Keep your Mass. Driving Record Clean

mass_driver_historyFor those seeking to become police officers, correctional officers, or firefighters, a clean driving record is imperative. This also holds true for truck drivers, those who drive CDL vehicles, and certain other government and private sector employees. 

The Massachusetts Civil Service Commission has upheld employers’ decisions not to hire a candidate who scores well on a civil service examination based on the candidate’s Massachusetts driver history. The Commission has ruled that a poor driving record is reasonable justification for a bypass of a candidate. See McGrath v. Lowell, 22 MCSR 560 (2009); Torres v. Lowell, 22 MCSR 558 (2009); Campbell v. Boston Fire Dep’t, 22 MCSR 489 (2009); Jones v. Boston Police Dep’t, 22 MCSR (2008). 

Records which contain chemical test refusals, DUI convictions, drunk driving arrests, license suspensions, moving violations, operating to endanger charges, operating after suspension incidents, driving on a revoked Mass. license, 4 year habitual traffic offender revocations have all been used against candidates for employment in police, fire, and corrections jobs. 

For example, in one case, Franklin v. City of Leominster, the Mass. Division of Administrative Law Appeals ruled as follows: 

I agree that Mr. Franklin’s driving record is exceedingly poor, verging on dangerous. Mr. Franklin’s license has been suspended three times since he first received it in 1998, most recently in 2009 for refusing a chemical test after being stopped by police. Mr. Franklin pled guilty to charges of driving under the influence in 2004. Mr. Franklin has also been issued citations for multiple car accidents and moving violations. In 2007, Mr. Franklin drove his car over a curb while texting, causing property damage to a tree and signs, and striking objects with such force that his car’s airbag deployed and his tires were shredded. On that occasion, Mr. Franklin was issued citations for leaving the scene of an accident, property damage, failure to stay in marked lanes and reckless operation of a motor vehicle. In 2006, Mr. Franklin was found responsible for failure to keep right. Prior to his driving under the influence conviction in 2004, Mr. Franklin had accumulated surchargeable violations that included three failures to stop, two speeding violations, two failures to stay in the right lane, three additional car accidents, and two instances in which he failed to produce his license and registration. 

Mayor Mazzarella testified that driving is “extremely important” in performing duties as a Leominster firefighter, particularly in the first five years. A valid Massachusetts driver’s license is a prerequisite to working as a firefighter in Leominster. Much of the driving done by firefighters on duty is done under stressful conditions. Because of the relatively small size of the Leominster department, every firefighter must be able to operate all of the department’s vehicles, regardless of whether such operation is part of the employee’s ordinary duties, at any moment. The city must consider the physical dangers, logistical problems and potential legal liabilities that might arise from employing an applicant with a poor driving history. A firefighter with a pattern of past license suspensions would be unable to perform his duties, should his license again be suspended or revoked. 

Mayor Mazzarella was reasonably justified in bypassing Mr. Franklin because of his poor driving record. Mr. Franklin’s three license suspensions, chemical test refusal, DUI, multiple accidents and numerous moving violations make it reasonable to believe that Mr. Franklin was at high risk for causing injury to others or their property. Additionally, Mr. Franklin’s three past license suspensions indicate that his license may be suspended or revoked in the future, which would stop Mr. Franklin from discharging all of his duties.

This case illustrates the importance of maintaining a clean driving record. A lawyer who specializes in Massachusetts Registry Appeals such as Brian Simoneau, Jeanne Koehr, or Paul Watkins can help you do that. 

Maine Restricted Work Licenses for DUI Suspensions

work_licenseMass. residents who are arrested for DUI in the State of Maine may be able to get back on the road with a hardship license, which is known as a work-restricted license in Maine.  These licenses are available so that people who have had their licenses or right to drive suspended due to a Maine DUI arrest can get to and from work and drive as part of their work-related duties. A restricted license will also allow the driver to get to and from his or her assigned DUI alcohol education program.

Work licenses are only available if the driver has not had a drunk driving license suspension within the past 10 years and where there is no breathalyzer refusal.  Where the driver’s BAC is .20 or higher, he or she must convince the Secretary of State’s office that he or she has addressed any alcohol issue which resulted in the high blood alcohol content. 

Restricted work licenses should not be confused with “conditional licenses.” In Maine, conditional licenses are issued to those who have been convicted of DUI. These are “zero tolerance” licenses, meaning that the license holder cannot have any alcohol in his or her system.

If you are a Massachusetts resident and you get a DUI in Maine, the State of Maine will revoke your right to drive. If the Massachusetts Registry of Motor Vehicles receives notification of this, the Registry will indefinitely suspend your Massachusetts license. However, if you are able to obtain a Maine restricted license, you may be able to reinstate your Mass. license by going to the Board of Appeal

For more information on Maine work-restricted licenses, see Maine Revised Statutes, Title 29A, § 2503.

Breathalyzer Refusals in Mass.

To avoid a “breath test refusal” license revocation in Massachusetts, those arrested for drunk driving must provide two long and continuous breath samples, so that the breathalyzer registers the air volume as sufficient and produces a BAC result.

Massachusetts police departments use breathalyzers manufactured by Draeger Safety Diagnostics, Inc. Some Departments use the Alcotest 7110 MKIII-C and all Massachusetts Police Departments are transitioning to the Drager Alcotest 9510. Both of these units require a considerable amount of breath to operate. The Alcotest’s infrared chamber captures and analyzes the breath sample provided, which consists of deep lung air. Both breathalyzer models require 1.5 liters of breath volume to register BAC readings. If a person does not blow long or hard enough, the breathalyzer will not produce a blood alcohol reading and the police will consider the driver’s conduct a “refusal.” Police officers have been instructed that failure to provide a proper breath sample constitutes a “refusal.” However, this definition of a “refusal” may be too broad.

Sometimes, the failure to provide sufficient breath samples is intentional. The driver deliberately does not blow long or hard enough, so the breathalyzer will not record his blood alcohol content. However, in other cases, the driver cannot provide a sufficient sample due to a respiratory or other medical condition. For example, those with COPD, emphysema, asthma, lung cancer, or related respiratory conditions may not be able to blow long or hard enough to satisfy the breathalyzer. Also, there have been documented cases of women over 60 years of age being charged with chemical test refusals because they were physically incapable of providing the required sample of 1.5 liters of breath.

In order to avoid a license suspension ranging from 6 months to life, breathalyzer refusal suspensions should be appealed to the Registry, District Court, or Board of Appeal. The avenue of appeal will depend on the suspension reason and type of appeal. If you have received a letter from the Mass. RMV regarding a chemical test refusal suspension, you should contact a lawyer, such as Attorney Brian E. Simoneau, who has successfully challenged a large number of breathalyzer refusal suspensions and gotten his clients’ licenses reinstated.


NY DUI & DWAI Suspensions for Mass. Drivers

OLYMPUS DIGITAL CAMERAMassachusetts drivers who have the misfortune of being arrested for DUI in New York may be able to benefit from a recent New York Court Ruling where it was determined that a New York Court has the legal authority and power to grant a hardship license to an out-of-state driver, whose right to drive in New York was suspended as a result of his DWI arrest. The out of state driver in the case was licensed in New Jersey and charged with both DUI and Driving While Ability Impaired (DWAI).

Under New York Law, an out-of-state defendant may be issued a “conditional privilege of operating a motor vehicle in New York,” so long as he or she participates in an alcohol education program. This is good news for Massachusetts residents who are arrested for DUI in New York, as I have successfully used the granting of out of state driving privileges to convince the Mass. Board of Appeal to grant hardship licenses here in Massachusetts.

In ruling that out of state drivers could be issued New York Hardship Licenses, the court recognized that the same law which authorizes New York to suspend the driving privileges of a non-resident allows it to grant hardship relief. However, the person seeking the hardship license must still demonstrate an “extreme” need for a license. The New York Hardship Licensing Law, VTL 1193 (2) (e) (7) (e), defines an “extreme hardship” as “the inability to obtain alternative means of travel to or from the licensee’s employment.”

New York also appears to grant conditional licenses, which are different from hardship licenses. Issued pursuant to Vehicle and Traffic Law § 1196 [7], which the New York State Legislature enacted on April 15, 1988 and which the Governor signed on November 1, 1988. Under this law, the New York State Department of Motor Vehicles can grant conditional licenses, which are only valid for the conditions established by the New York DMV.

Massachusetts residents who are convicted of DUI or DWAI in New York can be considered for conditional driving privileges upon enrollment in the New York Drinking Driver Program. The program includes alcohol screening, classroom participation, and group discussions. For drivers who are identified “at risk,” the program may also include an alcohol evaluation and substance abuse treatment. After finishing the program, you will receive a Notice of Completion and a copy will be sent to the NY DMV. It is critical to retain this important document for later use at the Mass. RMV or Board of Appeal. 

Anyone convicted of DUI or Driving While Ability Impaired (DWAI) or those who refuse a breathalyzer must pay a New York “Driver Responsibility Assessment” of $750.00. The NY DMV will not clear your record in the National Driver Register until this fee is paid.

DUI Attorney Jeanne Koehr, a former member of the Division of Insurance Board of Appeal is admitted to practice in both New York and Massachusetts, where she handles license suspension and reinstatement cases.

False Licenses in Massachusetts

comp_fraud_lic_id_massMassachusetts was the first state to issue driver’s licenses beginning the practice in 1907. Since then, a RMV Identification card or driver’s license has become the most commonly used ID in the United States, essential for driving, applying for employment, dealing with police, entering age-barred venues, traveling on planes, purchasing age-barred products such as alcohol, using checks and credit cards, etc.

In order to get a Massachusetts driver’s license or identification card, the Registry requires applicant’s to have a valid social security number. The Registry compares Social Security Numbers provided with official Social Security records in order to find mismatching information that might indicate the misuse of a (SSN) to falsely obtain a driver’s license or RMV ID card. When this happens, the Registry sends a letter to the applicant indicating “Comp. Fraud Lic/ID.” This means that the RMV has received a complaint, usually from the Mass. State Police, that person obtained or tried to obtain a false license or ID.

As part of the state’s anti-terrorism and “Real ID” efforts, special unit of the Massachusetts State Police uses facial recognition software and technology provided by L1 Identity Solutions to find license fraud by comparing facial images on license records. When the computer finds someone’s photograph on two different license records, the Mass. State Troopers in the unit are notified. After viewing the images and confirming that one person received or tried to get two different licenses or ID cards, a “Comp. Fraud Lic/ID” case is opened and both licenses are indefinitely revoked.

The Massachusetts Registry complies with the Real ID Act, which establishes minimum standards regarding driver’s licenses and Registry IDs. A license or identification document that does not meet certain standards will not be valid for boarding airplanes, opening bank accounts, entering government buildings and all other arenas where valid federal ID is required. These standards include, among other things, clear rules about what documents will be required to obtain ID; a requirement that the ID display full legal name, gender, date of birth, a digital photograph, an identification card number, an address, and a signature; machine-readable technology with minimum data elements defined by the Act’s regulations; and anti-fraud elements designed to prevent counterfeit.

To protect the security and integrity of licenses, and find fake licenses or IDs, motor vehicle departments use “batch checking.” Batch checking is the practice of verifying identification documents and seeking out fraudulently obtained licenses or identification cards. To accomplish this, different government agencies compare records to find individuals with non-matching information in various systems. For example, in 2004, several states, including New York began to compare their DMV records with Social Security records to identify individuals with mismatching information. Within the first few months, the practice identified over 300,000 people in the state with information on their DMV IDs that was somehow different from what the Social Security Administration had in its records associated with that SS number.  These people received letters warning them that their licenses would be suspended, and many ultimately lost their right to drive.

Providing false information to the Registry on a license or ID application is a felony which carries a potential sentence of up to 5 years in state prison and an automatic driver’s license revocation. If you have received a letter from the Mass. Registry indicating that you right to drive is going to be indefinitely suspended due to a Comp. Fraud Lic/ID, you should contact a lawyer such as Attorney Brian E. Simoneau.

You cannot get your license or right to drive reinstated, or get a hardship license, unless and until you personally appear for a hearing with the Registry’s Special Investigations Unit. There is no way to get around this hearing requirement. You are entitled to be represented by a lawyer and, given the potential penalties, it is strongly recommended.

New Hampshire SR-22 Financial Responsibility Requirements

SR_22_INSURANCE_NEW_HAMPSHIREThe State of New Hampshire requires proof of financial responsibility (liability insurance) which is also known as an SR-22 certificate for 3 years following a first offense DUI conviction. For a second offense DUI conviction, SR-22 insurance is required for 3 years following the date you are eligible to have your license or right to drive in New Hampshire reinstated.  The SR-22 requirement cannot be waived for Massachusetts residents, even though the Mass. RMV does not require SR-22 insurance certificates.

The purpose of the SR-22 requirement is to protect those on the road in New Hampshire by requiring drivers who have committed certain violations to obtain adequate automobile insurance coverage and to provide proof of coverage in the form of a SR-22 insurance certificate.

Massachusetts does not require SR-22 insurance, because liability insurance is compulsory in Massachusetts for everyone.

New Hampshire requires SR-22 insurance even if you do not own a vehicle. In those cases, you have to file an operator’s SR-22 certificate. The financial responsibility / SR-22 processing unit for the NH DMV is located at 23 Hazen Drive in Concord, NH. You can reach them at 603-227-4010.

The NH DMV requires SR-22 certificates for those convicted of DUI, leaving the scene of an accident, MV homicide, and 2nd offense convictions for excessive speed, and reckless operation. Out of state convictions for the above-listed offenses trigger SR-22 insurance requirements. When a Massachusetts resident’s right to drive in New Hampshire has been suspended for failure to prove proof of financial responsibility (FR), the NH DMV will notify the Massachusetts Registry and the RMV will indefinitely revoke the driver’s license.

The Mass. RMV will require clearance in the NDR prior to reinstating a driver’s license which was suspended or revoked here. However, drivers usually cannot get insurance without a valid driver’s license. In situations such as these, the driver should ask for a clearance letter from the DMV in Concord, NH stating that other than the SR-22 FR requirement, the driver is otherwise clear in New Hampshire.

If you need assistance with the Massachusetts license suspension consequences associated with a NH DUI, contact Attorney Brian E. Simoneau using the contact form on this website.

How the National Driver Register (NDR) Works

OUT_OF_STATE_REVOCATIONThe National Driver Register (NDR) is a nationwide repository of information on drivers maintained by the National Highway Traffic Safety Administration. It contains approximately 42 million records. It allows Registries and DMVs to share information on problem drivers identified in each state, such as those convicted of OUI. Drivers are identified in the NDR through name, birth date, Social Security number, gender, height, weight, and eye color.

DMVs are required to enter data into the NDR within 31 days after the state DMV is notified of a conviction for DUI, drunk driving, OUI, or another disqualifying offense. In Massachusetts, courts are required to notify the Registry whenever someone is convicted of a crime which would trigger a license suspension. The Registry is required by law to enter that information into the NDR. At minimum, the Registrar must send the driver’s legal name, date of birth, and gender. It may also send a driver’s height, weight, and eye color to assist the other states in identifying the correct person.

Whenever a person applies for a license, or renews a license, the RMV is required to check the NDR to see if the person’s license or right to drive has been suspended or revoked in any other state. Also, governmental agencies such as the Coast Guard, FAA, the Federal Railroad Administration and private companies can access the NDR. DMVs search the NDR based on last name, first initial, and date of birth.

One of the primary goals of the NDR is to insure that the suspensions and revocations are entered into the system in a timely manner. However, millions of suspensions or revocations were not recorded in the NDR until at least 1 year after the conviction entered. Likewise, records were not removed from the NDR in a timely manner, which prevented drivers from reinstating their licenses, when they should have been allowed to do so.

The NDR was implemented to prevent someone with a revoked or suspended license from going to a different state to get a new license. When a person is blocked in the NDR he or she is referred to the state where the block has originated to have it removed. If you are dealing with a NDR indefinite suspension or revocation, a lawyer may be able to help you get your license renewed or reinstated. Call for more information.

NH DWI Consequences for Mass. Residents

NH_DWI_MassMany Massachusetts residents have the misfortune of being charged with DUI in New Hampshire. When this happens, the driver must satisfy both the New Hampshire DMV and the Massachusetts RMV, prior to getting his or her license reinstated.  Those who are convicted of a first offense DUI in New Hampshire will be fined at least $500.00, found guilty of a Class B Misdemeanor, and required to complete an impaired driver intervention program.

Persons with prior DWI convictions must complete the DUI multiple offender intervention program (M.O.P.) or an equivalent 7-day residential intervention program which has been approved, in advance, by the State of New Hampshire. A driver must furnish proof of successful completion of an Impaired Driver Intervention Program (IDIP) prior to restoration of his license or right to operate.

A NH DUI conviction carries a license revocation from at least 9 months up to 2 years, at the discretion of the court. However, when the DUI defendant enters an approved DUI program, the court may suspend up to 6 months of the license revocation. The court may also require the drunk driver to submit to random urinalysis or such other tests as the judge may deem appropriate.

The six-month suspension for early treatment option of, does not apply to the mandatory one-year license revocation period for DWI offenders under the age of 21.

In some cases, a New Hampshire DUI can be reduced from a misdemeanor to a violation. This can only be done at least one year after the date of the conviction. In deciding whether to reduce a NH drunk driving conviction, the judge may consider the person’s subsequent driving history, any evidence of drug or alcohol treatment, the hardship that having a criminal record may cause for the OUI defendant, and any other factors that the judge deems relevant.
The New Hampshire Courts have determined that a DUI Massachusetts is considered a reasonably equivalent offense for sentencing and suspension purposes when someone with a Mass. OUI conviction commits a DUI in New Hampshire.

Getting back on the road after a NH DUI conviction will require completion of an alcohol program and satisfying both the Mass. RMV and the NH DMV.  A lawyer can help you do this in the quickest and most efficient way possible.

CT DUI First Offender Program

hardship_license_massUnder the provisions of section 54-56g of the Connecticut General Statutes, a person charged with operating a motor vehicle while under the influence of liquor or drug or while having an elevated blood alcohol content may apply for a Pre-Trial Alcohol Education Program. If your application to this program is granted, it may be possible to have your DUI case sealed to the public and, upon successful completion of the DUI program, you may be able to get the case against you dismissed. When your CT DUI case is sealed, no person can get any information from the Court Clerk’s office regarding your file.

Once an alcohol evaluation is completed, the driver is assigned to either 10 or 15 alcohol classes. If you are assigned to 10 DUI classes, the fee for the course will be $350.00. If you are granted 15 classes, then the fee is $500.00. You must begin an alcohol intervention program or substance abuse treatment program, according to the evaluation report and the court order, within 90 days from the day the court issues the order, unless you are granted a delayed entry. When you finish the alcohol intervention program you will be placed in a treatment program recommended by a provider .under contract with the Department of Mental Health and Addiction Services (DMHAS) or you will be placed in a state-licensed treatment program which meets standards set by DMHAS. Also, if court ordered, you must participate in at least 1 (one) victim impact panel.

If you decide to enter the program after the suspension of your license is over, you must tell the tell CSSD the date your license was suspended and the length of the suspension.

In order to complete the course, you must attend all the Alcohol Education classes, which were ordered. Because even a single absence can cause you to violate the program, you must make sure you do everything that you are told. By law, if you do not complete the required alcohol classes, your case must be unsealed and immediately placed on the trial list. This means there will be no further negotiation on your CT drunk driving case will occur.

You cannot get the Pre-Trial Alcohol Education Program if you have been assigned to the program within the preceding ten (10) years for a violation of General Statutes § 14-227a. The program is available only for first offenders and any other DUI convictions in any other state will disqualify you. Finally, the CT alcohol program is not available to those who committed DUI offenses while operating a commercial motor vehicle.

In addition to DUI license suspensions, for refusing to take a Chemical Alcohol Test Under Connecticut General Statutes Section 14-227b, the State of Connecticut will impose a 6 month license suspension for refusing the breath test, for a first offense DUI.

To get your license reinstated in Connecticut, you must contact the CT DMV as follows:

Department of Motor Vehicles
Driver Services Division
60 State Street
Wethersfield, Ct 06161-2525

The CT Suspension Telephone Center operated 24 hours a day, 7 days a week. You can reach the Center at (860) 263-5720 for CT license suspension and reinstatement issues.

Breathalyzer & Chemical Test Refusal Suspensions Reversed

SOUZA_CWOF_REGISTRYIf the RMV suspended or revoked your license for a chemical test refusal (CTR), which is also known as a breathalyzer refusal, for more than 180 days, and you have a previous DUI, the Registry may have improperly suspended your license.

The Registry has been using prior DUI cases which were resolved not by convictions, but by admissions to sufficient facts and continuances without findings to extend breathalyzer refusal suspensions from the 180 day minimum to 3 years, 5 years, and life.

The use of a prior DUI case which was resolved by an admission to sufficient facts and continuance without a finding CWOF to extend a chemical test refusal suspension appears to be unlawful. Indeed, on April 5, 2006, Lynda M. Connolly, Chief Justice of the District Court, issued a memorandum to District Court Judges, Clerk-Magistrates, and Chief Probation Officers regarding “Chapter 122 of the Acts of 2005: ‘Melanie’s Law.’”  In it she stated, “[t]he extended periods of suspension require a previous conviction; a program assignment, as a prior drunk driving disposition, will not trigger extended test refusal suspension.”

Nevertheless, the Registry counts admissions to sufficient facts and CWOFs as convictions, to impose enhanced suspension penalties on those who exercise their legal rights to refuse to submit to a breathalyzer test. Seven Massachusetts Superior Court judges have ruled that reliance on prior CWOFs to increase chemical test refusal suspensions is legally wrong and they have ordered the Registry to reduce these license suspensions.  In ruling against the Registry, these judges have ruled that if the Legislature wanted prior OUI cases which were continued without a finding and eventually dismissed to count as OUI “convictions,” for purposes of the implied consent law, it would have said so.

There are numerous cases regarding this issue pending in various Superior Courts and the highest court in Massachusetts, the Supreme Judicial Court is scheduled to ultimately rule on the legality of treating prior CWOFs as convictions. My office has been heavily involved in this issue from the start and I was pleased to have been able to file an appellate brief on this important legal issue.

If your license was suspended or revoked due to a breathalyzer or chemical test refusal  for 3 years, 5 years, or life, I urge you to contact my office for a free review if your situation. You may be entitled to credit for time served on your refusal suspension to be applied to any DUI suspension. You may also be entitled to a full license reinstatement.

Attorney Brian E. Simoneau