Concerned about acquittal numbers in criminal trials for operating a motor vehicle under the influence of alcohol, the Massachusetts Supreme Judicial Court commissioned a report to identify issues related to this perceived phenomenon. The report is thorough and explanatory. It seems that the primary reasons for high acquittal rates have nothing to do with corruption within the system, but rather weak cases for the prosecution combined with defense attorney operating under the influence specialization. This comes as no surprise as a quick search of "oui" or "operating under the influence" does not return statistics on deaths or accidents, it yields names of lawyers holding themselves out as skilled in this type of defense alone.
But, one surprising outcome of the report was included in its four recommendations, three of which are unobjectionable on any level as they tend more toward fairness in the proceedings and the ability of the fact finder to ascertain the truth of the event. But, one recommendation (which, the Supreme Judicial Court admits would require legislative action) is to amend G.L. c. 90 sec. 24(1)(f)(1) to deny the restoration of a driver's license, suspended upon refusal to take a breathalyzer test, regardless of the outcome of the case. Assuming the driver has the right to refuse the test (knowing that his or her license will be suspended automatically for that refusal), why shouldn't the privilege of driving be restored immediately upon a determination, as outlined in the statute, within 15 days of offense if the officer did not have probable cause to stop the person or, certainly upon acquittal or dismissal of the case? The minimum suspension of a driver's license for refusing to take a breathalyzer test is six months.
Breathalyzer tests may not be consistent or reliable; results may be challenged effectively at trial. But, there is a presumption of guilt with a reading of 0.08 or higher. Query the purpose of the law: to prevent erratic driving due to the influence of drugs or alcohol. A sleepy or elderly or newly licensed or distracted driver may be more dangerous than one who has a high tolerance for alcohol; but if they are stopped for another reason, their licenses will not be suspended. The suggestion by the otherwise thorough and compelling report to suspend people's driver's licenses for a minimum of six months, whether innocent or guilty of a specific offense, or whether there is even probable cause to arrest someone is an invitation for abuse by the police as well as a swift slide down a slippery slope.
It is reasonable to place a minimal penalty on the refusal to submit to a breathalyzer (and query whether the refusal alone suggests a higher brain functioning and reaction time than one who submits). However, the statutory suspensions are lengthy and can be burdensome to individuals who depend on cars for their livelihood. Further, mass transit options in some parts of the state are non existent and even if one has a bicycle and the ability to ride, winter is cold in Massachusetts. A rule change may result in an innocent person who was not impaired but refused the breathalyzer for any one of a number of legitimate reasons to be acquitted of the offense but possibly lose her job and her ability to manage her life. That seems extreme.
Putting aside the overdependence we have on cars and putting aside that there are additional options and putting aside that driving is a privilege and not a right - all legitimate, but irrelevant, issues. The question is what penalty do we assign to the refusal to submit to a potentially faulty test, the refusal of which is not admissible evidence in a court of law, when the government is incapable of proving guilt beyond a reasonable doubt? The statute itself states that by getting behind the wheel all drivers consent to this test - the individual who refuses negates this presumed consent and sacrifices the loss of a license for a short period of time.
However, the potential for restoration of rights necessarily advances the case more quickly through the courts with the potential to clear the docket. The knowledge that a mere arrest - even one without probable cause - would result in a loss of license regardless of outcome relegates the case to a low priority for both parties resulting in even further clogged court dockets. Such a determination suggests a poor example of due process and fair play, the very attributes of government that prompt apathy and disaffection, not responsible citizenship. And, to what end?
Collateral consequences are serious matters not just to defendants, but to justice itself. This is not to say that driving a car or the deprivation of that privilege is anything close to being deported (as in Padilla v. Kentucky), but for many years, courts had incorrectly concluded that immigration consequences were collateral damage to convictions and not a basis for withdrawing a guilty plea. The collateral consequence of a loss of license despite innocence may be utterly unknown by the individual who is not in a position to obtain legal advice before making a decision to submit to a breathalyzer test. Indeed, innocent food products, common medical conditions and poor machine calibration could result in a presumption of guilt.
Operating a 4500 pound machine that can move at a pretty nice clip with only a foot touch on a pedal is an inherently dangerous undertaking. Impairing that action by ingesting a substance that delays reaction time and confuses the mind is the equivalent of walking around with a loaded gun. It might not go off, but if it does, some innocent person can die. That is tantamount to second degree murder, not the vehicular homicide misdemeanor we embrace. The minimal consequences of a guilty verdict for drunk drivers is, quite frankly, too low. But, if someone is not impaired, but merely fearful of a test that might demonstrate impairment and, indeed is acquitted of the offense of driving while impaired, the continued loss of a license is unconscionable.
Our foundation relies on the belief that it is more important to protect the innocent than punish the guilty. Criminal defendants enjoy the presumption of innocence and the burden of proof beyond a reasonable doubt rests solely upon the government for each and every element of the offense it charges. The suggestion that a punishment, whether collateral or otherwise, be imposed upon an individual even where the government failed to prove a crime is antithetical to our founders and the constitutions they placed in our safekeeping.