The BRAVE Act: How veterans and active duty military may avoid OUI prosecution

When the landmark Criminal Justice Reform bill was signed into law by Massachusetts Governor Charlie Baker in April of 2018, a number of substantial changes were made to the criminal justice system in Massachusetts. One such change significantly limited the number of criminal offenses eligible for pre-trial diversion, which is a form alternative resolution for court proceedings.

This specific change had a significant consequence for veterans and active duty military personnel, who previously were eligible for pre-trial diversion for almost any district court offense under what was known as the VALOR Act. The VALOR Act had the particular purpose of finding alternative resolutions for military defendants who were struggling with alcohol or substance abuse. This was particularly troubling for military defendants charged operating under the influence (“OUI”), who were no longer eligible for any diversion programs.

The legislature responded to this concern by inserting a provision into the pending BRAVE Act, an omnibus bill with a variety of military support provisions. Specifically, the new provision allows for veterans and active duty military members charged with an OUI to once again become eligible for pre-trial diversion, assuming certain qualifications are met. The BRAVE Act was signed into law on August 28, 2018. If eligible under the new law, an OUI defendant with military history can avoid prosecution, and instead opt to engage in recommended treatment from the Department of Veterans Affairs (“VA”).

The new law is not without its caveats. For example, a defendant is not eligible unless the VA finds that the defendant has a brain injury, substance abuse disorder, or serious mental illness that stems from that defendant’s military service. Additionally, a defendant cannot have ever been arrested for an OUI in the past, even if never convicted or even charged. If you have been charged with an OUI, and you think you may be eligible for pre-trial diversion under the BRAVE Act, contact an experienced OUI attorney as soon as possible.