Massachusetts Drunken Driving Law Disgrace

DRUNKEN DRIVING DISGRACE - Flunking the Test: Mass. Policy is Nation’s Most Lax

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‘‘The officer can actually, if need be, restrain the person physically while the blood is being withdrawn,’’ said Earl Sweeney, assistant commissioner of public safety in New Hampshire.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

Tags: DUI News |  Massachusetts DUI