Reform bill a mixed bag of new potential penalties and needed reforms to existing laws regarding diversion and sealing prior criminal records

In April, the Massachusetts legislature passed a bill that made significant reforms to the state’s criminal justice system. While the legislation enacted a number of important changes to existing criminal laws, there are at least eight that merit particular attention: 

1. More serious penalties have been put in place for OUI offenses. The law now provides for more severe penalties for someone convicted of a 5thor subsequent OUI offense. Anyone convicted of a 5thor 6thOUI offense now faces 2 1/2 years in the house of corrections or up to 5 years in state prison. A conviction for a 7thor 8thOUI offense now carries a penalty of 3 ½ to 8 years in state prison. Anyone convicted of a 9thOUI offense faces 4 ½ to 10 years in state prison.
2. Habitual OUI offenders will be prosecuted exclusively in Superior Court. Under changes made by the criminal reform legislation, anyone charged with a 7thor subsequent OUI offense will be prosecuted in Superior Court, which means their case will proceed after an indictment is returned by a grand jury. Thus, such habitual OUIs are considered more serious crimes that are no longer litigated in the District Court.
3. The definition of OUI - Drugs has been expanded. The definition of what it means to be “operating under the influence” of drugs has been amended under the criminal reform legislation to include those operating under the influence of certain types of inhalants. Before the bill, the statute only punished those operating under the influence of “vapors of glue.”  The criminal reform legislation amended the statutory language so that the crime of operating the influence of drugs now prohibits “smelling or inhaling the fumes of any substance having the property or releasing toxic vapors.” This includes a prohibition on driving a car while being under the influence of fumes produced by products like spray paint, cleaners, dispensers or aerosol cans, nitrous oxide, paint thinner, and lighter fluid. 
4. Mandatory minimums will be eliminated for some drug crimes, but they will now be imposed for others. While mandatory minimum sentences will be eliminated for certain low-level drug offenses under the criminal reform legislation, individuals convicted of trafficking synthetic opioids (Fentanyl and Carfentanil) will be subject to a mandatory minimum sentence of three-and-a-half years. The legislation seems aimed at reserving mandatory time in prison for those involved with serious drug offenses or in dealing drugs that are considered to be especially dangerous.  Defendants convicted of low-level drug crimes, on the other hand, will not automatically face time in jail.
5. Defendants will have more opportunities for alternatives to incarceration in the pretrial setting. The bill gives judges the ability to order a defendant’s participation in a pretrial service program within the office of community corrections as an alternative to incarceration in jail.
6. A defendant’s inability to pay bail must be taken into consideration. The criminal reform legislation enshrines the Supreme Judicial Court’s decision in Brangan, and mandates that a defendant’s ability to pay bail must be taken into account by a judge when bail is set.  
7. A defendant with behavioral health needs may be diverted from jail. The bill encourages district attorneys to use diversion programs in lieu of jail, when appropriate, for people who have mental illnesses and addictions so that they receive the treatment and programming, as opposed to being incarcerated. It is not yet clear how individual district attorneys offices will implement this piece of the reform legislation.  
8. It will be easier to expunge a criminal record for certain offenses and the waiting period for sealing prior convictions is also reduced.Prior to this legislation, juvenile offenses could follow a person into adulthood, preventing them from getting a job or receiving other opportunities. The new legislation makes it easier for people who committed a minor crime before the age of 21 to expunge that record permanently, provided that individual committed no other crimes in adulthood. Further, convictions for acts that are no longer considered crimes in Massachusetts – most notably, certain marijuana crimes – could be expunged as well. In addition, the legislation will allow prior felony convictions to be sealedafter 7 years, while misdemeanor convictions will automatically be eligible for sealing after 3 years.  

While this reform bill does not represent the type of wholesale change that our criminal justice system needs, the legislation does make certain limited adjustments that could be beneficial to individuals who find themselves facing criminal charges in Massachusetts or who have prior criminal records. The attorneys at Glickman, Sugarman, Kneeland & Gribouskiare carefully monitoring the implementation of thesechanges to Massachusetts criminal law and know how to best protect your rights. If you are facing a criminal charge or are worried a criminal charge will be filed against you, call us for a free consultation at (508) 756-6206.