test. State Police Trooper Stephen Mullaney said police can request a test for a person who has been arrested.

Hospitals are sometimes reluctant to test because some health insurance policies don’t cover treatment for intoxicated patients.

Liability insurance does not cover people who drive drunk. In that case, a victim cannot collect on the driver’s insurance, but must instead sue the person, who often lacks assets as well as insurance.

In another hurdle for testing, not all police cruisers carry the equipment.

Despite the obstacles, advocates for tougher drunken driving laws strongly support mandatory testing.

‘‘The more you test the more opportunity to deter drunk driving,’’ said David Deiuliis, spokesman for the Massachusetts chapter of Mothers Against Drunk Driving.

‘‘It sends a message to the public that if you choose to drink and get behind the wheel of a car, there will be enforcement,’’ he said.

Copyright 2006 The Patriot Ledger Transmitted Saturday, November 18, 2006
http://ledger.southofboston.com

Boston, MA--A new, comprehensive drunk driving law that will make punishment for repeat offenders of drunk driving offenses took effect on October 28, 2005. State Rep. William C. Galvin, D-Canton, stated, "Not only do these laws work to punish those who are guilty of repeat drunk driving offenses but they also work as a deterrent measure."

The new law, called "Melanie's Law" after a young girl who was killed in a drunk driving accident, includes numerous provisions. A new offense charges drunken drivers for operating a vehicle with a child under the age of 14. Anyone with a blood alcohol level of .15 or higher must attend an alcohol assessment program. The penalties for knowingly allowing someone to use an automobile, though he or she has a suspended license from drunk driving, have increased to a fine of $500 for the first offense, and a fine of $1,000 and also possibly one year in jail for the second offense.

Mandatory sentences have become stricter. The mandatory sentence for a drunk driver who convicts manslaughter is now doubled. A new mandatory sentence of one year in prison will be applied to those driving under the influence with a suspended license.

Prosecutors can use original court papers and certified information of a defendant's prior life history from certain records for a previous OUI. These documents will serve as complete evidence, and no testimony or additional evidence will be necessary to prove authenticity.

Repeat offenders will need to operate cars with ignition interlock devices that force them to measure their blood alcohol level before being able to turn on the ignition. Tampering with the device or driving a car without the interlock devices will serve time in prison.

License suspension procedures will be more severe with first offenders having suspended licenses for 15 years, up from 10 years. Second-time offenders of OUI Motor Vehicle Homicide will have their licenses suspended for life. Anyone refusing to take a Breathalyzer test will have his or her license suspended for 180 days, but if an accident results in death or injury of another person and the driver refuses the Breathalyzer test, a 10-year suspension will result. Refusal with previous OUI violations or convictions will result in license suspension, and those with three previous violations will have lifetime license suspension. Those who refuse the Breathalyzer test will also have their cars impounded for 24 hours.

November 18, 2005

Also See:

• Melanie's Law Targets Repeat Drunk Drivers

BOSTON -- The number of repeat drunken driving arrests in Massachusetts has dropped 44 percent in the two months since lawmakers passed Melanie's law, a tough new measure aimed at habitual offenders.

In the two months since the law passed, 1,051 repeat offenders were charged with drunken driving. That's compared to 1,889 during the same period a year before, according to statistics from the state Registry of Motor Vehicles.

Advocates of the law said they were encouraged by the early results, though they emphasized the numbers reflect just a short period of time.

Ron Bersani, grandfather of Melanie Powell, for whom the law was named, said he hopes the drop shows that people are "smartening up" about the affects of drunken driving. Powell was a 13-year-old from Marshfield who was killed by a repeat drunken driver.

"I suspect there are a lot of people now who have been pulled over once or twice who became very, very well aware of the new law and saw the incredible ramifications," Bersani told The Boston Globe.

The new law, enacted Oct. 28, mandates a year in prison for someone who drives with a suspended license. It doubles to a year the waiting period for second-time offenders to apply for hardship licenses to get to work. If a driver already convicted of one drunken driving charge declines blood-alcohol tests on a second charge, his or her license is suspended for three years. Drivers who decline the test after fatal accidents would lose their licenses for life, if convicted in the accident.

And starting Tuesday, repeat offenders who want their licenses restored will have to blow into a device that prevents the ignition from starting if any alcohol is detected on their breath. The offenders must use the device for two years.

Though repeat drunken driving arrests have dropped, the number of drunken driving offenses overall has changed little in the last two months.

Since the law took effect, 2,215 Massachusetts motorists have been arrested on drunken driving charges. That's down less than 2 percent from the same period last year, according to Registry data.

Last year, 203 people were killed in alcohol-related accidents in Massachusetts, 43 percent of all vehicle-related fatalities, according to the National Highway Traffic Safety Administration.

SOURCE: Boston News

Massachusetts currently has a relatively low drunk-driving fatality rate. Statistics show 2.34 deaths per 100,000 drivers, compared to 5.31 deaths per 100,000 drivers in states where wine and beer are sold by food stores.

The ad campaign initiated by liquor wholesalers and package stores implies that the current law prohibiting wine sales at food stores is the reason for the low fatality rates. The liquor industry effort has the support of more than 25 police chiefs and the State Police
Association of Massachusetts.

Supermarkets have countered that the existing law limits the number of liquor licenses thus giving liquor stores a virtual monopoly.

There is no evidence that the selling of wine at food stores contributes to an increase in drunk driving fatalities. National
Highway Traffic Safety Administration statistics show that Arkansas, North Dakota, Oklahoma and Tennessee, which prohibit wine sales in food stores, have a higher drunk-driving fatality rate than the average of the 34 states that do permit wine sales.

The 34 states with wine sales also allow food stores to sell beer and sometimes even hard liquor, which are more likely to contribute to alcohol related accidents. Mothers Against Drunk Driving points out that beer and hard liquor are more likely to be abused by drivers than wine.

MADD prefers not to take a position on alcohol licensing legislation and it has remained neutral on the ballot issue. The organization
states that the low fatality rate in Massachusetts can be attributed to reasons other than whether food stores sell wine. They cite the fact that drivers in the state tend to drive slower and that they receive better emergency response and health care when involved in an accident. Studies also show that higher education levels and financial status result in fewer drunk drivers.

Approval of the ballot issue would authorize the creation of a new ‘wine-at-food-store’ license. Each municipality would have the option of awarding five licenses, and towns with more than 5,000 residents could award another license for each additional 5,000 residents.