GloucesterTimes.com, Gloucester, MA

May 21, 2012

Tarr, allies target Melanie's Law loophole

By Times Staff

Less than a week after a state Supreme Judicial Court ruling struck down what lawmakers say was a key provision of the so-called Melanie's Law targeting drunken drivers, state Senate Minority Leader Bruce Tarr, R-Gloucester, and his colleagues are trying to move quickly to close a perceived loophole in the legislation.

Tarr, Senate Minority Whip Richard J. Ross, R-Wrentham, and Sen. Michael R. Knapik, R-Westfield — the ranking Republican on the Senate Ways and Means Committee — have filed an amendment to the state's fiscal 2013 budget proposal that would ensure that cases involving a continuation without a finding but where sufficient facts are admitted for a conviction are treated as a conviction for the purpose of establishing a repeat offender status.

In a decision issued by the high court last week, Justice Margot Botsford and her colleagues reversed the license suspension of Paul J. Souza by the Registry of Motor Vehicles based on a drunken driving case in 2010 in the south0central Massachusetts town of Norton, where he refused to take a chemical breath test.

Souza had previously refused a Breathalyzer test in a 1997 case which was continued without a finding after Souza had admitted to sufficient facts for a finding of guilty.

Under Melanie's Law, which draws its name from 13-year-old Melanie Powell of Marshfield, who was struck and killed by a repeat drunk driver as she crossed a street in 2003, Souza's second refusal would normally trigger a license suspension of three years, and the Registry took that action. Through last week's decision, the Supreme Judicial Court countermanded that decision because of the continuation of his first case.

In the court's decision, Botsford wrote, "Even if we were to consider the purpose of Melanie's Law, we are not at liberty to construe the statute in a manner that might advance its purpose but contravenes the actual language chosen by the Legislature."

The amendment filed by Tarr and the Republicans responds directly to this problem by broadening the definition of a conviction to include cases where a continuation without a finding occurs, but there is an admission of sufficient facts for a conviction. Beyond the Legislature, the law has consistently drawn support from advocacy groups.

Ann Albertson, for example, worked extensively with Tarr to get Melanie's Law passed. Her daughter, Heather, a 25-year-old Gloucester native, was killed by a hit-and-run drunk driver in Beverly in 2005.

"(The) decision by the Supreme Judicial Court to strike down certain increased penalties for those operating a vehicle while under the influence of alcohol is deeply concerning and undermines the effectiveness of a major law that protects our public safety," Tarr said. "I'm extremely proud of the good work the Legislature did in 2005 implementing Melanie's Law to toughen the consequences for those who choose to drive drunk...

"Clearly the court's decision begs a direct response from the Legislature, and our proposed amendment to the budget provides it," said Tarr. "This correction is needed now to restore the strength of Melanie's Law, which depends on the proper identification of prior drunk driving incidents."

Tarr noted that the amendment was proposed to the state budget because "we need to act quickly to protect public safety, and the budget is the first available option to do so.".

Debate on the budget and its amendments is slated to begin Wednesday morning.