The Real ID Act of 2005

The Massachusetts Department of Transportation (MassDOT) is working toward compliance with the Federal Real ID Act and the Registry of Motor Vehicles (RMV) now issues driver’s licenses which are Real ID Act Compliant.

These new secure driver’s licenses will be required for entry into federal buildings and to board domestic fights. However, individuals who have a valid U.S. passport or passport card can use those documents to prove their identities instead of a driver’s license.

The Real ID Act of 2005 was passed to protect against terrorism and it requires motor vehicle departments across the country to meet new security requirements regarding the issuance of official identification cards and driver’s licenses. These new credentials have both public and secret security features to resist counterfeiting, identity theft, license fraud, and illegal duplication. Massachusetts residents will have until October of 2020 to obtain Real ID Act Compliant Driver’s Licenses. Pursuant to an extension granted by the U.S. Department of Homeland Security, current MA driver’s licenses can be used until the deadline.

The current Massachusetts RMV Policy is that no driver’s license of any type may be issued or granted to a person who is not lawfully present in the United States. The Registry enforces this policy by requiring that driver’s license applicants have at least an Employment Authorization Document (EAD) for a Class D license and a Permanent Resident ID or “green card” for a CDL (Commercial Driver’s License).

With the nationwide implementation of the Real ID Act, the Registry will likely be discovering and investigating additional cases of license fraud, which can result in criminal prosecution pursuant to G.L. c. 90 § 24B and mandatory license revocations.

Anyone who receives a letter from the Mass. RMV regarding license fraud is entitled to legal representation at any Registry Hearing, including those hearings conducted at the Special Investigation Unit / Enforcement Services Department of the Registry of Motor Vehicles, which is located at 25 Stuart Street in Boston. This unit is staffed with highly trained State Troopers and other personnel who investigate identity theft and license fraud cases. This is the only location were license fraud hearings are conducted in Massachusetts.

Missed Ignition Interlock Re-Test Violations

vehicle ignitionLeaving your vehicle’s engine running or even the key in the “accessory” position could cause you to receive an Ignition Interlock Violation. This is because the Massachusetts Registry’s Ignition Interlock Device Regulations penalize drivers who miss rolling re-tests and the ignition interlock devices used in Massachusetts, such as the Smart Start and Intoxalock devices, are all programmed to require “rolling re-tests” at random intervals when the devices sense that the vehicle is being operated. This IID sensor makes no distinction between the engine actually running or the key being in the “accessory” position.

The Massachusetts Registry of Motor Vehicles takes ignition interlock violations seriously, and rightfully so. The periodic rolling re-test requirement is imposed to ensure that a driver did not have someone else start his or her vehicle so that he or she could operate the car while under the influence of alcohol. The re-test requirement prevents this by asking for breath samples at random intervals whenever the IID senses that the car is running. Rolling re-tests are required even if the vehicle is stationary, so the term “rolling” is somewhat of a misnomer.

Ignition Interlock users in Massachusetts should be careful to make sure that the vehicle’s ignition is in the “off” position prior to getting out of the vehicle. Also, it is not advisable to leave the engine running for the vehicle to speed up or cool down by using the heat or air conditioning, since the IID will require breath samples. It is important not to miss requested rolling re-test because it can result in violations and a potential 10-year driver’s license revocation.

When the IID calls for a re-test, it will beep and signal the driver to provide a breath sample. If the breath test is not completed within a pre-set time frame a missed test will be recorded and multiple missed tests will trigger a lockout. This information will be electronically stored and reported to the Registry’s Interlock Department during the required monthly download. Upon reviewing the information, a Hearing Officer may send out an IID violation notice to the customer which informs him or her that a hearing will be conducted at the Registry and that hearing may result in the imposition of a 10-year revocation. Those who fail to appear at violation hearings will have their driving privileges revoked indefinitely.  Anyone facing such a hearing is entitled to legal representation there are lawyers who specialize in representing clients who are facing Ignition Interlock Violations at the Registry. These violations carry 10-year license revocations, so the penalties can be severe.

Ignition Interlock Violation Notices

When the Massachusetts Registry of Motor Vehicles (RMV) receives documentation which shows a violation of the Ignition Interlock Device (IID) program requirements, you will receive violation hearing notice. The Registry mails these notices to the customer’s address on record with the RMV. Any alleged non-compliance with IID program requirements can result in the scheduling of a violation hearing. The notice will inform you of the address, date and time of your scheduled Ignition Interlock Device Violation hearing. If you fail to appear, the Registry will automatically revoke your driver’s license.

The hearing notice will contain a summary of the alleged violations and your rights under the law. At the hearing, you have the right to present your side of the case and refute any evidence of the alleged IID violations. This is your opportunity to convince the Registry Hearing Officer not to revoke your driver’s license for 10 years for having violated the IID program requirements.

The Registry requests that Prior to the IID violation hearing, you submit to the RMV’s Ignition Interlock Department any evidence which you plan to present at the hearing and a list of all witnesses you intend to have testify on your behalf.

The Registry’s Ignition Interlock Department conducts violation hearings and the Registry enforces program requirements with a zero-tolerance approach. Fortunately, you are legally entitled to be represented by counsel at these violation hearings. Hiring a lawyer is highly recommended and effective representation can often mean the difference between keeping or losing your driver’s license for 10 years.

If you receive a violation hearing notice, you should promptly contact an attorney. Also, you should contact your service provider and request a copy of the interlock readings from the last 6 months. The service provider is legally required to supply the customer with this data and it can be very helpful when it comes to defending yourself against an alleged violation.

New DUI Marijuana Court Ruling

With the legalization of Marijuana by the Massachusetts Legislature as a result of a referendum ballot question, there have been many changes in the law and some of those law changes impact Massachusetts Hardship Licenses as well as suspensions and revocations. Medical Marijuana is low legal in Massachusetts and the Registry of Motor Vehicles no longer suspends licenses for certain drug convictions such as possession of marijuana, even if the conviction entered prior to legalization.

The highest court in Massachusetts, the Supreme Judicial Court, recently issued a major ruling regarding the crime of Operating Under the Influence of Marijuana. In a DUI Drugs Trial, a police officer who is not qualified as an expert witness cannot legally testify that the driver was under the influence of marijuana or that the consumption of the marijuana impacted the driver’s ability to safely operate a motor vehicle.

In Mass. DUI drugs trials, law enforcement officers cannot refer to roadside assessment as field sobriety tests and failing these tests does not mean that the defendant was sufficiently impaired by marijuana to diminish his or her ability to drive safely.

The Mass. SJC also ruled that only an expert witness can testify that a person was “high” on marijuana. A police officer can testify as to observations but not that those observations necessarily mean that the driver was under the influence of marijuana.

Drug recognition experts can still testify regarding their opinions and observations. However, police officers who have not been trained, testified, and certified as drug recognition experts will not be allowed to testify as to their opinions.

Given these legal restrictions, obtaining convictions for Operating under the Influence of Drugs will likely be more difficult. This may encourage police officers to suspend driver’s licenses by using the immediate threat law.

Appealing a Breathalyzer Refusal Suspension

If the Massachusetts Registry of Motor Vehicles suspended or revoked your driver’s license or right to operate, you have the right to contest the Registry’s action, but you must follow certain procedures, otherwise, you will lose your right to appeal.

In these refusal appeals, there are generally three questions which must be addressed. First, did the arresting police officer have reasonable grounds to believe that the person arrested committed the crime of operating a motor vehicle while under the influence of alcohol? Second, was the person actually placed under arrest for DUI? Third, did the person refuse to submit to a breath or blood test after having been told that his or her license or right to drive would be suspended for a minimum of 6 months and a maximum of life?

Also, the police are required to follow certain procedures when documenting a breath test refusal and the failure to follow those procedures might result in a successful suspension appeal.

You must personally appear for your breathalyzer refusal appeal hearing between the hours of 9:00 A.M. and 3:00 P.M. within fifteen days of your drunk driving arrest. Because only a few hearing officers are authorized to conduct Chemical Test Refusal hearings, they are only held at the Boston RMV Branch, which is located on the third floor at 136 Blackstone Street in Boston, Massachusetts. These hearings are held on a walk-in basis and you must personally appear. You have the right to present any witnesses, documents, or other evidence you wish to have the Registry consider. There is no provision in the law for any extension of the 15-day appeal period, and no letter, phone calls, or other communications to the Registry will extend the appeal period beyond 15 days or to grant a hearing at any location other than the Boston RMV Branch. However, once your initial refusal hearing is opened, it is possible to appear for a follow up hearing and to present initial evidence, while the record remains open.

You have the right to be represented by a lawyer at these hearings and this is strongly recommended, especially if you are facing a 3-year, 5-year, or lifetime refusal suspension.

 

CDL Disqualifications & Revocations

Federal Regulations, 49 CFR 383.51, carry strict penalties for holders of Commercial Drivers Licenses who commit certain traffic violations. For example, if you receive a citation for “excessive speeding,” which is defined as speeding in excess of 15 miles per hour over the speed limit, it will be counted against you as a serious traffic violation (STV).  However, in order for this to affect your CDL, the speeding violation must have been committed while you were operating a CDL vehicle.

A Reckless Driving, Careless Driving, Negligent Operation or Operating so as to Endanger conviction will result in a 60-day suspension of your Class D, passenger car, license in Massachusetts regardless of whether the offense was committed in a passenger car or CDL vehicle.

Other violations committed while operating a commercial motor vehicle such as improper and unsafe lane charges count towards the 60-day Serious Traffic Violation Disqualification penalty. However, this particular infraction should not apply in all situations. I have personally seen CDL drivers cited for marked lanes violations when all they did was park their tractor trailer units in improper spots at truck stops and rest areas. Instead of being issued parking tickets, they were issued traffic citations which later resulted in the suspension of their commercial driver’s licenses.  If this happens to you, it is important to appeal the citation because it does not seem to be the type of violation that was intended to cause the loss of a CDL. Instead, the disqualification appears to be focused on penalizing someone who makes unsafe lane changes while operating a tractor trailer unit.

Another example of stricter penalties for CDL drivers is the .04 blood alcohol limit. Under both state and federal law, a CDL holder who operates a CDL vehicle with a BAC of .04 or above will result in an automatic CDL revocation or disqualification. This penalty can be imposed whether the driver is on or off duty, so long as the driver was operating a CDL vehicle, such as a tractor trailer unit, at the time of the violation. The blood alcohol limit for drivers of non-CDL vehicles is .08.

If you depend on a Commercial Drivers License to earn a living, you should take the steps necessary to protect your livelihood by driving carefully, being aware of what could cause a CDL disqualification, and assert your appellate rights when necessary.

The Registry is Cracking Down on License Fraud

Four Customer Service Representatives at the Boston Registry of Motor Vehicles Branch were recently indicted on license fraud charges in Federal Court. The Registry will undoubtedly be revoking the fraudulent licenses which these clerks issued. Most, if not all, apparently were issued based on Puerto Rican birth certificates and other official documents to Dominicans and others who were not lawfully present in the United States.

Also, as part of a crackdown on license fraud in Massachusetts, the RMV is allowing police officers and other law enforcement personnel to request that the Special Investigations Unit of the Registry of Motor Vehicles revoke an individual’s Mass. license or right to drive in Massachusetts if a police official determines that that the driver’s license or Registry ID card was obtained fraudulently or that the license or identification card possessed by a person does not match that person’s true identity.

When the Special Investigations Unit of the Registry of Motor Vehicle, which is also known as the Enforcement Services Unit, receives a license fraud report, the RMV will schedule a Comp. Fraud. Lic. / ID Hearing. These Complaint Fraudulent License (CFL) hearings are only conducted at 25 Stuart Street / 10 Park Plaza in Boston.

Anyone who fails to appear for a license fraud hearing will have his or her right to operate revoked indefinitely until the individual personally appears before a hearing officer at the Special Investigation Unit. The Registry’s Enforcement Services Unit will place a hold on the person’s record and no transactions will be allowed until the hold is lifted by Enforcement Services.

The RMV may impose a license suspension or revocation whenever a hearing officer determines that a person fraudulently used or obtained a Massachusetts Driver’s License, Learner’s Permit, or Identification Card. In addition to the RMV’s discretionary suspension, a separate one-year license suspension will be automatically imposed, by operation of law, whenever a driver has been convicted of license fraud in violation of G.L. c. 90 Section 24B, which is a felony that carries a maximum sentence of up to 5 years in state prison. Even without a criminal conviction, the RMV may impose a suspension for if a Hearing Officer determines that an individual fraudulently used or obtained a license, permit, or ID card. In some cases, the Registry can suspend and prosecute even if the attempt was unsuccessful and no credential was ultimately generated. This is because the crime is complete when a person provides false information in any application for a license, permit, or ID card.

 

Clearing National Driver Register Revocations

The National Driver Register (NDR) is administered and overseen by the United States Department of Transportation (DOT) National Highway Traffic Safety Administration (NHTSA). The purpose of this system is to remove dangerous drivers from the roadways by sharing certain information between states. The law governing the NDR requires state driver licensing officials, such as the Massachusetts Registry of Motor Vehicles, to submit data on drivers whose privilege to operate a motor vehicle has been denied, suspended or revoked for cause, or who have been convicted of certain serious traffic related violations, such as DUI.

Although States use the NDR as part of their driver licensing process, it is the responsibility of the individual States to maintain the accuracy of the data submitted to the NDR. The NDR functions as the central repository of the data but cannot make any changes to this data, which is submitted by Motor Vehicle Departments across the country. The States maintain the sole responsibility for the issuance and renewal of all driver licenses; which includes suspension/revocation actions that have been taken against your driver privilege. Reinstatement requirements must be resolved directly with the State which has taken the action against your license.

This means that you must deal with the state where the problem originates and reinstate your right to operate in that state prior to attempting to reinstate here in Massachusetts.

3 Surchargeable Event License Suspensions

When your Massachusetts Registry record reflects that you have been found responsible for 3 Surchargeable Events within a specified period of time, based on court finding dates and at fault accident surcharge dates, MassDOT will require you to attend and successfully pass a Driver Retraining Program within 90 days of your receipt of the notice of intent to suspend. Pursuant to G.L. c. 175, Section 113B,  if you fail to take and pass the required class or classes, the Registry will automatically and indefinitely revoke your right to operate all motor vehicles in the Commonwealth of Massachusetts. The Registry will suspend your license on the date listed in the notice of intent to suspend without further notice.

A suspension for 3 Surchargeable Events will remain in effect until you complete the mandatory Driver Retraining Program. The National Safety Council (NSC) conducts this program. If you are legally required to take the class or classes, you will receive a registration packet from the NSC relative to the required Driver Retraining Program. If you do not receive this packet, you can visit the NSC website or you can call them by phone at 1-800-215-1581.

You do have the right to a hearing any time your license is scheduled for suspension and you have the right to be represented by a lawyer. However, when it comes to 3 Surchargeable Events, in most cases, the only issue that will be addressed at this hearing is the accuracy of your Massachusetts driving record. If you feel that an error has been made and you wish to challenge the accuracy of your driving record, you will be required to present acceptable documentary evidence to refute the contents of your record.

Hearings are held on a walk – in basis and at the RMV Customer Service Centers located in Braintree, Lawrence, Springfield, Worcester, Fall River, Wilmington and 136 Blackstone Street, Boston, 3rd floor.

You can avoid having your license taken for 3 Surchargeable Events by taking the required class(es) prior to the suspension going into effect.

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.