About Attorney Brian E. Simoneau

Massachusetts RMV Lawyer

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If your license has been revoked due to a diabetic episode, you will have to convince a Registry Hearings Officer that your diabetes is under control to such an extent that you are safe to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.

Avoiding Ignition Interlock Violations

If you have a Breath Alcohol Ignition Interlock Device (BAIID) installed in your motor vehicle, you should take precautions to avoid an IID violation, which can result in the revocation of your Massachusetts Driver’s License. IIDs are not foolproof and they sometimes register false positive readings. Fortunately, there are simple things that you can do to reduce the probability of a false positive reading.

First, if you are sending your vehicle out for service, you should notify the the mechanic or repair facility that your vehicle has an IID and that you are responsible for any violations. With thousands of ignition interlocks in operation in Massachusetts, most repair facilities are probably familiar with the devices.

When vehicles are being serviced, it is common to have errors such as voice tone aborts and missed rolling re-tests. You may also have alcohol readings if the repair person has alcohol on his breath. Finally, your IID may register tampering, circumvention, voltage fluctuations, and battery disconnections. It is absolutely imperative to get documentation from the repair facility showing when your vehicle was brought in for service, the repair work done, and when the vehicle was returned. The paperwork should also reflect the odometer mileage.

In the event that a violation occurs while the vehicle was being serviced, you will be able to demonstrate that at an ignition interlock violation hearing by producing the paperwork. This may prevent a long-term license revocation.

Next, you should not have anything in your mouth except water, for the 15 minute period immediately before trying to start your vehicle. Ignition interlock devices can mistake food products, mouthwashes, candy, gum, mints, cough drops, and other consumables as alcohol. To prevent this from happening, you can rinse your mouth out with water and consume nothing by mouth prior to blowing into the IID.

Finally, you should notify anyone who operates your vehicle that you will be initially held responsible for any alcohol readings or ignition interlock infractions or violations. To avoid major problems with the Registry, anyone who drives your car should not consume any alcoholic beverages prior to driving or attempting to start the car. The Registry operates on the presumption that the person with the “Z” restriction on his or her license was the operator of the car. In order to overcome this presumption, at your Ignition Interlock Violation Hearing, you must produce evidence to show that you were not operating the vehicle.

If you are driving on an ignition interlock restricted hardship license, you will need to use the IID for a minimum of 2 years after having the “H” restriction from your license. This means that you should have the hours taken off as soon as your suspension expires. The 2 year mandatory IID period will commence only when the “H” restriction is removed from your driver’s license.

If you have questions regarding ignition interlock violations, contact a lawyer at 508-656-0057 for a review of your situation.

Massachusetts Consequences for Out of State DUI

If you are the holder of a Massachusetts Driver’s License or you are a resident of Massachusetts, an out of state DUI or DWAI conviction will result in the suspension of your Massachusetts license. This is because General Laws c. 90, § 22(c), requires the Mass. Registrar of Motor Vehicles to give the same effect to out-of-state motor vehicle violations as if they had occurred in Massachusetts for the purpose of license revocation and suspension. The combination of the Massachusetts OUI Statute and G.L. c. 90, § 22(c), require the RMV to treat out-of-state convictions by way of guilty pleas for alcohol-impaired driving as drunk driving convictions under the OUI Statute for the purpose of license suspension.

The elements of the out of state drunk driving offense do not have to precisely match the elements of the offense in Massachusetts. Therefore, the RMV is legally entitled to treat substantially similar offenses as “like violations” which trigger Massachusetts license suspensions, regardless of the punishment imposed by the Motor Vehicle Department where the violation occurred. Also, under Massachusetts law, a plea of guilty or nolo contendere counts as a conviction, regardless of where or when the plea or conviction entered.

For example, the Mass. RMV suspended Joseph Bellino’s Massachusetts driver’s license in 1992 pursuant to G.L. c. 90, § 24D, the first offender law,  for operating while under the influence of alcohol. In 1996, Bellino was convicted in New York of driving while ability impaired.  Bellino appealed his license suspension, arguing that the Registry had no legal authority to suspend his license in Massachusetts for the New York DWAI conviction, counting it as a second offense. The Superior Court ruled that the Registrar properly suspended Bellino’s license for an additional period of two years, pursuant to G.L. c. 90, §§ 22(c) and 24(1)(c)(2), after counting the New York DWAI conviction as a second OUI offense.

If you are faced with an out of state DUI incident, you or your out of state lawyer should contact a Massachusetts lawyer who is familiar with the workings of the Mass. RMV for advice regarding the consequences which you will face in Massachusetts. In some cases, it is possible to get out of state suspensions reduced or eliminated.

Registry Imposes Lifetime CDL Revocation for DUI & Prior Refusal

TT_UNITToday I received this inquiry from an employer of a CDL holder:

I have a rather simple question (I think) regarding one of my employees, who is a truck driver in Massachusetts. He was charged with a DUI several years ago, went to court and it was declared not guilty. A few years later he was charged again with a DUI and it was declared continued without a finding (CWOF). To my understanding, with this background, he should have been able to get his CDL back a year after the later offense (where the first was Not Guilty). The RMV is telling him he has lost it for life. Just wondering if you could shed some light on this for me and him. I appreciate your time! Thank you.

The answer:

I suspect that the Commercial Drivers License Holder refused to submit to a chemical test in connection with his first OUI incident. Under both Federal Law and G.L. c. 90F Section 9, which is the Massachusetts law governing CDL penalties, suspensions, and disqualifications, a breath test refusal counts as a disqualifying incident. The only exception to this rule is that if the DUI and breathalyzer refusal occur in the same incident, it will be counted as one triggering violation. Here, I suspect that the truck driver refused to take the breathalyzer and the Registry is rightfully counting this refusal as one triggering event. The not guilty verdict does not prevent the Registry from counting the refusal against him. If he got the chemical test refusal suspension overturned by appealing to the judge who presided over the DUI trial, he may have a chance to get relief by going before the Board of Appeal of the Division of Insurance. However, it appears in this case that no such judicial relief from the breathalyzer refusal suspension was granted.

When the CDL license holder admitted that there were sufficient facts for a conviction, was assigned to an alcohol education program for drinking drivers, and had his OUI case continued without a finding, this counts as a second triggering event which would generate a lifetime revocation of his Commercial Driver’s License.

Appealing a 5 year Chemical Test Refusal Suspension

Here’s a situation involving a 5 year breathalyzer refusal suspension.

I’m contacting you to seek your assistance in getting my license reinstated, at least  to some degree if possible. Living and working without the ability to drive is very challenging under these circumstances.

My story is as follows: Nearly a year ago to the day I was pulled over. The police officer walked up to my window as I was searching for my valid registration. It wasn’t located in the glove box as I had needed it for insurance purposes earlier in the week. The officer mentioned this in her police report as me talking away from her which was not the case at all. Upon locating the valid registration in my center console the officer took my ID and asked if I had been drinking to which I replied I had a couple. She went back to her vehicle returning however a short time later.

At that point she asked me to step out of my vehicle and led me away from the scene to a darker area on a slope. Still not knowing why I had been pulled over in the first place she immediately began conducting a field sobriety test. She began to explain the walk, pivot and return test of which I completed without issue. This was the first point where I noticed the officer’s irritation.

She then began the eye test asking me to follow her pen. I obliged however her irritation rose when she kept yelling to me to follow the pen. I was following her instructions however the pen was pulled out of my peripheral view negating my ability to look at it without moving my head. As she completed this test my irritation of the situation rose as the officer was rude and unprofessional.

She explained the final test, I had to raise my leg up 6 inches and count of by 1000-s until she told me to stop. I carried through to 18 and stopped out of frustration that the officer was obviously just going to leave me hanging up there. She yelled at me again for stopping so I resumed until she stopped the test several seconds later. At this point my frustration level was at its peak. She led us back to our vehicles where she instructed a second officer to ready the roadside breath test to which I said don’t bother. Whether that was the right thing to do or not didn’t matter at the time as her un-professionalism and rudeness left me frustrated.

She then arrested me for DUI and at that time I asked her why she pulled me over. She said for marker light violation. Which is a complete fabrication as all the lights on my vehicle were operational at the time. At the station I was not given the option of taking the breathalyzer, not provided with any explanation as to the consequences of not doing so and no documentation for me to sign off on refusing. I was released on PR as soon as booking was completed. I ended up finding out the next day the suspension would be 5 years long.  As there was no mention by the officer of blood shot eyes, slurred speech, unsteadiness on my feet, odor of alcohol, etc. I wasn’t sure the exit order was valid or legal however my attorney didn’t seek suppression during pre trial. My case at any rate was dismissed this past May as the arresting officer had been terminated from the department for her mishandling of dui arrests. Based upon my view of the exit order I wanted to appeal to the registry however by the time I got the hearing notice from my Post Office Box, the 15 day period had since expired. I hadn’t realized there was a limit at the time to which to appeal.

My life a year later has changed profoundly as I am embarking on a new career and bringing a child into the world both of which require my ability to drive.

The Answer:

You can challenge your breathalyzer refusal suspension only between 9:00 A.M. and 3:00 P.M. within fifteen (15) days of your DUI arrest. The Registry only conducts breathalyzer refusal hearings at the Boston Branch which is located at 630 Washington Street and scheduled to move to 136 Blackstone Street in September of 2014. You do not need an appointment for a chemical test refusal (CTR) hearing.  You must appear in person and you have the right to be represented by a lawyer. You can present any witnesses, documents, or other evidence you wish to have considered. Once the hearing record is closed, you cannot present any additional evidence. The law does not provide for any extension of this 15 day appeal period, and no letter, phone calls, or other communication to the RMV will serve to extend the CTR appeal period beyond the 15 days or allow for a hearing to be conducted at any location other than the Boston Branch of the Registry.

Unfortunately, absolutely no hardship licenses or Cinderella or work licenses are authorized by law during a breathalyzer refusal suspension unless he Operating Under the Influence charge has been properly and legally resolved pursuant to G.L. c. 90 § 24D, which applies only to first offenders or “second chance first offenders.” Melanie’s law requires that the CTR suspension is served prior to any resulting DUI suspension. This means that the suspensions are served consecutively and not concurrently.

In the case listed above, the only recourse is to petition the District Court Judge who presided over the OUI trial for a return of the driver’s license, because the OUI charge was dismissed. There is a presumption in favor of returning the license, but it is not automatic. There is no other way to appeal the suspension so long after it was imposed and there is no possibility of a hardship license.

Reckless Driving in Virginia Triggers Massachusetts Suspensions

VIRGINIAIf you are the holder of a Massachusetts Driver’s License or you are a Massachusetts resident, the Registry will treat any motor vehicle violations which you commit as if they had occurred in Massachusetts.  This may cause you to have your license suspended or revoked in Massachusetts for an offense which does not carry any loss of license in the state where the offense occurred.

For example, in the State of Virginia, if you exceed the speed limit by 20 MPH or you travel at a speed greater than 80 MPH, you can be found to have committed the offense of Reckless Driving. There is no automatic license loss associated with this offense in the Commonwealth of Virginia. In Massachusetts, however, a reckless driving conviction will trigger an automatic 60 day license suspension for a first offense.

I have recently received numerous calls and inquiries from Massachusetts residents who have been cited for reckless driving in the Commonwealth of Virginia. These unsuspecting motorists have paid reckless driving citations, not knowing that their licenses would be suspended in Massachusetts. In each of these cases, the Virginia Department of Motor Vehicles notified the Mass. RMV of the reckless driving citations and payments. These notifications have triggered automatic 60 day license suspensions. The motorists appealed the suspensions to the Suspension Unit of MassDOT and in all cases, the hearings officers have upheld the suspensions based on the out of state violations. The only recourse in these situations is to appeal the suspensions to the Board of Appeal of the Division of Insurance of the Office of Consumer Affairs and Business Regulation. Unlike the Registry, the Board of Appeal does not conduct hearings on a walk in basis. Therefore, the motorists will likely have to serve at least some of their suspensions prior to getting their “day in court.”

Likewise, the offense of careless driving in the State of Florida will also trigger a reckless driving suspension in the State of Massachusetts and the Registry has consistently upheld these suspensions, forcing the aggrieved appellants to seek relief from the Board of Appeal.