Marijuana and Driving in Massachusetts

Not long ago marijuana was an illegal controlled substance in Massachusetts. First came “medical marijuana” and now we have legalized the recreational use of marijuana. Marijuana possession once led to arrest and criminal charges. Now, thanks to democratic process, in most cases it is not a violation of state law to possess marijuana in Massachusetts. This change reflects a softening of anti-drug measures. For example, as part of the “war on drugs,” the Registry of Motor Vehicles would automatically suspend driver’s licenses of those convicted of drug offenses. That requirement was recently changed so that most drug convictions do not automatically result in license suspensions.

The legalization of marijuana will undoubtedly lead to an increase in DUI drug cases and motor vehicle accidents caused by drivers who were under the influence of marijuana. It is still a crime to operate a motor vehicle while under the influence of marijuana and that does not mean that you have to be totally “stoned” to be convicted. All that is required is that your capacity to operate is diminished by having ingested marijuana, which still remains a Schedule I controlled substance under federal law.

There is currently no accepted standardized field sobriety evaluation for marijuana like there is for alcohol. Likewise, there is no effective roadside scientific test to reliably and accurately determine THC concentration in the bloodstream. These limitations might make DUI marijuana cases difficult to prosecute.

However, I predict that drivers who are found to be impaired by marijuana will have their licenses indefinitely revoked pursuant to G.L. c. 90 § 22(a), the Massachusetts Immediate Threat law. This statute allows the Registry of Motor Vehicles to summarily revoke the license or right to operate of a person who has recently acted in such a manner as to be a threat to the public safety. Operating a motor vehicle while under the influence of marijuana would seem to trigger this type of revocation. If this happens, my advice is to get a blood test as soon as possible to show the level of THC in your bloodstream.

If your license is revoked, you have the right to a hearing before a Registry Hearings Officer and you have the right to be represented by counsel. You also have the right to appear before the Board of Appeal of the Division of Insurance. This quasi-judicial Board has the “overreaching authority to affirm, modify, or annul any decision of the Registry.”

Please think twice before getting behind the wheel under the influence of marijuana. It is still a crime to drive while high and it could result in the loss of your driver’s license.

Tough Penalties for CDL Holders in Massachusetts

Both Massachusetts and Federal Laws impose severe penalties for truck drivers who violate DUI and breathalyzer refusal laws. These laws can result in a lifetime commercial driver’s license revocation which may be extremely difficult to reverse, even at the Massachusetts Division of Insurance Board of Appeal or in court.

For example, if you have a prior drunk driving conviction and you refuse to submit to a breath or blood test, after being arrested for operating under the influence of alcohol many years later, you will have a lifetime Commercial Driver’s License (CDL) revocation. This is because two events, such as a DUI or a refusal, not arising out of the same incident, will automatically trigger a lifetime CDL disqualification and revocation.

G.L. c. 90F, §9(B), which is a Massachusetts state statute applicable to CDL holders, enacted pursuant to Chapter 246 of the Acts of 1990, provides for lifetime disqualification penalties for any CDL holder who has two or more OUI offenses or two or more chemical test refusals, or any combination thereof, arising from two or more separate incidents. This Commercial Driver’s License Suspension is consistent with federal regulation 49 CFR §383.51, the purpose of which is to increase highway safety by removing certain drivers from the roadways. The Massachusetts and Federal regulations are consistent with the Commercial Motor Vehicle Safety Act of 1986 which is federal legislation governing commercial driver’s licenses. This law standardizes the penalties for drunk driving and breath test refusals when it comes to CDL holders.

The Board of Appeal has been upholding the lifetime CDL revocations even when a driver has a reinstatement order from a judge. The Board has taken the position that the early restoration order applies only to a Class D passenger car license and not a CDL. This interpretation has been upheld in Superior Courts.

Massachusetts to Issue New Licenses in 2017

In order to comply with federal identification document security standards which were implement as a post September 11, 2001 anti-terrorism safeguard, the Massachusetts Registry of Motor Vehicles will begin issuing driver’s licenses which comply with the Federal Real ID Act in the Fall of 2017. Although compliance with the Real ID Law was controversial, it is necessary in order for Massachusetts license holders to be able to enter secure federal buildings and board planes, using their licenses as forms of identification. In order to get one of these more secure identification credentials, the applicant will have to satisfy the Registry of Motor Vehicles that he or she is legally present in the United States. Those who are here illegally will not be able to obtain a Massachusetts Real ID Driver’s License. However, these individuals can use another secure document such as a valid passport to prove their identities and to be able to board aircraft.

Real ID Act Compliant Licenses are not mandatory. The Massachusetts Registry of Motor Vehicles will continue to issue driver’s licenses which are not complaint with the Act. Therefore, Massachusetts drivers will have the option of obtaining a Real ID Mass. Driver’s License or the less secure older form of a driver’s license, which confers the same driving privileges.

These new licenses are necessary because the U.S. Department of Homeland Security (DHS) prevents air carriers and others from accepting a driver’s license which does not satisfy certain security requirements. The Registry has been granted numerous extensions, so as to give it more time to meet Real ID Act Standards and this latest action will ensure compliance when the latest extension expires. The Registry has been working hard to make the necessary operational and logistical improvements required to be able to issue this more secure credential and it will be ready to do so next year.

Commercial Drivers License Suspensions

Prior to implementation of the Commercial Driver’s License (CDL) program in Massachusetts, any person licensed to drive an automobile could also legally drive a tractor-trailer or a bus. In many of the states that did have a classified licensing system, a person was not skills tested in a representative vehicle. As a result, many drivers were operating vehicles that they may not have been qualified to drive. In addition, drivers were able to obtain driver’s licenses from more than one state and hide or spread convictions among several driving records and continue to drive, despite suspensions or revocations.

To address the problems with unqualified truck drivers, the Federal Commercial Motor Vehicle Safety Act of 1986 (the Act) was signed into law on October 27, 1986. The goal of the Act is to improve highway safety nationally by ensuring that drivers of large trucks and buses are qualified to operate those vehicles and to remove unsafe and unqualified drivers from the highways. The Act retained the state’s right to issue a driver’s license, but established minimum national standards which states must meet when issuing CDLs. Massachusetts adopted the Federal Commercial Motor Vehicle Safety Act in 1990.

The Act is designed to protect the public from unqualified and potentially dangerous commercial drivers. The law outlines a series of criminal or other offenses or serious motor vehicle violations which would disqualify an operator from possessing a commercial driver’s license (CDL). Section 9 Chapter 90F sets forth the penalties for CDL violations as well as certain non-CDL violations such as DUI or refusing to submit to a breath test, regardless of whether the person arrested for Operating Under the Influence is operating a CDL vehicle or not. A single DUI or breathalyzer refusal violation results in a one year CDL disqualification. If a CDL holder commits a violation contained in the list on two separate occasions, the CDL is subject to revocation and the CDL holder would be disqualified for life from reinstating his CDL privilege. Chapter 90F, Section 9 includes a life-time look-back period.

When a CDL, operator violates one of the Laws or regulations contained in c. 90F, Section 9, he is disqualified from holding a CDL for a certain period of time. A disqualification means that a person is not allowed to posses the license or right to operate.

Unfortunately, the Board of Appeal has determined that it does not have the discretion or statutory power to order the Registrar to modify the disqualification where the individual offenses are valid and proper.

Maine DUI Suspensions

maine_duiIf you are a Massachusetts resident who commits the crime of Operating Under the Influence of Liquor in the State of Maine, you will have to deal with both the Maine Bureau of Highway Safety and the Massachusetts Department of Transportation (MassDOT) to get your driver’s license reinstated.

The State of Maine will suspend your right to operate of your BAC is at or above .08. Also, like Massachusetts, Maine will immediately suspend your right to drive if you refuse to submit to a chemical test. In Maine, Chemical Test Refusal Suspensions can last for up to six years. In Massachusetts, CTR suspensions can last a lifetime.

A Maine DUI arrest will likely result in a reciprocal suspension of your Massachusetts Driver’s License and a block in the National Driver Register (NDR). This indefinite NDR suspension can only be removed once you satisfy all requirements in both Maine and Massachusetts.

In addition to the indefinite NDR suspension, once the RMV learns of the Maine DUI conviction, your Mass. license will be automatically suspended for one year up to life here in Massachusetts. In many cases, I can get the MA suspension reduced or “deemed served.”

A first offense DUI conviction in Maine will result in a license suspension of 150 days, during which time you will not be eligible for any type of work or hardship license in Massachusetts. You can only be considered for hardship relief by the Mass. RMV when your right to drive has been reinstated in by the Maine DMV.

If you are convicted of DUI in Maine, you must attend and satisfactorily complete the Maine Driver Education and Evaluation Program (DEEP) as a condition of reinstatement. You must also pay all required fines and fees in full. It is imperative that you request and obtain “proof of completion” of this program.

Driving with Diabetes in Massachusetts

immediate_threat_medicalThe highest court in Massachusetts has ruled that the purpose of licensure is preservation of public health, safety, and welfare by extending the public trust only to those with proven qualifications. For this reason, the Legislature authorized the Registrar to revoke or suspend an operator’s license if there is reason to believe that the licensee’s continued operation of a motor vehicle would constitute an immediate threat to public safety, regardless of the underlying reason. However, you are entitled to apply for reinstatement by showing that returning you to the road would not compromise public safety.

In my law practice, I have had the opportunity to handle a large number of cases involving Immediate Threat Medical Indefinite Revocations which the Massachusetts Registry of Motor Vehicles imposes upon the receipt of a report from a physician, health care provider or police officer indicating that a driver may not be safe to operate a motor vehicle due to a diabetic episode which resulted from uncontrolled blood sugar.

Low blood sugar, in particular, can cause blackouts, loss of consciousness, an altered mental state, and it has the potential to cause the loss of control of a motor vehicle, which is the Registry’s concern.

If your license has been revoked due to a diabetic episode, you will have to convince a Registry Hearings Officer that your diabetes is under control to such an extent that you are safe to resume driving. Fortunately, modern insulin pumps can go a long way towards bringing diabetes under control and there are several ways that you can show that your blood sugar is being monitored and sufficiently controlled. The Registry will generally require completed Loss of Consciousness and Medical Clearance Forms as a first step. Both of these forms must be completed a certain way and only after the completing physician has read the applicable police report or Medical Evaluation Request. The doctor who completes the forms must indicate that he or she has an understanding of the event which resulted in the loss of your license. Simply having a doctor write a letter regarding your condition will not satisfy the Registry.

In many diabetes cases, the Registry places an “S” or “sugar” restriction on the diabetic’s license and he or she is required to provide quarterly blood sugar monitoring agreements to a RMV Hearings Officer. These forms must be signed by the customer’s treating endocrinologist indicating that the customer is complying with treatment and mainlining his or her blood sugar within normal limits.

Unfortunately, due to the nature of an immediate threat medical revocation, hardship licenses are not available. Neither the Board of Appeal nor MassDOT will consider anyone for a hardship license while an immediate threat revocation is in effect. The rationale for this is that if a person is not safe to drive, they should not be driving at all, until the Registry is satisfied that their medical condition is under control.

New Law to Detect Suspended Drivers

There’s now another reason to apply for a hardship license instead of running the risk of being arrested for operating after suspension in Massachusetts.

Shortly before leaving office, Governor Deval Patrick signed a bill which will require the Massachusetts Registry of Motor Vehicles to notify the local police whenever a so-called “dangerous driver” in their community has his or her license taken away. The purpose of this new law is to notify the police of the loss of driving privileges, so that they will be aware of suspended drivers in their cities or towns.

Under this new law, if your license has been suspended or revoked for DUI, being an immediate threat, habitual traffic offender or other specified reason, your local police department will be alerted and if you are seen driving, you can be arrested and criminally charged. There is mandatory jail time associated with some operating after suspension convictions and, if you are convicted, you will lose your license for an even longer period of time.

The police have other tools at their disposal to detect drivers who have lost their licenses. These tools include Automatic License Plate Recognition and cruiser laptops which allow police to check your license status without you even knowing it. In 2013, state and local police issued at total of 62,000 citations for people driving while unlicensed or suspended in Massachusetts. With this new law, those numbers are likely to increase.

The basis for the new law is the death of a 20 year old Sharon woman who was struck and killed by a driver whose license had recently been suspended.

Instead of risking arrest and prosecution, if you have a valid reason to drive, you can be considered for a hardship license by appearing before either the Registry or Division of Insurance Board of Appeal. Both of these agencies have the ability to consider you for a 12 hour license if you satisfy the requirements. This is a much better option than risking jail by driving while your right to operate is under suspension or revocation.

Suspension Notifications for Taxi Drivers Proposed

TAXI_PERMITState Representative Paul Tucker of Salem, Massachusetts, who is the former Chief of Police of the Salem Police Department is proposing legislation which would require the Registry of Motor Vehicles to automatically notify local Massachusetts Police Departments whenever a Taxi driver has his driver’s license suspended or revoked.

The basis for this legislation is that Taxi or Hackney licenses are issued by local police departments and they currently have no way of knowing if a taxi driver had his or her driver’s license suspended or revoked by the Massachusetts Department of Transportation.  With these electronic notifications, the local police can ensure that the driver is not still operating a taxi with a revoked or suspended driver’s license. It places information in the hands of local police so that they could consider taking action against the taxi driver’s hackney or taxi permit.

The proposed legislation was prompted by the death of a 44 year old man who was struck and killed in Salem, Massachusetts. The victim was struck by a taxi driver who had no valid Mass. Driver’s license. Under the new proposed system, the police would have been notified that the driver had no license and the police could have taken action to prevent him from working as a taxi driver.

Under the current system, most police departments only check the status of taxi drivers’ licenses when they apply for new hackney permits or renewals of their permits when they are due to expire. The new system would provide electronic notifications in a near “real time” basis.

Taxi drivers are more likely to accumulate surchargeable events due to the extensive amount of driving which they do often in congested urban areas and sometimes under time pressures.

Arrest Warrants and License Suspensions

If you fail to appear in court in Massachusetts when you are required to do so, a judge may issue a warrants for your arrest. When this happens, the Clerk-Magistrate’s Office will notify the Registry of Motor Vehicles and the RMV will automatically suspend your driver’s license and/or right to operate a motor vehicle in Massachusetts. Once this happens, you will not be able to get your driver’s license or right to operate reinstated until the arrest warrant is recalled by the court.

If you have moved out of state, you may be denied licensure in your new state due to a NDR block on your license record. Also, if you have already obtained an out of state license, it may be suspended due to the Massachusetts suspension which was triggered by the issuance of a warrant. Finally, you may be denied renewal of your license by your home state motor vehicle department because of the Massachusetts arrest warrant.

In most, but not all cases, if you have a Massachusetts arrest warrant for a minor offense, you will not be arrested if you are stopped by the police outside of Massachusetts. On the other hand, if you are stopped in Massachusetts, you will be arrested “on the spot.” This is because an arrest warrant is basically a legal command from a judge to the police to arrest the person named in the warrant and bring him or her before the court to answer to criminal charges.

There is no “statute of limitations” which allows you to remove the warrant without addressing the underlying court case and warrants do not expire. Instead, they will remain in the system until they are recalled by a judge. Unless this occurs, your Massachusetts license will remain indefinitely suspended.  If your license was suspended due to the issuance of an arrest warrant, absolutely no hardship license of any kind will be issued.

Some people mistakenly believe that their driver’s license is automatically reinstated once the warrant is recalled by the court.  This is not true. Once your license is suspended, you go to the RMV and pay the required reinstatement fee prior to driving. Simply taking care of the warrant does not reinstate your right to drive.

My office has extensive experience in dealing with license suspensions, especially for out of state clients who have NDR blocks. Please contact me if you need assistance. If you need help clearing a warrant, I can refer you to a criminal defense lawyer who can help you.

Texting While Driving

In 2010, Massachusetts joined the list of 39 states that have placed some sort of ban texting while operating a motor vehicle.  The law that was enacted has placed numerous restrictions and harsher penalties on drivers that are operating a vehicle while communicating on a cell phone in an attempt to lower the amount of deaths and injuries caused by distracted driving.  In 2010, over 3,000 people were killed in car accidents caused by distracted drivers, and an additional 416,000 were injured.1 The bill states that no person operating a motor vehicle, regardless of age or profession, is allowed to send any sort of electronic message, including text messages, or allowed to use the internet on their mobile device.  However, drivers over the age of 18 are permitted to use cell phones for calling purposes and may also use hands-free technology.

Any operator of a public transportation vehicle or anyone considered a ‘novice driver’ (age 16-17) is prohibited from using a cell phone, regardless of if it is hands-free or not, except in emergency situations (which may be proven by phone records which shows the emergency call as evidence).  If you are a novice driver and are caught using your cell phone, your first offense results in a suspension of your license/learners permit, a fine of $100 and the required attendance at a course on improving the attitude behind the wheel.  The penalties are significantly harsher on the second and third offenses.  If the driver is over the age of 18 and caught texting while driving, the first offense results in a fine of $100 with significantly higher fines for future offenses.

Sending or reading an electronic message while operating a motor vehicle in Massachusetts constitutes a surchargeable event which can lead to the loss of your driver’s license.  If this occurs, you are entitled to appeal the suspension and you are allowed to be represented by a lawyer at any appeal hearing.