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.

Hardship Licenses for Fraud Suspensions

comp_fraud_lic_idThe Special Investigations Unit of the Registry of Motor Vehicles will indefinitely revoke your license whenever it discovers that you have provided false information to the Registry in order to obtain a license or identification card. Most of these cases are discovered through facial recognition, where the Registry finds the same person’s photograph on multiple license records.

At minimum, false license and “Comp. Fraud Lic/Id” cases usually result in 6 month license revocations. False license cases can also result in felony criminal charges, pursuant to G.L. c. 90 § 24B. It is a crime to provide false information to the Registry when applying for a driver’s license. 

If your Massachusetts license or right to drive is suspended or revoked for license fraud, you have the right to appeal the revocation to the Division of Insurance Board of Appeal. However, you can only appeal the revocation once you have proven your true identity to the Registry’s satisfaction and you have explained the fraud to the RMV Special Investigations Unit.  If you appeal a false license suspension to the Registry Appeals Board prior to clearing your record with the Special Investigations Unit, the Board will deny you appeal and refer you to the Registry, where you must meet with a Registry Hearings Officer or State Trooper assigned to the Compliance Unit.

Once you have attended the license fraud hearing and proven your true identity, you can be considered for a 12 hour hardship license or, in some cases, early reinstatement of your driving privileges. However, in cases where you used someone else’s social security number or other identifying information, getting a hardship license may be difficult. The Board of Appeal takes a very dim view of identity theft. Unlike license fraud, identity theft is not a “victimless crime” and getting a hardship license in cases where you have used someone else’s identity without their permission can be difficult. Contact Attorney Brian E. Simoneau for more information.

Mass. RMV Clerk Made False Licenses

fraud_licenseOn July 17th, Department of Homeland Security Special Agent Anthony Cicerone, who is assigned to the Boston Document and Benefit Fraud Task Force (DBFTF), filed a criminal complaint in the United States District Court for the First District of Massachusetts in Boston against Vanessa Peguero, a former Registry of Motor Vehicles clerk who worked out of the Leominster, Massachusetts Registry Branch.

The complaint alleges that between February of 2010 and June of 2012, Peguero violated federal law which makes it a federal crime to produce a false driver’s license or other identification document. This is also a felony under G.L. c. 90 § 24B, which carries a mandatory license revocation and a sentence of up to 5 years in state prison.

The U.S. Attorney’s Office has alleged that Peguero issued Massachusetts driver’s licenses to certain individuals using false information. These driver’s license applicants obtained valid Puerto Rican identity documents in identities other than their own and, with Peguero’s assistance, they used the false documents to obtain Massachusetts Driver’s Licenses under assumed names.

Last month, Special Agent Cicerone interviewed Ms. Peguero and she admitted that she knowingly and willfully issued at least 15 fraudulent Massachusetts driver’s licenses. She accepted $200 for each false license which she issued.

Peguero was caught when a confidential federal informant provided information indicating that individuals in New York had a contact at the Massachusetts Registry of Motor Vehicles, who provide false licenses. Registry computer checks revealed that Ms. Peguero was the Registry employee who in fact issued a fraudulent license to an illegal immigrant who was arrested at JFK Airport in New York for illegally re-entering the United States. In this person’s possession was a fraudulent Massachusetts Driver’s License which Vanessa Peguero issued. Customs and Border Protection determined that the holder of the license was actually a a previously deported aggravated felon.

Peguero admitted to having generated false licenses commencing in 2010, when a person approached her and asked her to convert his Puerto Rican license to a Massachusetts license. This person later admitted that his Puerto Rican driver’s license was fraudulently obtained and he asked Peguero if she wanted to make money by generating false licenses. The man would pay $200 dollars per license she issues, by leaving the $200.00 in the glove compartment of her car after she generated the fake license. Peguero admitted that she knew the people who were coming in for the licenses were not the people who they claimed to be.

Assistant United States Attorney Eugenia M. Carris has been assigned to prosecute the case.

Drunk Driving & Car Insurance

DUI_CAR_INSURNACEI received this e-mail from a client whose license I got fully reinstated back in 2009.

I just wanted to let you know how appreciative I am for everything you did for my case. Having my license back has been life changing and without your help I wouldn’t be where I am now. I have definitely learned a great lesson through my mistakes and am grateful that I can now continue my life in a more positive direction. So thank you very much!

She recently e-mailed me regarding her automobile insurance. She wrote as follows:

I hope all is well! You had represented me as an attorney back in November of 2009 helping me get my license back from a DUI case I had won, and I just had a quick question I was wondering if you could help me with.

Right now I’m renewing my car insurance, so I was wondering, since I won the case against the DUI but I still refused the breathalyzer in the case, should that still go against my insurance since my license was suspended? I wasn’t sure if you knew, if so I would really appreciate any information you could provide me, as I know most insurance agents seem unsure.

The answer to this question is no. Refusing to submit to a breath test will result in a license suspension, but not an increase in your automobile insurance premiums. G.L. c. 175 § 113B governs insurance premiums in Massachusetts, under what is known as the safe driver insurance plan. This plan allows insurance companies to charge you more based on your driving or criminal record. For example, at fault accidents, speeding citations, and DUI convictions will increase your insurance rates. When it comes to drunk driving cases, pleading out, admitting to sufficient facts, getting a CWOF, or being assigned to an alcohol education program, such as the § 24D program or the 14 day DUIL Program in Tewksbury will count as an operating under the influence “conviction” for insurance purposes. However, getting a not guilty verdict or dismissal, as many of Attorney George E. McCarthy’s client obtain, will not result in an increase of your insurance premiums. This is another reason not to plead out and to take your case to trial, if you’re charged with drunk driving in Massachusetts.

3 Surchargeable Events Suspensions

immediate_threat_medicalThe Massachusetts RMV will suspend your license or right to drive if you have accumulated any combination of 3 surchargeable events or at fault accidents within any rolling 2 year period.

To prevent a 3 surchargeable events suspension from going into effect, you have 90 days to provide proof to the Registry that you completed the 8 hour Attitudinal Dynamics of Driving Course which his taught by the National Safety Council.

To enroll in the NSC 8 hour ADD course, call the NSC at 1-800-215-1581. Once you successfully complete the remedial driving class, the National Safety Council will inform the Registry and proof of course completion will be added to your driving record. The RMV will clear the pending indefinite 3 surchargeable events suspension and it will not go into effect.

If you fail to complete the Attitudinal Dynamics of Driving Course within the ninety (90) day period, the Registry will automatically suspend your driver’s license and the indefinite suspension will remain in effect until you complete the course and the Registry is notified. The Mass. RMV will impose a $100.00 reinstatement fee.

When it comes to 3 surchargeable events suspensions, the RMV has no discretion. It is legally required to suspend your license if you fail to take the required NSC class.

You are legally entitled to a Registry hearing. However, the only issue which can be brought up is the accuracy of your driving record. If you feel that an error has been made, the RMV will require to you present sufficient documentation to prove that you were found not at fault for a surchargeable accidents or not responsible for a motor vehicle violation.

If your license is suspended for 7 surchargeable events, you may be considered for a hardship license. Contact Attorney Brian E. Simoneau at 508-656-0057 for more information.

Mass. Driving Record Admitted in Error

mass_driver_historyIn Massachusetts, a person’s driving record is not subject to sealing and records of DUI convictions are accessible to the public, pursuant to the Lacey Packer Law.  Offenses and violations do not “drop off” of a person’s driving record, which is maintained by the Merit Rating Board and utilized by insurance companies and the Massachusetts Registry of Motor Vehicles.Recently, in the case of Commonwealth v. Winfield, the 82 Mass. App. Ct. 1102,  2012 WL 2308126, the Massachusetts Appeals Court reversed a driver’s conviction for operating after suspension and reckless driving on the grounds that the introduction of her driving record was unfairly prejudicial and it denied her a fair trial.

For example, Jurors saw that the Registry sent Winfield a notice that her license would be indefinitely revoked for “IMMED THREAT–MEDICAL”; that her automobile registration would be revoked because of no liability insurance; a letter indicating that her license would be suspended because of 4 surchargeable accidents; a notice of a fine default and a returned check for insufficient funds; and a list of “all offenses and actions” that included a speeding violation and “minor traffic” infractions dating back to 1982.

In reversing Winfield’s convictions for driving while her license was suspended and reckless operation, the court ruled that “all of the information contained in the registry record was irrelevant, with the exception of the certification that the notice of license suspension had been mailed to the defendant…” The introduction of Winfield’s 30 year driving history denied her a fair trial because it may have prejudiced the jury against her. The only question for the jury was whether or not Winfield drove while her right to operate was suspended and whether she drove in a reckless manner. Her history of accidents, an immediate threat medical suspension, a bad check, and other minor automobile law violations had no bearing on that question and it should not have been introduced at her trial.

Read more.

Out of State License Revocations

out_of_state_license_ndrThe Massachusetts Registry of Motor Vehicles does not operate in a vacuum, meaning that out of state convictions and license suspensions will “follow” you to Massachusetts, if you have a Massachusetts Driver’s License or if you are a Massachusetts resident. This is because there is a nationwide system in place to prevent drivers who are suspended or revoked in one state from driving or being licensed in other states. 

Without this system, a driver could get a DUI while on vacation in some far away state and escape punishment by returning to his or her home state. Likewise, a driver who is facing a long-term revocation in his or her home state could avoid the loss of license by getting a driver’s license in some other state. 

The nationwide suspension & revocation system is made possible by the National Driver Register, which is a central database of license information, suspensions, withdrawals, and denials. Also, may states are parties to compacts or agreements which allow for reciprocal license suspensions.  

Under this system, the Suspension Department of the Massachusetts Registry of Motor Vehicles, which is located on the 4th floor of the Boston RMV at 630 Washington Street in Boston, will suspend your Massachusetts license until any out of state loss of license is cleared. When your right to drive is reinstated in the other state, the Registry will require you to deliver proof of clearance to the Mass. Registry. Commonly accepted proof of clearance includes a certified driving record from the other state or a “clearance letter.” These documents cannot be more than 30 (thirty) days old. 

If the out of state driving record shows a traffic or criminal offense which would trigger a loss of license if it had been committed in Massachusetts, the Registry will treat the conviction as if it had been committed here in Massachusetts and suspend your license. Basically, the Registry applies Mass. suspension rules to out of state convictions, even if the offense did not trigger a suspension in the other state. 

You can clear out of state suspensions by appearing at Registry Branches during normal business hours at RMV offices located in Boston, Lawrence, Springfield, and Worcester. Hearings are conducted on a part-time basis on selected days at the South Yarmouth, Fall River, and Wilmington RMV Branches.

Aide Admits to Sufficient Facts in 1st Offense DUI Case


The Lawrence Eagle-Tribune reported today that Ron Bell, former Aide to Governor Patrick, and current Chief of Staff for embattled Lawrence Mayor Willie Lantigua admitted that there were sufficient facts to convict him of operating under the influence of liquor, as a result of his DUI arrest in Brookline last October. His case was heard in the Brookline District Court and later transferred to the Dedham District Court when Bell exercised his right to a jury trial.

After the Governor suspended Bell from his position at the Statehouse, Lawrence Mayor Lantigua hired him as his “chief of staff.” Of course, Bell’s license was suspended for 180 days for his refusing to submit to a chemical test. This suspension was followed by a 45 day loss of license, which was imposed pursuant to G.L. c. 90 § 24D. In accordance with the terms of his plea bargain, he has been placed on supervised probation for one year and assigned to take the 24D 16 week out-patient Alcohol Education Program. His license will also be suspended for accumulating surchargeable events if he fails to take the NSC Remedial Driving Class.
Bell claimed that gout and heart medication accounted for his failing field sobriety tests. He was transported to the hospital from the Brookline Police Department, when he complained that he was ill. At the hospital, he was offered a DUI blood test, which he refused. The blood test refusal triggered a 6 month license suspension. Thre article failied to identify Bell’s DUI Lawyer.

If he is arrested again for DUI, he will be charged as a second offender and required to use an ignition interlock device if he is convicted of DUI again.

Mayor Lantigua has been a controversial figure in Lawrence, where he has been accused of favoritism and corruption. He promoted his campaign manager, who is a police officer, from the rank of Sergeant to Deputy Chief, allowing the Sergeant to skip the ranks of lieutenant and captain.

Immediate Threat Complaint filed in Accident

mass_immediate_threat_indefiniteThe Cape Cod Times reported that the Mashpee Police Department filed an immediate threat complaint against a 23 year old Marstons Mills man as a result of a rear-end motor vehicle accident which occurred this morning. Police file these complaints with the Registry pursuant to G.L. c. 90, § 22(a), which triggers the immediate suspension of a driver’s license to protect public safety.

When emergency workers arrived at the accident scene, discovered that the driver’s heart and stopped. Fortunately, firefighters were able to resuscitate him and he was transported by ambulance to Cape Cod Hospital. The other driver was also transported to the hospital.

It was reported that responding police officers discovered hypodermic needles and a controlled substance on the floor of the DUI suspect’s car. Police charged him with DUI drugs, reckless driving, and failure to stay within marked lanes. In Massachusetts, the crime of driving under the influence of drugs carries the same penalties and license suspensions as DUI alcohol.

In addition to the criminal charges, the immediate threat indefinite revocation of the driver’s license will make getting a hardship license or full reinstatement difficult. The Registry will require the driver to attend a reinstatement hearing wherein he will have to convince the hearings officer that restoring his right to drive will not endanger the public safety. Since the driver rear-ended another car, he will receive an automatic automobile insurance surcharge. This at fault accident combined other charges will result in a huge increase of his automobile insurance premium, if he is convicted.

A criminal complaint citation was issued and the case will be heard in Barnstable District Court and his immediate threat suspension hearing will be held at the Registry of Motor Vehicles at 630 Washington Street in Boston or in South Yarmouth. Even if the driver is found not guilty of OUI drugs, the Registry may still maintain the immediate threat revocation until a hearings officer is satisfied that the driver is safe to operate. This does not constitute double jeopardy, because these suspensions are designed to protect the public and not to punish Massachusetts drivers.

Immediate Threat Indefinite Revocations

immediate_threat_rmvThe Massachusetts Registry of Motor Vehicles will indefinitely suspend or revoke your driver’s license or right to drive indefinitely when a police officer files a report indicating that allowing you to keep your license may endanger public safety. This occurs when an officer observes or has dangerous driving brought to his or her attention. In such cases, where a driver poses such a significant threat to public safety, the RMV can revoke his or her license.

In complaint immediate threat cases which involve criminal charges such as DUI, operating so as to endanger, the Registry may delay reinstatement until the criminal charges are resolved. At the immediate threat hearing, the Registry may impose additional suspension time, assign you to a remedial driver training program such as the National Safety Council Attitudinal Dynamics of Driving, or the State Courts Against Road Rage Program. The Registry may also you to pass a written examination and full road test prior to getting your license reinstated. There is a $500.00 mandatory reinstatement fee to clear a complaint immediate threat suspension.

It should be noted that even if your criminal charges are dismissed or you are found not guilty, the Registry can still take action against your license and require to serve suspension time on a complaint immediate threat. These suspensions are indefinite in length, meaning that the Registry can keep you off the road until the hearings officer is satisfied that you are no longer a danger to public safety and you’ve served enough time.

Of course, one of the best ways to get on the road as quickly and painlessly as possible is to hire a lawyer who specializes in Registry of Motor Vehicle Hearings. I have cleared a large number of immediate threat revocations and I have obtained full reinstatements for my clients. If you’ve received a letter from the Mass. RMV stating that your license was suspended due to an immediate threat, contact me for a free consultation and review of your situation.