The Massachusetts Supreme Judicial Court will hear oral argument tomorrow on the issue of whether the Valor Act permits a dismissal of an OUI charge over the prosecutor’s objection.  The case that raised this issue is Commonwealth v. Joel Morgan, which was originally  charged out of the Lowell District Court.

The Valor Act allows for pretrial diversion of any individual who has served in the military and has been in at least one day of actual combat. To qualify for a diversion under the Valor Act, the individual most not have any prior record and must get a recommendation from a treatment provider that they would benefit from the treatment.  The diversion is available for any type of criminal charge but has come up must recently regarding OUI offenses.  The Morgan raises two questions both in the context of a second offense; however, the Court’s reasoning is likely to apply to a first offense.

• Can a Judge enter a CWOF on a second offense OUI?
• Can a judge dismiss a second offense OUI after completion of the diversionary program over the Commonwealth’s objection?

Since the passage of this Act, I have had OUI cases dismissed under the Valor Act in some counties; in others, prosecutor have objected waiting for the resolution of this case in the Massachusetts Supreme Judicial Court.

Under G.L. c. 276A, § 10, the Court has jurisdiction to divert to a program any person who is: 1) a veteran, active service member or person with military history as defined in G.L. c. 4, § 7, cl. 43, charged with an offense for which a term of imprisonment may be imposed who has not been convicted of a violation of any law and who does not have any pending cases before any court.

At arraignment, a District Court judge may offer a 14-day continuance to an eligible defendant to seek an assessment by a qualified program. An initial determination of eligibility will be made with information provided to the court by the probation department. Probation shall use best efforts to confirm the defendant’s status as a veteran and notify the Court, counsel and the government of the defendant’s status. The purpose of the assessment is “to provide the court with treatment options available to the defendant, including diversion programs, if appropriate.” G.L. c. 276A, § 11.

The SJC will have to interpret this statute to determine if the language permits dismissal over the Commonwealth’s objection. The statute is silent on whether the Commonwealth has to consent to the diversionary treatment pursuant to the Valor Act. Given that the statute is silent on this issue, I would expect that the SJC will hold that the legislature intended that this would be available without the consent of the Commonwealth if it were approved by the judge. When the legislature passes a law, it is up to the court to interpret the law when it is vague or ambiguous; this case is an example of requiring the Court to interpret the statute. When doing so, the Court should attempt to carry out the intent of the legislature. Since there is not indication that the consent of the district attorney is required, it would defeat the statutory intent to impose this additional requirement.

The SJC will likely issue a decision on this case about three to four months. If you have questions about having an OUI dismissed under the Valor Act, feel free to contact DelSignore Law and speak to Attorney DelSignore.

To read the Valor Act statute, you can follow this link to Massachusetts General Laws.

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