Conflict is feared on drunk driver bill

Five of the six legislators who will negotiate the final version of an anti-drunken-driving measure in the coming weeks are themselves lawyers who have defended clients in drunken driving cases, a Globe review has found.

Their background set off concern among some proponents of the measure, who have pushed for inclusion of tougher penalties for repeat drunk drivers. The measure has sparked intense interest on Beacon Hill, and during this week's debate in the House, several lawyer-legislators attacked the bill's provisions for threatening the rights of the accused.

''I'm a little bit concerned because, in the House, it's not that there is an overwhelming number of criminal defense attorneys, but the ones who are have very powerful positions, including Representative [Eugene L. O'Flaherty]," said Ron Bersani, the grandfather of the girl who was killed by a drunk driver and inspired the legislation.

Still, Bersani and the legislators themselves note that some of those who represent drunk drivers favored a tougher law.

Introduced in May, the legislation was drafted to impose new penalties on those who are convicted repeatedly of drunken driving. However, House members weakened it on the House floor last week, rejecting provisions that would stiffen penalties for those who refuse breathalyzer tests and would require automobile ignition interlock devices as a condition for giving repeat offenders their licenses back. The devices, connected to a car's ignition, prevent a car from starting if alcohol is detected on the driver's breath.

Governor Mitt Romney introduced the original legislation, dubbed Melanie's Bill, for the 13-year-old Marshfield girl struck and killed by a repeat offender in 2003. Relatives of Melanie Powell and other victims of drunk drivers testified at an emotional State House hearing last month, stirring interest and media coverage of the legislation. But when the House debated the measure last week, O'Flaherty, lashed out over the media attention and urged his colleagues to resist pressure to rush into law provisions that he said may be unconstitutional.

After the House approved its stripped-down version of the bill Wednesday, the Senate approved its own version, which included the ignition interlock device and breathalyzer provisions, as well as language that would allow cars to be seized from those convicted of drunken driving four times or more. That means the conference committee debate will be crucial in resolving the differences.

On the conference committee, Senator Robert L. Hedlund, a Weymouth Republican, is the only nonlawyer.

The other appointees include Senator Robert S. Creedon Jr., a Brockton Democrat; Senator Steven A. Baddour, a Methuen Democrat; Representative Michael A. Costello, a Newburyport Democrat; Representative Daniel K. Webster, a Hanson Republican; and O'Flaherty, a Chelsea Democrat. In interviews with the Globe yesterday, all acknowledged that they had defended people facing drunken driving charges.

Rather than being a conflict, his legal work gives him a better perspective on the problem of substance abuse, said Creedon, who authored the bill's Senate version.

Costello offered a similar view. ''If anything, I think it's been helpful to be able to have a perspective on both sides," he said. ''If we never saw another drunk driver walk through the door of any practice, we'd be very happy."

The presence of so many lawyers on the conference committee points to an oft-criticized fact about the Legislature: Many of those drawn to make law also practice it. Lawyers make up 37 percent of the Senate and 22 percent of the House, according to the Massachusetts Political Almanac.

The current House speaker, Salvatore F. DiMasi, is a lawyer who once prosecuted drunken driving cases before defending them in private practice, said his spokeswoman, Kim Haberlin. A 1990 Globe report found that DiMasi specialized in defending alleged drunk drivers and people accused of other serious motor vehicle violations.

DiMasi was out of town for the debate, and O'Flaherty said he had not spoken to DiMasi about the issue. Haberlin declined to say whether DiMasi directly selected the conferees while he was out of town. However, both O'Flaherty and Creedon, who chair the judiciary committee, would be expected to sit on the committee to resolve versions of their bills.

Representative Frank M. Hynes, a Marshfield Democrat who championed the tougher drunken driving provisions in the House and locked horns with O'Flaherty, suggested that it was dangerous for legislators to participate in debates that could have an impact on their outside income.

''To eliminate that appearance, people ought to recognize that until they either recuse themselves or just don't involve themselves in that debate, then the appearance will always be there," Hynes said.

O'Flaherty said he was insulted by any suggestion that lawyers who serve in the Legislature may be motivated by their financial interests, not their conscience.

''I find that extremely disparaging," he said.

A former Suffolk County public defender, O'Flaherty said he has defended drunken driving cases through his work at a Somerville law firm, but never one in which a victim was seriously injured. He said that since he was elected nine years ago, he has handled mostly civil cases.

It's a matter of debate how tightening the penalties for drunken driving in Massachusetts would affect the business of those lawyers who represent accused drunk drivers. Some argue that defense lawyers are fighting the new provisions because they would give an advantage to prosecutors in court. Others say that changes in the law would prompt more of the accused to seek representation.

But Barbara Harrington, state executive director of the Mothers Against Drunk Driving, said that lawmakers who are also lawyers have an advantage in debates about changes to the law: They know the convoluted, often-amended drunken driving law better than anyone.

''It just stands to reason they would have influence with those who are grasping to understand it," she said.

In the Senate, Creedon and Baddour shepherded the tougher version of the bill, which passed by a unanimous vote on Thursday.

''It was aggravating that people were saying, 'The lawyers are killing it,' " Baddour said. ''That's just not the case."