The Massachusetts Supreme Court will soon decide the case of Commonwealth v. Dayton, which raises the issue of whether an individual charged with an OUI third offense can be held as a danger to the community. The dangerousness statute of Massachusetts General Laws Chapter 58a, provides that a defendant can be held for up to 120 days without bail if the Commonwealth can establish that the defendant is a danger to the community. To be held without bail under the dangerousness statute, the defendant has to be charged with an offense which falls under the statute.

OUI third offense may fall under the statute, however, the statute is ambiguous, as to whether an OUI third qualifies for detention under the dangerousness statute. Section 58a., provides that the Commonwealth may order pretrial detention on conditions of release for a felony offense, including when a defendant is arrested and charged with a third or subsequent conviction for a violation of Section 24 of Ch. 90.

Third offense is a felony offense, however the issue is whether it counts as a third or subsequent conviction. The defendant’s in the Dayton case argued that a person must would have to be charged with a fourth offense in order to meet the requirements of being held as a danger to the community. A person charged with a third offense only has two prior convictions, as a person charged with a fourth offense has a third more subsequent conviction.

Because the statute speaks of the term third conviction, the statute seems to indicate that a person has to be charged with a fourth offense or convicted of a third offense prior to the requirements of the dangerousness statute to be met. I expect the court will decide this in favor of the defense based on the claim being that the statute. Since the language is ambiguous it should be construed in favor of the defendant. If the legislature intended for a defendant only to be charged, they would have stated anyone charged with a third offense. Instead, the term conviction indicates that the legislature was drawing a distinction and wanted the person to face three prior convictions before being held as a danger to the community.

While this decision raises an interesting issue of statutory interpretation, under Chapter 58a., in most cases district attorneys do not seek to hold the defendant as a danger to the community based on a third offense. In my experience working with clients up against third offenses, typically the government will ask for some form of bail or conditions of release. Bail on a third offense would range anywhere from $500.00 to $1,500.00 in most cases if a person appeared on their two prior OUI offenses.

The only county that does seek detention on third offenses, in my experience, is Essex County- in particular the Newbury District Court where I have had them request a dangerousness hearing on a third offense. While it is not common practice to request such a hearing, some DA’s offices’  have tried to use the statute in this fashion. When a district attorney does seek detention under a dangerousness statute, the government would have to call it’s witnesses and  this provides an opportunity for the defense counsel to cross examine the arresting officer and obtain discovery on the underlying OUI case.

The government’s burden is high to meet the dangerousness hearing because they have  to prove that no conditions of release can ensure the safety of the community and the public. In many cases, you can fashion remedies the would negate this requirement, such as requiring the person to submit to alcohol testing, do not drive orders, or other GPS tracking that would alert the court should the defendant get behind the wheel.

As a Massachusetts OUI Lawyer,despite the excellent arguments made by the Commonwealth’s Lawyer Joseph Coliflores, I would expect that the Court will side with the defense holding that as written the statute only allows for a defendant convicted of a Third Offense to be held as a danger to the community.

To listen to the oral argument from January 9th of this year, visit the Suffolk University Law School Website.  You can also read the Briefs and Court filings on the SJC website.