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withdrawn,’’ said Earl Sweeney,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

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

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

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

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

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

‘‘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

Copyright 2006 The Patriot Ledger Transmitted Saturday, November 18,

DUI Attorneys |