Articles Posted in Melanie’s Law

Our Supreme Judicial Court has recognized that the legislature could not have intended to make it a crime to drive after unknowingly being “slipped” drugs or alcohol. Where intoxication is an element of a crime, as it is in operating under the influence (OUI / DUI) cases, the government has the burden of proving voluntary intoxication, even where the degree of the intoxication isn’t enough to create a basis for inferring lack of criminal responsibility. As such, Massachusetts defendants in operating under the influence cases can, but rarely do, raise “involuntary intoxication” as a defense. One example of involuntary intoxication would be a situation in which a defendant was compelled against his or her will to ingest alcohol or drugs. Another example would be a situation in which a defendant took prescription medication as instructed but, nevertheless, ended up suffering intoxicating effects.

As a Massachusetts OUI defense attorney, I find the concept of involuntary intoxication interesting in the context of those who suffer from alcoholism. In other words, should alcoholism be a defense or an affirmative defense to drunk-driving charges because the disease renders alcohol consumption involuntary?

Steven S. Nemerson’s Cardozo Law Review article Alcoholism, Intoxication, and the Criminal Law raises several points worth considering. Nemerson asserts, and few would dispute, that alcoholism is a disease. The disease causes those afflicted to lose control when it comes to alcohol consumption. Because alcoholics suffer from an inability to abstain from drinking, drinking is not a voluntary action for those affected by the disease. Still, Nemerson concludes that protecting the safety of innocent persons, even from the morally blameless, is more important and desirable than protecting the rights of those who involuntarily commit crimes. He does, however, think that alcoholism should be an available affirmative defense.

Here in Massachusetts, the standard for lack of criminal responsibility due to a mental disease or defect is set forth in a case named Commonwealth v. McHoul. Our courts hold that neither alcoholism nor drug addiction count as a “disease of defect” which, alone, could trigger McHoul. However, the SJC has said that the government, in the context of OUI cases, has to prove both intoxication and that the intoxication was voluntary, regardless of whether there is a triggering basis for McHoul. This is because proof of intoxication is an express element in drunk-driving cases. Thus, even if alcoholism is not a “disease” for McHoul purposes, it could, presumably, still be something for a jury to consider in assessing whether the government has met its burden of proving that intoxication was voluntary. Such a defense strategy would, still, be very risky, since many might not consider an alcoholic’s consumption of alcohol “involuntary” within the usual sense of the word.

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August 8, 2011, when the stocks plunged dramatically, marked the most severe decline since the fall of 2008. Economists discussed the possibility of yet another recession, which would hurt even worse because of the nation’s weak starting point, CNNMoney reported on August 10, 2011. Readers may be asking what relevance this has to Massachusetts OUI/DUI/drunk driving cases, and the answer is in the following: While drunk drivers come from every walk of life, studies also show that, in addition to various other factors, drunk drivers are more likely to be unemployed (or working class). This post will touch upon the relationship between unemployment and problem drinking and the ramifications for Massachusetts operating under the influence cases.

Certain theories of alcoholism and problem drinking focus on stress levels and socio-environmental factors. Under such theories, drinking problems develop as mechanisms for coping with stressful circumstances, such as unemployment and financial strain. Researchers have had difficulty, however, in determining the causal relationship between unemployment and alcohol abuse. In other words, it seems to be unclear whether unemployment leads to alcohol abuse or whether alcohol abuse leads to unemployment. If the former is more accurate and unemployment creates an increase in problem drinking, then we would expect to see more Massachusetts OUI arrests and prosecutions if we are to be thrown into another financial crisis.

Massachusetts drunk-driving arrests have decreased in the past five years, the Boston Herald reported on July 20, 2011. However, that article indicated that last year there were 14,834 OUI arrests, down from 17,804 OUI arrests in 2008 and 15,850 in 2006. This is worth noting because 2008 was the height of the economic recession, and according to these statistics, it was also a high point in OUI arrests. Obviously, on the other hand, that there were more arrests does not necessarily mean that there was more drunk driving in 2008. For instance, it could mean that there were simply more police patrols for drunk driving.

As mentioned above, it is possible that unemployment may be a cause of “problem drinking.” This raises another important OUI issue. It is known that a large majority of repeat OUI offenders are “problem drinkers.” Here in Massachusetts, repeat OUI/DUI/DWI/drunk driving offenders are subject to mandatory minimum sentences, and judges are forced to take a broad-brush approach without consideration of the defendant’s situation or individual traits. Anyone facing a mandatory minimum sentence should be aware that the quality of one’s defense attorney will be critical.

While the link between financial crises and OUI arrests and prosecutions may be tenuous, it is always important to consider the effects of the current economic, social and political backdrop. This is largely because developments in all areas of the law, including OUI/DUI/DWI law, do not happen in a vacuum and because courts, police, prosecutors, and lawmakers all tend to take the temperature of the day.

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Just over a month after the high profile acquittal of Casey Anthony, Caylee Anthony’s grandparents and crowds of others memorialized what would have been the toddler’s birthday, CBS reported on August 10, 2011. The tribute to the child’s short life seems to have spurred renewed interest in “Caylee’s Law,” a proposed bill that would make a parents’ failure to report a child missing or dead within 24 hours or 1 hour, respectively, a felony. The widespread support for “Caylee’s Law” should prompt consideration of reactive legislation named after children who have suffered tragic deaths, such as Massachusetts’ own “Melanie’s Law,” which was passed in 2005 to enhance punishments for Massachusetts OUI/DUI/drunk driving offenders.

“Melanie’s Law” was named after Melanie Powell, a 13-year-old who, while walking to a beach in Marshfield, was killed by a drunk driver. The driver, who had a prior OUI conviction, was convicted of motor vehicle homicide and drunk driving. She was sentenced to 2 ½ years in state prison and two years of post-release probation. Melanie’s parents and grandfather then started a push for tougher drunk driving legislation. “Melanie’s Law,” which came in the wake of public anger , was the result.

Laws fueled by public outcry and named after deceased children tend to be counterproductive and poorly-reasoned. Too often, consideration of the policy behind such laws is lacking at best. These kinds of laws are frequently designed to appease an outraged public , and bad knee-jerk laws are passed in an emotional haze. Still, some legislators use these “tough” laws as a tool to garner support and win votes. Attaching the name of a child victim to proposed legislation is another powerful tool for legislators championing such laws. This tactic creates the perception that a vote against the law is a vote against the child, curbing opposition.

There are several examples of laws named after young victims, particularly in the area of sex crimes. The Jacob Wetterling Act, the Adam Walsh Act, and Dru’s Law are just a few of the many. While most would agree that prevention of sex crimes is an important goal, many have criticized these laws because they do not do much in terms of achieving that purpose. Perhaps the most common criticism is that blanket sex offender registries make it difficult to differentiate between dangerous convicted criminals and those convicted of sex crimes in relatively inoffensive circumstances, such as a teenager who had consensual sex with his barely underage teenager girlfriend. One can draw parallels between this type of indiscriminate grouping and the way in which Melanie’s Law strips the courts of discretion in certain cases and closes out consideration of the unique qualities of OUI defendants.

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In recent years, punishments for drunk-driving offenses have become ever more severe in Massachusetts and throughout the country. Laws that provide for tough drunk driving penalties, such as Melanie’s Law in Massachusetts, are very popular politically, perhaps because many unthinkingly take the view that severe sentences will reduce the number of deaths and injuries that are caused by drinking and driving. However, a much more thoughtful consideration of penal theory is necessary to answer the question, “How much punishment is appropriate?”
There are three main theories of criminal punishment: deterrence, retribution, and rehabilitation. This blog post addresses deterrence and retribution in terms of increasingly severe drunk driving penalties. While rehabilitation would perhaps be the most effective approach to drunk driving, particularly when offenders have problems with alcohol, current laws leave little opportunity for rehabilitation analysis, especially with respect to penalties for second and subsequent offenses.

Deterrence theory can be broken down into two parts: general deterrence and individual deterrence. The reasoning behind general deterrence is as follows: if people know that punishment will follow the commission of a given crime, then people will be less likely to commit that crime. In other words, general deterrence serves to provide self-interested persons with reasons to not commit crimes. Individual deterrence is the idea that once a person is punished for a crime, he or she will be less likely to offend again for fear of being punished again. With regard to general deterrence, increasing drunk driving penalties , standing alone, is of little value because it is known that the perceived risk of detection and arrest is of much more consequence than severity of punishment. Considering individual deterrence, the problem with simply imposing harsher penalties is that the majority of OUI/DUI-related fatalities and injuries are caused by problem drinkers struggling with alcohol addiction, and it is more than difficult to deter those with such problems. Moreover, this theory hinges on the concept of the rational thinker, but those who are truly drunk are presumably not thinking entirely rationally. Statistics do show that no matter how severe the potential punishments, drunk driving continues.

Retribution is currently the leading justification for criminal punishment, and it has been on the rise since the 1970s. The idea behind retributivism is essentially “an eye for an eye.” While there are different camps within retributivism (negative, positive, assaultive), this is a somewhat simple approach to punishment, with the basic premise being that society is justified in punishing criminal offenders because the offenders have earned it. In the context of strict drunk driving statutes, this theory does not work because there is no black and white. Anyone with a blood alcohol concentration of .08% or higher is treated as a drunk driver, and while that is convenient, not every person is the “average person” in terms of physiology. Drunk -driving laws leave room for punishing those who were not drunk, and sometimes, for punishing those who were not even really driving. Thus, a theory based entirely on moral culpability falls apart.

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