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I have been dealing with the issue of whether a CWOF counts as a prior conviction with respect to breathalyzer refusal suspensions for years, and I was pleased to have written the Amicus Brief in the case of Souza v. Registrar. The court’s ruling vindicated the argument that I had been making at the Board of Appeal for years.
The media has reported that the SJC’s decision in Souza v. Registrar as exposing a “loophole” in Melanie’s Law. However, there was no “loophole.” Instead, the highest court in Massachusetts, the Supreme Judicial Court, determined that the Legislature did not intend for CWOFs in prior DUI cases to count towards breathalyzer refusal suspensions.
On October 28, 2005, “Melanie’s Law,” Chapter 122 of the Acts of 2005 became effective. It substantially increased the penalties for Operating Under the Influence by, inter alia, increasing the chemical test refusal suspension period from one year to three years for those who refuse a chemical test with a prior conviction. It also increased, from 3 years to 5 years, the penalties for those who refuse with two prior OUI convictions. It imposed a lifetime revocation for CTRs for those with 3 prior OUI convictions. Further, it eliminated the ability to obtain a fifteen-day temporary license and imposed the CTR suspensions immediately upon refusal. One thing it did not do was make CWOFs count as convictions to increase CTR suspensions.
Webster’s dictionary defines a “loophole” as “an ambiguity or omission in the text through which the intent of a statute, contract, or obligation may be evaded.” There was no loophole. The Legislature did not intend for CWOFs to count. If it wanted prior drunk driving cases which were continued without findings (CWOF’ed) to increase the length of breath test refusal suspensions, it would have said so. Therefore, there was no loophole. The law was written exactly how the Legislature intended.
Nevertheless, the Senate has now decided that CWOFs should count and new legislation is in the works to change the law. This will soon be presented to the Governor for his signature and it is likely to pass. In the meantime, the Court’s decision in Souza v. Registrar of Motor Vehicles is the law and prior DUI cases which were CWOF’ed should not be counted towards breathalzyer refusal suspensions.