§ 24D — Probation of persons convicted of driving under the influence; driver alcohol education program; alcohol treatment and rehabilitation programs; fees; indigents; gifts and grants; report

Section 24D. Any person convicted of or charged with operating a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, controlled substance or while under the influence from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors as defined in section 18 of chapter 270, may if such person consents, be placed on probation for not more than two years and shall, as a condition of probation, be assigned to a driver alcohol education program as provided herein and, if deemed necessary by the court, to an alcohol or controlled substance abuse treatment or rehabilitation program or to both, and such person's license or right to operate shall be suspended for a period of no less than forty-five nor more than ninety days; provided, however, that if such person was under the age of twenty-one when the offense was committed, the person's license or right to operate shall be suspended for two hundred and ten days, and such person shall be assigned to a program specifically designed by the department of public health for the education and treatment of drivers who operates a motor vehicle after or while consuming alcohol, controlled substances or while under the influence from smelling or inhaling the fumes of any substance having the property of releasing toxic vapors as defined in section 18 of chapter 270, except for a person aged 17 to 21, inclusive, whose blood alcohol percentage, by weight, was not less than.20, in which case such person shall be assigned to a driver alcohol treatment and rehabilitation program known as the ''14–day second offender in-home program''. Such order of probation shall be in addition to any penalties imposed as provided in subparagraph (1) of paragraph (a) of subdivision (1) of section twenty-four and shall be in addition to any requirements imposed as a condition for any suspension of sentence. Said person shall cooperate in an investigation conducted by the probation staff of the court for supervision of cases of operating under the influence and operating with a blood alcohol percentage of eight one-hundredths or greater, or in such manner as the commissioner of probation shall determine. A defendant not otherwise prohibited by this section, upon conviction after a trial on the merits, shall be presumed to be an appropriate candidate for the above mentioned programs; provided, however, that a judge who deems that the defendant is not a suitable candidate for said programs shall make such findings in writing.This section shall apply to any person who has never been convicted of operating a motor vehicle while under the influence of intoxicating liquor or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction. This section shall also apply to any person convicted of or charged with operating a motor vehicle while under the influence of intoxicating liquor who has been convicted of such offense or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a single like offense by a court of the commonwealth or any other jurisdiction 10 years or more before the date of the commission of the offense for which he is to be sentenced, once in his lifetime. If, after receiving a sentence for a second disposition pursuant to this paragraph, a person is convicted of an additional operating under the influence of intoxicating liquor all prior convictions or assignments to an alcohol or controlled substances program by a court of the commonwealth or any other jurisdiction shall be counted for purposes of sentencing under subdivision (1) of section 24.This section shall not apply to any person who caused serious personal injury to or the death of another person during the events that gave rise to the complaint or indictment for operating under the influence of alcohol.Upon each disposition under this section, the defendant will surrender any Massachusetts drivers license or permit in his possession to the probation department of that court. The probation department will dispose of the license, and the court shall report the disposition in the case in a manner as determined by the registrar. Notwithstanding the provisions of subparagraph (1) of paragraph (c) of subdivision (2) of section 24, subparagraph (1) of paragraph (f) of subdivision (1) of section 24, and section 24P, a defendant may immediately upon entering a program pursuant to this section apply to the registrar for consideration of a limited license for hardship purposes. The registrar, at his discretion, may issue such license under such terms and conditions as he may prescribe. Any such license shall be valid for an identical 12 hour period, 7 days a week. This provision shall also apply to any other suspensions due to the same incident that may be in effect pursuant to said subparagraph (1) of paragraph (c) of subdivision (2) of section 24, said subparagraph (1) of paragraph (f) of subdivision (1) of said section 24 and section 24P of this chapter. Nothing in this section shall be construed to authorize hardship eligibility if the person is suspended or revoked, or to be suspended or revoked, under any other statute not referenced in this section, or due to any other incident. Failure of the operator to complete his obligations to the program, or remain in compliance with court probation, shall be cause for immediate revocation of the hardship license. In these and all cases where a hardship license is sought by an operator, the probation office for the court where the offender is on probation will, upon request, furnish the registry with documentation verifying the person's status with probation. In all such cases where the defendant operated a motor vehicle with a percentage, by weight, of alcohol in their blood of fifteen one-hundredths or greater, the registrar may place a restriction on a hardship license granted by the registrar under this section requiring that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license.Driver alcohol education programs utilized under the provisions of this section shall be established and administered by the department of public health in consultation with the registrar and the secretary of public safety. The department of public health may adopt rules and regulations to carry out its powers and duties to establish and administer driver alcohol education programs in the commonwealth. Any person who is qualified for a disposition under this section, and who at the time of disposition is legally domiciled out-of-state, or is a full-time student residing out-of-state, may at the discretion of the court, be assigned to an out-of-state driver alcohol education program. The out-of-state program must be licensed by the appropriate state authority in the jurisdiction where the person is legally domiciled or is a full-time student. If the out-of-state driver alcohol education program contains fewer treatment service hours than is required by the department of public health, additional service treatment hours must be obtained to achieve equivalence with the driver alcohol education program requirement of the commonwealth.Alcohol or controlled substance abuse treatment, rehabilitation program or alcohol or controlled substance abuse treatment and rehabilitation programs utilized under the provisions of this section shall include any public or private out-patient clinic, hospital, employer or union-sponsored program, self-help group, or any other organization, facility, service or program which the department of public health has accepted as appropriate for the purposes of this section. The department of public health shall prepare and publish annually a list of all such accepted alcohol treatment, rehabilitation programs and alcohol treatment and rehabilitation programs in the commonwealth, shall make this list available upon request to members of the public, and shall from time to time furnish each court in the commonwealth, the registrar, and the secretary of public safety with a current copy of such list. The list shall also include the single state authority contacts for other states that operate driver alcohol education programs.Each person placed in a program of driver alcohol or controlled substance abuse education and, if deemed necessary by the court, a program of alcohol or controlled substance abuse treatment, rehabilitation, or alcohol or controlled substance abuse treatment and rehabilitation pursuant to this section shall pay directly to such program a fee in an amount to be determined by the department of public health. The department of public health shall establish and may from time to time revise a schedule of uniform fees to be charged by such programs which shall not exceed the actual cost per client of running said programs after notice and a public hearing, provided that until such time as the department of public health establishes a schedule of such fees pursuant to this section the fee for such programs shall be two hundred dollars. The department of public health shall promulgate regulations relative to the methodology of setting such fees. No person may be excluded from said program for inability to pay the stated fee, provided that such person files an affidavit of indigency or inability to pay with the court within ten days of the date of disposition, that investigation by the probation officer confirms such indigency or establishes that the payment of such fee would cause a substantial financial hardship to the individual, the individual's immediate family or the individual's dependents, and that the court enters a written finding thereof. In lieu of waiver of the entire amount of said fee, the court may direct such individual to make partial or installment payments of such fee when appropriate. Subject to appropriation, the department of public health shall reimburse each program for the costs of services provided to persons for whom payment of a fee has been waived on the grounds of indigency.The state treasurer may accept for the commonwealth for the purpose of driver alcohol or controlled substance abuse education, treatment, or rehabilitation any gift or bequest of money or property and any grant, loan, service, payment of property from a governmental authority. Any such money received shall be deposited in the state treasury for expenditure by the department of public health subject to appropriation for the support of said driver alcohol or controlled substance abuse treatment or rehabilitation programs in accordance with the conditions of the gift, grant, or loan. Any federal legislation generating funds for driver alcohol or controlled substance abuse education or treatment or rehabilitation shall be used by the department of public health to the extent possible to support the purposes of this section.An additional fee of two hundred and fifty dollars shall be paid to the chief probation officer of each court by each person placed in a program of driver alcohol or controlled substance abuse education pursuant to this section and all such fees shall be deposited with the state treasurer, subject to appropriation, for the support of programs operated by the secretary of public safety, the alcohol beverage control commission, and the department of public health for the investigation, enforcement, treatment and rehabilitation of those persons convicted of or charged with driving under the influence of intoxicating liquor or drugs.No such fee shall be collected from any person who, after the filing of an affidavit of indigency or inability to pay with the court within ten days of disposition and investigation by the probation officer confirming such indigency or establishing that the payment of such fee would cause a substantial financial hardship to the individual, the individual's immediate family or the individual's dependents, is determined by the court to be indigent, provided that the court enters a written finding thereof. In lieu of waiver of the entire amount of said fee, the court may direct such individual to make partial or installment payments of such fee when appropriate. Failure to pay the fees required under this section shall, unless excused, constitute sufficient basis for a finding by the court at a hearing held pursuant to section twenty-four E that the person has failed to satisfactorily comply with the program.The commissioner of probation shall report in writing at least once annually to the department of public health on the total number of persons who have received disposition hereunder and on the number of such persons who have been determined by the court to require alcohol or controlled substance abuse treatment or rehabilitation, or both. Said commissioner and the chief justices of the district courts and the Boston municipal court shall make further written report at least once annually to said department of public health on the resources available for alcohol or controlled substance abuse treatment or rehabilitation, or alcohol or controlled substance abuse treatment and rehabilitation, of alcohol-impaired or controlled substance abuse-impaired drivers, which report shall evaluate the existing resources and shall make recommendation as to additional necessary resources. Said department of public health shall take such reports into consideration in the development, implementation, and review of the state's alcoholism or controlled substance abuse plan and in the preparation of the division's annual budget in a manner consistent with the Alcoholism Treatment and Rehabilitation Law.When imposing a sentence pursuant to subparagraph (1) of paragraph (a) of section twenty-four or this section, the court may consider requiring the defendant, as a condition of probation, to serve a minimum of thirty hours in public service or in a community work project.