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.

Be Careful When Lending Your Car

Lending your vehicle to the wrong person in Massachusetts can have severe consequences such as the loss of your driver’s license. For example, if you lend you vehicle to someone whose license is suspended, the Registry may revoke the vehicle’s registration or your Massachusetts Driver’s License. Also, if you are convicted of knowing allowing someone who does not have a valid driver’s license to drive your vehicle, you may have a criminal offense on your record.

If you knowingly lend your car to someone who has an ignition interlock restriction on his or her license, and your car does not have an ignition interlock device (IID) it is a violation of Melanie’s Law and this carries a penalty of 1 year in the house of correction and a 1 year license and/or vehicle registration suspension.

Conversely, if you have an ignition interlock “Z” restriction on your driver’s license and you lend your vehicle to someone, the Registry’s Ignition Interlock Unit will hold you responsible for any alcohol readings, circumvention, disconnection, and/or tampering which occurs. You should definitely think twice before lending an ignition interlock equipped vehicle to anyone. Rolling re-tests failures and missed rolling re- tests often occur in these situations.

Finally, you must ensure that  only those household members who are listed on your policy as authorized drivers are allowed to operate your vehicles. If you let a driver operate your vehicle and he or she is not listed as a driver on your automobile policy, your insurance company may deny coverage. When your auto policy renews, you should carefully review it to confirm that it lists all authorized drivers. Lending your car to a household member who is not listed, especially an inexperienced operator, can result in huge consequences if there is an accident.

Be careful when lending your vehicle to someone to avoid the pitfalls listed above.

Superior Court Appeals of Adverse Decisions

Appealing an adverse decision of the Board of Appeals requires filing a complaint in Superior Court within thirty (30) days of the decision. After service of the administrative record of the proceedings under appeal, you must file a Motion for Judgment on the Pleadings and an accompanying Memorandum of Law. All legal pleadings must be filed in accordance with court rules and standing orders.

As the party who is appealing the administrative decision to the Superior Court, you bear the burden of proving that the Board’s decision is legally or factually invalid. In the vast majority of cases, appealing an adverse Board of Appeal decision to Superior Court is a waste of time and money, especially when it comes to the denial of a hardship license.

There are only certain grounds upon which to get a Board of Appeal decision refused and a Superior Court’s review of an agency decision is confined to the administrative record. This means that you cannot introduce any new evidence that was not part of the Board of Appeal hearing. The courts are restricted by law as to their review powers over an action by an administrative agency such as the Massachusetts Board of Appeal of Motor Vehicle Liability Policies and Bonds. For example, courts are prohibited from holding a new trial, hearing any additional testimony, taking evidence or making new factual findings different from the Board’s. These are not simply suggestions or expectations: they are the law, which all Superior Court Judges are required to follow. Thus, as you can see, Superior Court appeals are difficult to win.

To get a factual determination overturned, you must prove that the decision was not supported by substantial evidence. It requires that the Board s action lack any rational explanation that reasonable persons might support. This is a very difficult standard to meet. Additionally, for a reviewing court to find that the Board abused its discretion, its decision must be found to have been based on whimsy, caprice, or arbitrary or idiosyncratic. This, too, is a very difficult standard to meet.

Nevertheless, if you believe that you have viable grounds to appeal a decision of the Massachusetts Board of Appeal of Motor Vehicle Liability Policies and Bonds, please feel free to contact me for a review of your case. When it comes to errors of law, I have been successful in overturning Board of Appeal decisions in Superior Court and I have assisted other lawyers with their Superior Court appeals.

Weather Related Surchargeable Accidents

Unfortunately for Massachusetts motorists, it’s that time of year. With the recent inclement weather, we’ve already had a substantial number of traffic accidents due to snow and ice. We can expect many more weather related accidents before the end of the snow season.

When you are involved in an accident, your insurance company will make a determination as to who is at fault. If you are in a single car accident, you’re automatically presumed to be at fault, because there is no other drive to take the blame. If you are alleged to be more than 50% at fault, you will receive an automobile insurance surcharge. Depending on your driving record, this surcharge can result in more consequences than an increase of your insurance premium under the Massachusetts Safe Driver Insurance Plan.

Being found at fault in an automobile accident in Massachusetts or on any other state is considered a “surchargeable event,” which could cause you to have to take a safe driving class or result in the automatic suspension of your driver’s license or right to operate in Massachusetts. The Mass. RMV is required to suspend your license if you have accumulated 7 or more surchargeable events within any rolling 3 year period. Surchargeable events include not only traffic citations for automobile law violations but also at fault accidents. However, surchargeable accidents do not count towards habitual traffic offender revocations in Massachusetts.

Your insurance company is required to provide you with a surcharge notice in the event that you are being assessed a surcharge. You have the right to appeal this surcharge within thirty (30) days by submitting a completed appeal form to the Board of Appeal at 1000 Washington Street, Suite 810 in Boston, Massachusetts, with a money order or certified check in the amount of $50.00. You can find the accident surcharge appeal form on the back of the surcharge notice. You must fill it out completely and sign it. It currently takes approximately nine months from the date of filing to get a surcharge hearing.

You are entitled to be represented by a lawyer at your surcharge appeal hearing and having qualified legal representation could make the difference between having the surcharge vacated or upheld. Unlike Massachusetts license suspension and hardship license appeals, surcharge hearings are conducted by single hearings officers at locations throughout Masaschusetts.

Proof of Residency for Registrations

rmv_license_lawyerEffective Wednesday, January 1, 2013, anyone registering a motor vehicle in Massachusetts will have to produce documentation showing “proof of legal residence.” This requirement is in response to legislation which was passed as part of a state budget amendment in July to prevent unlicensed drivers and illegal immigrants from registering motor vehicles.

Other parts of the budget amendment include increased penalties for driving without a license, knowingly employing someone who is unlicensed, knowingly allowing an unlicensed driver to operate your motor vehicle, and manufacturing a false ID.

The new law does not require the Registry of Motor Vehicles to verify the immigration status of someone registering a vehicle. It simply requires the person to present documentation of his or her legal residence.

The law rightfully gives the Registrar of Motor Vehicles the authority to exempt disabled persons, senior citizens, out-of-state students, and military personnel from the proof of residency requirement.

Acceptable proof of residency includes a driver’s license, a Registry identification card, Social Security number, or other suitable proof including current utility bills. Some have criticized the Registry’s policy to accept current utility bills. However, this criticism overlooks the fact that the Registry has always accepted current utility bills as proof of residence, even from those who are applying for a driver’s license. You can see this listed as an acceptable way to prove residence in driver’s license manuals.

Some commentators are implying that there was some conspiracy between the Registry and Governor’s Office to create a gaping “loophole” by accepting utility bills as proof of residency. This is simply not true, as the Registry has always accepted these documents as proof of residency when issuing a driver’s license, which is a much more secure document than a vehicle registration. There was no circumvention of the law. The Registry simply allows applicants for Massachusetts Motor Vehicle Registrations to prove their legal residences using the same item of proof which is and has always been accepted from Massachusetts Driver’s License Applicants. Further, proving residency with a current utility bill is an accepted practice for obtaining resident discounts and other such benefits. Many utility companies verify the information provided through credit and other computerized checks. Furthermore, gas, electric, telephone, and cable companies obviously know the physical address were services are being provided.

Accepting utility bills as proof of residency is commonplace and Massachusetts is not alone in relying on these documents. The vast majority of other states such as Washington D.C., New York, Virginia, North Carolina, Colorado, Kansas, and Wisconsin, to name a few states, all accept utility bills as proof of residency. If the Legislature did not want the Registrar to accept these documents in support of Massachusetts vehicle registration applications, it should have said so.The media should not criticize the Registrar for following an accepted industry standard.

If you need more information regarding the new Massachusetts registration requirements, you can visit the RMV website.

“Failure to Stop” vs. “Refusal to Stop” in Massachusetts

State Highway Safety Director Sheila Burgess is receiving sharp criticism from Massachusetts media outlets regarding her driving record. The stories point out the hypocrisy of putting someone with an allegedly poor driving record in charge of highway safety in Massachusetts. Without weighing in on the merits of the issue, one way or another, I did want to point out that the media might not be completely accurate in its characterization of her record.

Specifically, it has been repeatedly reported that Ms. Burgess’ record contains two entries for “failure to stop for a police officer.” Pursuant to G.L. c. 90 § 25, this is a criminal offense. It is often confused for running a red light, a much less serious civil infraction.

I believe that the source of the confusion can be traced to how citations are entered at the Merit Rating Board, as these entries appear on a person’s driving record. If someone is charged with the criminal offense of refusing to stop for a police officer, after being signaled to do so, the charge will appears as “REFUSE OBEY POLICE,” on the person’s driving record. If someone is cited for running a red light or stop sign, the infraction will appear on the driving record as “FAILURE TO STOP.”

I have not seen Ms. Burgess’ record. However, I know that failure to stop and refusal to obey a police officer are often confused and I suspect that is what is happening here.

Corrupt Registry Clerk Arrested in False Licesne Scam

false_license_massachusetts

Media outlets are reporting on Adriana Ferreira, a Registry of Motor Vehicles clerk who worked at the Watertown Branch. She ran a scam whereby she bilked illegal immigrants out of thousands of dollars, by promising them to get false driver’s licenses and resolve their immigration problems. When she failed to deliver and they complained, she threatened to notify immigration authorities and have the illegal immigrants deported. This woman should be prosecuted to the fullest extent of the law for taking advantage of a vulnerable segment of our population.  

Readers should keep in mind that this is one employee out of hundreds. The vast majority of Registry employees are honest, ethical, trustworthy, and hard working. They do a great job with limited resources. They are among the lowest paid in the state, considering the work they do and the huge volume of transactions and customers they deal with. The public shoud not judge all Registry employees based on Ferreira’s misconduct.

Adriana Ferreira was not able to deliver on her promises because the Registry uses sophisticated technology to insure that the licenses being issued are legitimate. For example, when someone applies for a driver’s license in Massachusetts, the social security number they provide is cross matched with a U.S. Social Security Administration to insure that it is legitimate. If the social security number does not validate, the license cannot be issued. The Registry also uses facial recognition technology to detect license and identity fraud.

Ignition Interocks, Breathalyzers, & Breathing Problems

breathalzyer_refusal_iid_re_testIf you suffer from a breathing condition you should take steps to protect yourself from a Massachusetts breath test refusal suspension which will result in the loss of your license from 180 days to lifetime or an ignition interlock violation which can also result in the revocation of your driver’s license.

If you are arrested for DUI, and you suffer from a medical breathing problem which is preventing you from providing an adequate breath sample, you should notify the police of your medical condition and ask for additional opportunities to take the breath test. Of course, the police and the Registry are aware of false claims of breathing conditions which intoxicated individuals may use to avoid taking the breath test and medical documentation will likely be required to avoid a chemical test refusal suspension. However, it is important to put your condition on the record during the DUI booking process. You should then contact a lawyer who handles RMV cases and obtain medical documentation to substantiate your claim. It is unfair to punish someone who tries as hard as they can do take a breath test but, because of a medical condition, he or she cannot complete the test.

When it comes to ignition interlock devices, the Ignition Interlock Unit of the Mass. RMV is very accommodating to those who have legitimate and documented medical conditions which make ignition interlock device usage difficult. The Registry’s Ignition Interlock Unit may authorize your vendor to lower the breath threshold which the ignition interlock device requires. This will allow you to meet your obligations under the interlock law without risking a missed rolling re-test.

If you have medical issues which have prevented you from taking a breath test or using your IID, you should contact a lawyer for a no obligation review of your situation. To get the “blow pressure” lowered on your ignition interlock device, you will need to provide the MassDOT Ignition Interlock Unit with medical documentation showing that you have a pulmonary disease or condition such as COPD, emphysema, or asthma.

Bood Testing in Drunk Driving Cases

Blood SampleIn a case of interest to DUI lawyers across the country, the U.S. Supreme Court will soon decide whether police officers can obtain blood from a DUI suspect without a search warrant and the driver’s consent. Recognizing the important privacy implications of this case, the American Civil Liberties Union is representing Tyler McNeely, the Missouri DUI defendant who had his blood drawn without his permission and without a warrant.

A Missouri State Trooper stopped McNeely for speeding and the police noticed signs and symptoms of alcohol intoxication. McNeely failed field sobriety tests and he was arrested for operating under the influence of alcohol. When McNeely refused to submit to a breathalyzer, the trooper brought him to a medical clinic to have his blood drawn, without his permission.

The blood test showed that McNeely had a blood alcohol content of .154 which is almost double the legal limit of .08. The question to be decided whether it was legal to use the blood alcohol result against McNeely at his DUI trial or did the warrantless blood test violate McNeely’s right to be free from unreasonable searches and seizures.

The police claimed that they should have been excused from the requirement to obtain a search warrant on the grounds that there was not sufficient time, as the evidence of alcohol intoxication would have dissipated by the time the warrant was obtained. This is known as “exigent circumstances,” and in some cases these “exigent circumstances” have excused compliance with the general rule that police obtain a warrant prior to conducting searches.

Even if the Supreme Court rules that search warrants are not required in Missouri v. McNeely , it is highly unlikely that Massachusetts Police Officers will be allowed to conduct warrantless blood draws in Massachusetts OUI cases. The Massachusetts Supreme Judicial Court has, on many occasions, interpreted Article 14 of the Massachusetts Declaration of Rights to provide greater protections than the Fourth Amendment to the United States Constitution in the area of searches and seizures. Warrantless blood draws in drunk driving cases are likely to be unconstitutional pursuant to Article 14 of the Massachusetts Declaration of Rights, even if they are permissible under the 4th Amendment.