OUI Loophole Closed

Change in OUI Law Closed ‘Huge Loophole’

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

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

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

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

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

“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

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

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 [email protected].

Souce: http://www.lowellsun.com

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