If you’re arrested for drunk driving in Massachusetts and you have a child under the age of fourteen in the car, you’ll be charged with the additional crime of “OUI child endangerment.”
This crime carries an “enhanced penalty” of “imprisonment in the house of correction for not less than 90 days.” See G.L. c. 90, Section 24V.
Moreover, OUI child endangerment charges cannot be “continued without a finding.” This means that if you plead, you must plead “guilty” to the charge.
Therefore, it seems reasonable to say that anyone who pleads guilty to OUI child endangerment must serve at least 90 days in jail.
But there’s confusion and disagreement among lawyers as to whether or not the 90-day sentence can be suspended.
(When a sentence is suspended, the defendant does not go directly to jail. Instead, after pleading to the alleged crime, the defendant is placed on probation and if he or she violates the terms of probation the sentence is then imposed.)
I have seen the OUI-child-endangerment sentence suspended twice–once in a case that I handled and another time during a plea that I observed.
It’s important to note that in both cases, the prosecutor and the defense attorney agreed to suspend the sentence and the judge signed off on it.
In either case, if the judge suspended the sentence over the prosecutor’s objection, the issue could have been appealed. And it’s possible the Appeals Court or the Supreme Judicial Court would have reversed the decision to suspend the sentence.
Nevertheless, when you read the entirety of the statute, there’s grounds for arguing that the 90-day minimum sentence can be suspended.
The statute also imposes a 6-month minimum sentence on anyone convicted of a second/subsequent OUI child endangerment charge.
The legislature expressly states that this 6-month sentence “shall not be reduced to less than 6 months, nor suspended.” Emphasis added.
No such language accompanies the 90-day sentence for first time offenders.
So, clearly, the legislature was aware that courts frequently suspended jail sentences, but chose to expressly prohibit such leniency only with a second/subsequent offense.
If you’re charged with a first-offense OUI child endangerment and you want to resolve your case with a plea deal, try to get the prosecutor to dismiss, amend, or nol pros the charge. This may require you to plead guilty to the underlying OUI (rather than getting the more lenient continuation without a finding.)
If the prosecutor refuses to drop the child-endangerment count, but he’s willing to agree to a suspended sentence, make sure that you tender the plea in front of a fair-minded judge. This, of course, requires the assistance of an experienced defense attorney.