Hardship License Denial Upheld

registry_attorney_massachusettsIn the case of Given v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, the Middlesex Superior Court, the Middlesex Superior Court ruled that substantial evidence supported the Motor Vehicle Liability Board’s decision to not issue a hardship license to a driver with a suspended license. The driver had three violations of operating a motor vehicle under the influence. The driver had previously re-offended after receiving a hardship license, and the driver’s most recent discharge papers categorized him as at high risk to re-offend. The board expressed concerned that the driver remained a risk to public safety.

Fred Given has three convictions for operating a motor vehicle under the influence (“OUI”). His first two convictions were entered on October 14, 1994 and May 30, 1997, respectively. His most recent conviction was entered on October 31, 2006. On November 24, 2006, following the third conviction, the Registry of Motor Vehicles (“RMV”) suspended Given’s license to operate pursuant to G.L. c. 90, § 24(1)(c)(3) which mandates an eight year license revocation for a third OUI conviction. In December 2008, Given appealed to the Board and requested a hardship license.

Given was granted a hardship license once before, following his second OUI conviction in 1997. After a two-year suspension, Given completed the Middlesex D.U.I.L. program (the second offenders program) and was granted hardship relief. After his third OUI conviction in 2006, Given attended the second offenders program again. His 2006 discharge summary reflects an assessment that he is at a high risk for recidivism.

The Board held a hearing on January 14, 2009. At the hearing, Given testified to the following. Given owns a construction business. Since his driver’s license was suspended in 2006, he has been dependent on his partner for rides to and from work. His partner will soon retire and will no longer be an available source of transportation. Given is the sole financial support for his two children, aged 13 and 15. He provides $250 a week in child support to his ex-wife who is disabled with Crohns disease and unable to work or drive. Given testified that he has been sober since November 1, 2006 and that he attends four to five AA meetings a week.

On April 15, 2009, the Board affirmed the RMV’s eight year suspension of Given’s license, noting that Given had re-offended after receiving hardship relief on his two-year OUI suspension and completing the second offenders program in 1997. The Board also expressed concern that Given’s most recent discharge papers categorize him as at high risk to re-offend. The Board found that Given currently can get to and from work with his partner, and although Given’s partner is soon to retire, this type of inconvenience was contemplated by the Legislature when it enacted G.L. c. 90, § 24. Finding that Given has a life-long problem with alcohol, the Board expressed reluctance to issue another hardship license without substantial proof of ongoing aftercare following the second offenders program. Given did participate in the SMOC aftercare program in 2008, but the Board stated that it still had “concerns that Givens remains a risk to public safety” and invited him to obtain further proof of treatment and counseling, and to reapply in 2010.

A previously revoked license may be reinstated on the basis of hardship, however reinstatement shall be granted under such terms and conditions as the Board, in its discretion, deems appropriate and necessary. In this case, the Board balanced the degree of hardship alleged by Given against the degree of risk posed to public safety, and found that the balance weighed in favor of denying Given’s request. The purpose of a license revocation “is to protect the public from future harm by depriving the unsafe or irresponsible driver of his or her authority to continue to operate a motor vehicle.”

Given argues that he has demonstrated the need for a hardship license by virtue of his position as owner of a construction business, particularly in light of his family situation (he is the sole earner providing for two dependent children.) The Supreme Judicial Court has held that difficulty commuting to and from work is not enough to “tip the scales” in favor of a hardship.  In delivering its decision, the Board stated that the Legislature contemplated this kind of inconvenience when it decided that long license suspensions were a necessary measure to protect the public from dangerous drivers.

Thus, the Middlesex Superior Court ruled that, the Board’s decision was not arbitrary or capricious, an abuse of discretion, or otherwise violative of the law, and it was supported by substantial evidence. The Board’s decision was therefore affirmed.

Going into a Board of Appeal hearing with a discharge summary showing a high risk of recidivism, no real & substantial hardship, and a history which shows that the person seeking hardship relief was caught driivng under the influence while on a hardship license was probably not a good idea. The result here is not surprising.

Breathalzyer Refusal Appeal Hearings

mass_breathalyzer_refusal_lawyerUnder the so-called “Massachusetts Implied Consent Law,” drivers subject themselves to progressive administrative license suspension penalties each time they refuse to take a Breathalyzer test, after having been arrested for operating under the influence of liquor, when they have also had prior DUI convictions, no matter when or where any prior drunk driving convictions occurred.

Fortunately, drivers who are facing chemical test refusal suspensions have the right to appeal these suspensions to the Registry of Motor Vehicles, by attending Registry CTR hearings and appealing the revocations to the Board of Appeal. If your license was revoked because you refused to take a breath or blood test after being arrested for OUI, you can attend a CTR hearing between the hours of 9:00 A.M. and 3:00 P.M. within fifteen (15) days of your Massachusetts DUI arrest. Chemical Test Refusal hearings are ONLY conducted at the Boston Registry office, located on the fourth floor at 630 Washington Street. No appointment will be made; hearings are held on a walk-in basis only. You may appear and present any witnesses, documents, or other evidence you wish to have considered. There is no provision in the law for any extension of this time period, and no letter, phone calls, or other communications to the Registry will serve to extend this period beyond 15 days or to authorize a hearing at any location other than the Boston office of the Registry located at 630 Washington Street. You have the right to be represented by a lawyer at this hearing and legal representation is strongly recommended.
No hardship licenses are authorized by law during a breathalyzer refusal period of suspension, unless your criminal case has been properly disposed of pursuant to G.L. c. 90 § 24D, which allows for a “first offender” disposition, upon enrollment in the 24D Alcohol Education Program.  By law, this breathalyzer refusal suspension will be served consecutively with any other suspension arising out of the OUI charge.

In addition to appealing breathalyzer refusal suspensions to the Registry, within 15 days, you can also appeal the suspension to the Board of Appeal of the Division of Insurance and, if the Board rules against you, to Superior Court. When it comes to challenging breathalyzer refusal suspensions, I have extensive experience at all levels of the appeals process and I have obtained full license reinstatements for many of my clients. Fill out the contact form on this site for more information or call my office at 508-656-0057.

Breathalyzer Refusal & Failure Suspensions: Under 21

In accordance with G.L. c.  90 § 24(P), the Registry imposes administrative license suspensions for those under 21 years of age, for refusing a breathalyzer or taking a breathalyzer and registering a blood alcohol percentage of .02 or greater. Some drivers who have not been charged with DUI or any related offenses may apply for a waiver of this additional 180 day suspension by entering and completing a department of public health approved driver alcohol education program for youths.

You may obtain the name and location of the program nearest you by calling the Massachusetts drug and alcohol hotline at (617) 445-1500. You must provide written proof that you have entered completed the course at a hearing at the registry of motor vehicles.

This suspension is separate and distinct from any suspension that the court may order in the future as a result of any operation under the influence charge that you may be facing, and from any other suspension issued by the Massachusetts RMV.

The Registry of Motor Vehicles will run this administrative breathalyzer failure or refusal suspension concurrently with other suspensions. This means that, should a suspension be ordered by the court before this chemical test refusal or failure suspension has been completed, the remaining time on this suspension will be served after the suspension by the court has been completed.

This administrative breathalyzer refusal / failure suspension is imposed pursuant to G.L. c.  90 § 24(P), regardless of the outcome of any criminal charges that may have been filed.

If the RMV has suspended or revoked your license for a breathalyzer refusal, you may be able to appeal the suspension and get your license reinstated. Complete the contact form on this site for more information. 

Mass. Hardship License Letters

MASS_REGISTRY_HABITUAL_HARDSHIPHardship license procedures at the Registry and the Board of Appeal must be followed to increase your chances of getting a Mass. hardship or Cinderella license. Requirements for a hardship license include providing certain documents such a letter from your employer or acceptable proof of self-employment. For DUI suspensions, documentation showing proof of completion of a drug or alcohol education program, such as the 24D or DUIL program is also essential. Letters of recommendation which discuss the hardship license applicant’s character, family situation, background, accomplishments, risk to the public safety, and need to drive can also make the difference between getting a Cinderella license or having to serve the remaining portion of your suspension or revocation.

Where someone’s license is suspended for drunk driving, proof of attendance at AA, smart recovery, NA, or other similar self-help / group therapy meetings can be very valuable. These letters show that the hardship license applicant is taking on-going steps to prevent a relapse.

Where a the Mass. Registry has suspended or revoked a person’s license for a drug conviction, such as drug distribution, possession with intent to distribute, trafficking, or even simple possession of a controlled substance, such as marijuana, cocaine, oxycodone, Percocet, or any other controlled substance or illegal drug, evidence of clean drug screens can be critical.

In cases where the person seeking a hardship or work license is on parole or probation, a letter from the person’s parole or probation officer can be very helpful. The more detail included in the letter, the better. At minimum, it should state that there have been no parole or probation violations, and that the person is not prohibited from driving or trying to get a license as a condition of probation. The Board of Appeal requires that probationers provide a copy of the Board of Appeal hearing notice to the appellant’s probation officer.

Having the right documentation can make the difference between winning and losing.  When it comes to hardship licensing, Attorney Brian Simoneau works with his clients to insure that they have the right documents to satisfy Registry and Board of Appeal hardship license requirements. Other important steps include carefully reviewing the applicant’s driving and criminal records, addressing any issues such as open cases and unpaid citations, writing a detailed hearing memorandum which explains the situation and need to drive as well as the applicable law, and making a convincing presentation of the client’s case to the Board of Appeal or Registry of Motor Vehicles.

Hardship Licenses in California

dui_hardship_licenseLike Massachusetts, the State of California issues hardship licenses, which are known as “restricted driver’s licenses” in California, for those convicted of operating under the influence. Massachusetts residents who were arrested for DUI in California may be able to obtain these restricted driver’s licenses, so that they can legally drive here in Massachusetts.

In order to obtain such a hardship license, the applicant must submit proof of completion of an approved California alcohol education program, a SR-22 Insurance Certificate, and pay all required reinstatement and license re-issue fees.

The hardship license is restricted to those hours needed for employment and attendance of the required alcohol education program.

CDL license holders who were driving commercial motor vehicles at the time of the drunk driving arrest are not entitled to apply for California restricted driver’s licenses. Also, if the court has made a determination that the person convicted of DUI is not entitled to a hardship license, the DMV cannot issue such a license.

Cinderella & Hardship Licenses in Other States

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Getting back on the road in Massachusetts after an out of state DUI or license suspension can be a major headache.  Massachusetts residents and license holders often have trouble because they must satisfy the DMV in the state where the drunk driving offense occurred as well as the Massachusetts Registry of Motor Vehicles. 

G.L. c. 90 § 22(c) requires the Registry to revoke driver’s licenses issued here when the license holder’s right to operate is suspended or revoked in any other state or jurisdiction.  This means that if your license is revoked in any other state, the Mass. RMV is required to suspend or revoke your license here in Massachusetts. Also, G.L c. 90 § 22(c) requires the Registry to treat an out of state drunk driving offense as if it had happened here in Massachusetts, for license suspension purposes. This triggers a 1 year loss of license, which can sometimes be reduced to 45 days.

Fortunately, like Massachusetts, some other states grant hardship licenses which they may describe as provisional, temporary, restricted or Cinderella licenses.  Some states call these limited licenses restricted driving permits, work licenses, or work permits. No matter the title, the basic purposes of these licenses is to allow a person whose license was revoked or suspended to be able to get to and from work.  Where these hardship licenses are available, they are usually issued by the Department of Motor Vehicles (DMV). However, in North Carolina, for example, they are issued by the judge who presides over the DUI case.

In some cases, it may be possible to get the Massachusetts Registry of Motor Vehicles to grant a hardship license, even if the driver’s right to operate is suspended in another state and reported to Massachusetts through the National Driver Register (NDR).  Hardship, Cinderella, or restricted licenses are available from the following states: California, Florida, Indiana, Louisiana, Missouri, New York, North Carolina, and Oregon.

If you need help with a Massachusetts license suspension , contact a lawyer for a free review of your case.  You can reach Attorney Brian E. Simoneau by completing the contact form on this site or calling 508-656-0057.

Open Cases & Mass. Board of Appeal Hearings

BOARD_APPEAL_ATTORNEYYou should not appear before the Board of Appeal of the Massachusetts Division of Insurance at a hardship license hearing if you have open criminal or civil matters that may result in future suspension(s). You should contact a lawyer to review your driving and criminal records prior to filing for any hardship license hearing with the Board to determine if you have open matters. If you have any open criminal cases or civil motor vehicle infractions (CMVIs) that would trigger license suspensions if you were convicted or found responsible, you should not appear before the Board. In situations such as this, the Board will either affirm the suspension and deny you a hardship license or not hold a hearing and place your case on hold until the open matters are resolved. The Board generally does not hear hardship appeals when other cases are pending, because it would make little sense to grant a hardship license only to have a new suspension supersede it.  Contact Attorney Brian E. Simoneau at 508-656-0057 or via e-mail (brian@simoneau.com) if you would like more information.

Hire an Attorney Before your Board of Appeal Hearing

Mass_RMV_lawyerI get lots of calls from people who made the mistake of trying to represent themselves before the Massachusetts Board of Appeal. Instead of hiring an attorney to represent them before the RMV Board of Appeal, they have represented themselves or hired a lawyer who does not specialize in hardship license appeals. After the Board has affirmed the decision of the Registrar and denied their appeals, they contact me to appeal the Board’s decision. Although, technically, those who are denied relief are allowed to appeal to Superior Court, no superior court judge, in the history of Massachusetts, has ordered the Board to grant a hardship license. Instead, courts have consistently ruled that the Board as wide latitude and discretion when it comes to deciding who gets hardship license and who does not.

In most cases, the Board denies hardship licenses for the following reasons: traffic violations, open criminal or civil matters that may result in future suspension(s), evidence of operation during current suspension(s), multiple active suspension(s), other transportation available, no hardship found, insufficient documentation supporting hardship request, prior suspension(s), or a poor driving history.

To get a hardship license, you must present substantial evidence that you have a legitimate hardship and that there is no alternative transportation available which would allow you to get to work, school, or medical appointments. Also, you must show that you are not a danger to public safety, because the causes of your past or present violations have been effectively addressed.

The Division of Insurance Board of Appeal does not automatically issue hardship licenses and they can be difficult to obtain. There is absolutely no automatic right to a Massachusetts hardship license, even if you have served the minimum amount of suspension time. Contact Attorney Brian E. Simoneau for more information regarding hardship licensing in Massachusetts.

The New York Driving While Ability Impaired DWAI Law

NYS_DMVNew York’s driving while intoxicated statute divides levels of impairment into 3 subdivisions. Vehicle & Traffic Law (“VTL”), §§ 1192.1-3 [1989 ed.]. Subdivision one, a traffic infraction which carries non-criminal penalties, VTL § 155,5 defines driving while ability is impaired at VTL § 1192.1. Subdivisions two and three define driving while intoxicated and carry criminal penalties. VTL §§ 1192.2-3.

 Subdivision one (“DWAI Statute”) states: “No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol.” Despite the variance in penalties, convictions may occur under any of the subdivisions. Subdivision seven addresses convictions under the statute and states that a defendant charged under subdivision two or three may be convicted of a violation of subdivision one, two, or three, “regardless of whether or not such conviction is based on a plea of guilty.” The level of impairment necessary to violate the DWAI Statute is “any alcoholic impairment of the driver’s ability to operate such vehicle.”

 The Legislature requires the Mass. Registrar to treat a DWAI guilty plea as a conviction even though New York law designates DWAI convictions as non-criminal in nature. Pursuant to the Massachusetts OUI Statute and G.L. c. 90, § 22(c), a guilty plea to a motor vehicle violation in the form of a DWAI in another state qualifies as a conviction because “motor vehicle violation” is not limited to those violations that result in criminal penalties. Thus, When the Mass. RMV receives notice of a New York DWI, DUI, or DWAI, the Registry will treat that NY violation for the purpose of license suspension or revocation as the drunk driving offense had occurred in Massachusetts. The Massachusetts “motor vehicle violation” definition provides no safe harbor for “like” DWAI violations that carry non-criminal penalties.

Although a DWAI conviction carries non-criminal penalties in New York, the impaired and intoxicated driving statutory scheme in New York clarifies that it is still considered a conviction. In subdivision seven, the New York statute states, “[a] driver may be convicted of a violation of subdivision one, two or three of this section …regardless of whether or not such a conviction is based on a plea of guilty.” VTL § 1192.7. Therefore, for Mass. license suspension and revocation purposes, a New York DWAI is treated the same as a Massachusetts DUI. Indeed, the Massachusetts Appeals Court has ruled that because the Mass. OUI law addresses a driver’s diminished ability to operate a motor vehicle safely under the influence of alcohol, a DWAI statute  that also addresses such a diminished ability will be treated as drunk driving law and a violation thereof will be treated as a Massachusetts DUI. The Appeals Court held that variance of punishments between the two statutes are immaterial. The level of punishment does not affect the analysis because different states are likely to produce wide disparities in punishment for conduct that is otherwise substantively or substantially similar.

 In conclusion, the Massachusetts Registry of Motor Vehicles will treat a New York DWAI guilty plea or conviction just like a Massachusetts OUI conviction, when it comes to license suspensions, hardship licensing, Melanie’s Law, and reinstatements. 

Out of State Drunk Driving Convictions & Your Mass. License

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Mass. General Laws c. 90, § 22(c), requires the Massachusetts Registry of Motor Vehicles to give effect to out-of-state motor vehicle violations as if they had occurred in Massachusetts, for the purpose of license revocations and suspensions. The law defines a motor vehicle violation as a violation of law, regulation, by-law, or ordinance, except a violation related to parking, the nature of which would have been reported to the registrar … if said violation had occurred in Massachusetts.

Regarding out-of-state violations, the statute declares “the registrar shall give the same effect to said conviction for the purposes of suspense, revocation, limitation or reinstatement of the right to operate a motor vehicle, as if said violation had occurred in the commonwealth.” The combination of the Mass. OUI Statute and G.L. c. 90, § 22(c), requires the Massachusetts Registrar to treat out-of-state convictions by way of guilty pleas for alcohol-impaired driving as OUI convictions under the OUI Statute for the purpose of license suspension.

The above-cited law means than an out of state drunk driving conviction will impact your Massachusetts driver’s license.  You should keep this in mind when deciding to work out a plea bargain or take your out of state DUI case to trial.