I-Team Wrong About Loophole in DUI Laws (CWOF)

The Channel 4 I-Team has a news report suggesting that a Continuation without a Finding, or CWOF is a loophole in Mass DUI Laws. But in fact, it is a longstanding and well understood legal practice, and always counts as a prior offense if there are future drunk driving charges.

The news report cites the case of a bar owner who allegedly received a CWOF on a second offense DUI, and later was convicted of an additional (third) offense, which was amended as a second.

Here is the news broadcast from investigative reporter Kathy Curran.

Anti-drunk driving advocate Ron Bersani, the primary force in the passage of Melanie’s Law (named after his granddaughter) calls this a loophole.

But the facts as described suggest there is something more mundane than sinister going on here.

Judges simply do not typically grant CWOFs on second offense DUI charges,  they are reserved for first time offenders. The one case where some judges will accept a CWOF on a second is in the case of a second chance 24D disposition, which only applies in cases where the prior was more than ten years earlier.

But the fact that the so-called second offense was a CWOF, and the third offense was amended to a second offense, suggests that the first offense was very old, and/or the Commonwealth did not have sufficient proof that the defendant had ever committed the first offense.

When determining if the defendant has a prior OUI, the commonwealth must prove beyond a reasonable doubt, that the defendant was previously “convicted” or “assigned to an alcohol education program” for a like offense. In Massachusetts, a defendant whose case is resolved by a CWOF is assigned to an alcohol education program.  A judge has no discretion in the matter to rule that a CWOF does not count as a prior.

This is actually surprisingly common in older drunk driving charges. The court has a record of a person with that name convicted of an OUI, but that can’t establish that it is the exact same person. Old records are often incomplete. For example, it may have a name, but not have a social security number attached.

It would certainly not be fair to convict a person of a second (or third offense, with mandatory jail time) if the Commonwealth cannot prove that the first offense is the same person.

And none of this has anything to do with the court procedures on how CWOFs are handled.

Separate Issues on CWOFs & RMV License Loss To Go To SJC

The I-Team report also conflates an entirely separate challenge to the use of CWOFs as evidence of a conviction when it comes to additional license loss due to chemical test (breath test) refusals. Several judges have questioned the current Registry practice of considering all CWOFs as convictions.

So even if the standards for license loss issued by the Registry are successfully challenged it court, that has no effect on whether CWOFs can be not counted as prior convictions. That is simply not true, and the I-Team got this one dead wrong.

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