By Kathy Curran, WBZ-TVBy Kathy Curran

BOSTON (CBS) – Melanie’s Law dramatically increased the penalties on repeat drunk drivers, but the I-Team has discovered there’s a loophole that could undermine the law. If the loophole isn’t closed, thousands of chronic drunk drivers could be getting back behind the wheel.

Westborough Police found Lancaster Town Administrator Orlando Pacheco passed out on the hood of his car one night in August after he drove drunk from a strip club in Worcester.

“From the picture that we saw of the condition that he was in he should not have been driving at all,” said Westborough Police Chief Alan Gordon.

Pacheco was hit with his first charge of operating under the influence, but like many first-timers, he was able to cut a deal.

In exchange for an “admission to sufficient facts,” the judge gave him what is known as a CWOF — a continuation without a finding. If Pacheco stays out of trouble for a year his case will be dismissed.

“A continued without a finding is an admission to that crime,” said defense attorney Jay Milligan, who specializes in drunk driving cases. “You’re admitting that you committed that in no uncertain terms. It’s just not a conviction.”

The same thing happened with Boston bar owner Jim Rooney, a repeat drunk driver who the I-Team revealed had a bad habit of driving on his suspended driver’s license.

Rooney’s second drunk driving case in Stoughton was a CWOF and because of that, when he got his third OUI in Braintree, the court amended the record to make it his second offense.

That’s the loophole in Melanie’s Law.

Defense lawyers have started to realize that many judges don’t count a CWOF as a conviction in drunk driving cases. That’s significant because every year thousands of OUI cases in Massachusetts are continued without a finding.

“This would stab right at the heart of the law,” said Ron Bersani, grandfather of Melanie Powell, a teenage girl hit and killed by a repeat drunk driver in 2003.

The heart of Melanie’s Law, Bersani says, is longer license suspensions for repeat drunk drivers who refuse the breathalyzer test.

Under the law passed by the Legislature in 2005, first-time offenders lose their license for just six months, but on the second offense, the suspension jumps to three years. A third offense brings a five year loss of license and the fourth a lifetime suspension.

“The feeling has been that if you get a CWOF on the first one that’s sort of your mulligan. If you’re a golfer, you know, that’s a do over,” Bersani said. “So to throw this out means what? Now they get two mulligans before they get to the real meat of the law? That’s counter to what the intent of the Legislature was.”

Milligan said a CWOF is indeed an admission of guilt, but as long as the defendant does not violate probation, the guilty finding is never entered into the court record.

“It’s not a loophole because (the Legislature) drafted this language,” Milligan said. “They didn’t do this overnight. This was a long process, they took a lot of time to do it.”

Said Bersani: “If you get arrested again and are convicted, then you deserve the penalties that are on the books. If you make it more difficult to convict drunk drivers and more difficult to get repeat offenders off the road, that effects all of us.”

The issue of whether a CWOF should count as a drunk driving conviction is about to come to a head. It’s now before the state’s Supreme Judicial Court and a decision is expected early next month.

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