Breathalyzer Refusal Appeal Filed Too Late

breathalzyer_refusal_lawyerThe case of Dascoli v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, 80 Mass. App. Ct. 1111 (2011), illustrates the importance of appealing chemical test refusal suspensions to the Registry in Boston within the statutory 15 day appeal period. Dascoli claimed that the police gave him incorrect information in connection with this decision to refuse to submit to a breath test as a result of his being arrested for OUI 3rd offense. He alleged that the police informed him that his license would be suspended for 18 months instead of the statutorily correct 5 year period.

This may have been a very good reason to reverse the 5 year chemical test refusal suspension. However, Dascoli failed to appeal the suspension to the Registry of Motor Vehicles within 15 days from its imposition. Instead, he appealed in the first instance to the Board of Appeal on Motor Vehicle Liability Policies and Bonds of the Division of Insurance. The Board voted to affirm the 5 year chemical test refusal suspension on the grounds that Dascoli should have appealed to the Registry and then, if necessary, to the District Court.

Essex Superior Court Justice Howard Whitehead agreed with the Board’s decision and ruled as follows: “it may well be that the petitioner’s suspension was invalid as the result of incorrect information provided to him at the time of his refusal. However, within two days, the Registrar sent notice to him that should have alerted him to the fact that he had grounds for appeal (i.e. the actual suspension was longer than stated at the time of the refusal). The petitioner did not appeal within the requisite 15 days and, hence, deprived the Board of the power to correct any error.” The Appeals Court agreed, ruling that “the motor vehicle board of appeal, before which the plaintiff brought the instant appeal of the suspension, has no authority under the statute to grant the plaintiff the relief he seeks.”

Had Dascoli consulted with a DUI lawyer or a lawyer specializing in license suspensions, he would have learned that time was of the essence and he may very well be driving now, instead of serving a 5 year chemical test refusal revocation which was allegedly predicated on erroneous information. 

Connecticut DUI Suspensions for Mass. Residents

CT_DUI_ATTORNEYMassachusetts residents who are arrested for DUI in Connecticut may have to contend with the Connecticut Ignition Interlock Law.  Specifically, Connecticut General Statute §14-227a (g) requires that any motor vehicle operator who has two convictions of operating under the influence of alcohol or drugs within ten years, must serve a suspension period of one year and is prohibited from operating any motor vehicle unless it is equipped with an approved ignition interlock device, for twenty-four months period, following restoration of their operating privilege or operator’s license.

Therefore, if you fall within this category, you will be required to install the ignition interlock device (IID) in your vehicle.

If you are going to use vendor located in Massachusetts, it must be an installer serving Connecticut as well, as the reporting has to be transmitted to Connecticut. To start this process you must obtain certified driving history from Massachusetts’ Registry and forward to: CT DMV, Driver Services, 60 State Street, Wethersfield, CT 06161. Upon review of your Massachusetts record, more information will be forwarded to you.

Lastly, Massachusetts residents, may opt to serve a three year suspension in lieu of the installation of IID. In order to do this, you would need to submit proof of your permanent residency in Massachusetts. However, this will not satisfy the 2 year Massachusetts IID requirement, under which all second and subsequent offenders who are reinstating on or after January 1, 2006, must have the IID while as a condition of any hardship license and for 2 years after getting a full license.


In summary, by agreeing to go onto the IID, you can reduce a 3 year 2nd offense Connecticut DUI suspension to 1 year, so long as the second offense occurred in Connecticut, and the CT Department of Motor Vehicles grants permission to operate only ignition interlock-equipped motor vehicles instead of serving the 2nd and 3rd years of the DUI license suspension.


Fraudulent License Suspensions in Massachusetts

false_license_RMVThe Registry of Motor Vehicles will suspend or revoke your Massachusetts Driver’s License, or right to operate in Massachusetts, whenever the Registry receives notification from the police that you used or were found in possession of a so-called “fake ID” or license belonging to another. This violation carries a 6 month license suspension.

Being caught with a “fake ID” or someone else’s driver’s license is completely different from being charged with providing false information to the Registry when applying for a license or Registry identification card. Providing false information known as “Comp. Fraud Lic/ID.” This is a felony which carries a sentence of 5 years in state prison and a mandatory license revocation. Being caught with a “fake id” or someone else’s license is not necessarily a crime.

The Registry treats out of state violations as if they had occurred here. This means that if you are caught with a false license, fake id, or someone else’s license in another state, and that state reports the incident to the RMV, your license will be suspended here in Massachusetts, in addition to any suspension or revocation which the other state imposes.

In order to clear a “fake id” suspension, you must first be clear in the state where you were caught and in the National Driver Register. Once you are clear in the NDR, you can work on getting clearance or a hardship license with respect to the suspension here in Massachusetts. A lawyer may be able to help you get your license back.

Massachusetts false license suspensions must be cleared by satisfying the Registry and Mass. State Police of your true identity and explaining how and why the license fraud occurred. You are entitled to be represented by an attorney at any license fraud hearing and having a skilled lawyer defend you may be very beneficial.

If you are dealing with a false license suspension or revocation, contact Attorney Brian E. Simoneau at 508-656-0057 for a free review of your situation.

License Revoked? You cannot even drive a Moped or Scooter in Mass.

mass_hardship_license_attonreyIf the Registry suspends your license or right to drive in Massachusetts, you cannot even legally drive a moped or motorized scooter. Under Massachusetts law, a valid Massachusetts learner’s permit or driver’s license is required to operate mopeds or scooters. This means that a license suspension prevents you from legally driving not only a car and motorcycle, but also a motorized scooter or moped.

Many people who are serving long license suspensions are interested in driving mopeds or scooters, so that they can legally transport themselves to and from work. However, without a hardship license or full license reinstatement, this is illegal. The loss of a license can be crippling and being able to drive a scooter or moped sounds like a sensible solution to a major problem.

The loss of someone’s license can have a major impact on the individual without a license and that person’s friends, family, co-workers, and employer. Nevertheless, those with suspended or revoked licenses cannot legally rely on mopeds or motorized scooters to get to and from work, school, or medical appointments.

Unfortunately, those have lost their licenses due to drunk driving convictions, breathalyzer refusal suspensions, habitual traffic offender revocations, 7 surchargeable events, false licenses, reckless driving, or many other suspension reasons cannot rely on mopeds and scooters. This makes getting a hardship license that much more important.

Fortunately, lawyers are available to help those who are seeking work licenses. If you are suffering with a license suspension or revocation, you may be able to shorten your suspension or get a 12 hour hardship license. Call today for a no obligation review of your suspension case.

The SJC’s Souza Ruling & the DUI CWOF “Loophole”

BREATHALYZER_REFUSAL_SUSPENSION_APPEALI have been dealing with the issue of whether a CWOF counts as a prior conviction with respect to breathalyzer refusal suspensions for years, and I was pleased to have written the Amicus Brief in the case of Souza v. Registrar. The court’s ruling vindicated the argument that I had been making at the Board of Appeal for years.

The media has reported that the SJC’s decision in Souza v. Registrar as exposing a “loophole” in Melanie’s Law. However, there was no “loophole.” Instead, the highest court in Massachusetts, the Supreme Judicial Court, determined that the Legislature did not intend for CWOFs in prior DUI cases to count towards breathalyzer refusal suspensions.

On October 28, 2005, “Melanie’s Law,” Chapter 122 of the Acts of 2005 became effective. It substantially increased the penalties for Operating Under the Influence by, inter alia, increasing the chemical test refusal suspension period from one year to three years for those who refuse a chemical test with a prior conviction. It also increased, from 3 years to 5 years, the penalties for those who refuse with two prior OUI convictions. It imposed a lifetime revocation for CTRs for those with 3 prior OUI convictions. Further, it eliminated the ability to obtain a fifteen-day temporary license and imposed the CTR suspensions immediately upon refusal. One thing it did not do was make CWOFs count as convicitons to increase CTR suspensions.  

Webster’s dictionary defines a “loophole” as “an ambiguity or omission in the text through which the intent of a statute, contract, or obligation may be evaded.” There was no loophole. The Legislature did not intend for CWOFs to count. If it wanted prior drunk driving cases which were continued without findings (CWOF’ed) to increase the length of breath test refusal suspensions, it would have said so. Therefore, there was no loophole. The law was written exactly how the Legislature intended.

Nevertheless, the Senate has now decided that CWOFs should count and new legislation is in the works to change the law. This will soon be presented to the Governor for his signature and it is likely to pass. In the meantime, the Court’s decision in Souza v. Registrar of Motor Vehicles is the law and prior DUI cases which were CWOF’ed should not be counted towards breathalzyer refusal suspensions.

Mass. DUI Alcohol Programs for Hardship Licenses

24D_PROGRAM_DUIL_HARDSHIPIn order to get a hardship license from the Registry of Motor Vehicles, you must have completed the appropriate alcohol program. Not all alcohol programs are the same and the Registry’s alcohol program requirements for a hardship license may differ from the program to which you were assigned by the court or probation.

First offenders and “second chance first offenders” must present, to the Mass. Registry, acceptable proof of enrollment in the 24D First Offender Alcohol Program. This is a 16 week out-patient alcohol program which is approved by the Massachusetts Department of Public Health. The program is approximately 40 hours in length. The Registry will only accept this alcohol program at hardship license hearings when you have only one (1) DUI on your record or you have (2) DUI convictions on your record, at least 10 years apart, and the Court approved you for a 24D First Offender Disposition.

If you have 2 drunk driving convictions on your record, in order to get a hardship license from the Registry, the Driver Control Unit Hearings Officer will require you to have completed the 14 day in-patient DUIL program as well as all required aftercare. You must present not only your program completion certificate, signed by Michael Kennedy, but also a discharge summary showing that you completed aftercare and you have been given a low risk of relapse or recidivism. This hardship license requirement applies whether or not the court convicted you of a first or second OUI. If the official records of the RMV reflect 2 OUI convictions, the Registry will not grant you a hardship license unless you meet these DUI 2nd offense alcohol program requirements.

In order for 3rd offenders to get a hardship license from the Massachusetts Registry of Motor Vehicles, proof of a 90 day in-patient alcohol program must be submitted to a Registry hearings officer. The Registry will also be looking for a discharge summary or alcohol evaluation showing a low risk of relapse or recidivism. Absent this documentation, the Registry will not grant hardship relief. 3rd offenders will have their licenses revoked for eight (8) years.

As a condition of any hardship license for 2nd and 3rd offenders, the Registry will require use of the ignition interlock device during the entire length of the hardship license and for 2 years after getting the 12 hour restriction removed. The RMV and Board of Appeal impose this requirement pursuant to Melanie’s Law.

Anyone who is denied a hardship license by the Registry may appeal the denial to the Division of Insurance Board of Appeal. The Appeals Board has broad powers to reverse, modify, vacate, or annul any decision of the Registry. Board of Appeal hearings are conducted by a 3 member board and they are much more formal than Registry hardship hearings. They must be scheduled in advance and sworn testimony is required. It is strongly recommended that Appellants have competent legal representation at Board of Appeal Hearings.

Finding & Order from Board of Appeal is not a Driver’s License

massachusetts_board_of_appealThe Board of Appeal has the legal authority to order the Registry to clear a suspension and issue a driver’s license, including a hardship license, even where the Registry has previously denied hardship relief and refused to do so.

After a hearing, the Division of Insurance Board of Appeal issues a “Finding and Order,” which some mistakenly believe qualifies as a “license” and confers driving privileges. The Board’s “Finding and Order” is not a license. It is simply a set of instructions to the Registry of Motor Vehicles to issue a driver’s license, subject to the restrictions and limitations contained in the Board’s order. Again, an order from the Board to the Registry where the Board orders a full reinstatement or 12 hour work license is NOT a license.

In order to get your license after winning at the Board of Appeal, you must go to the Registry, meet with a hearings officer, and have the hearings officer enter the Board’s order into the RMV computer.                    

If your license has been suspended or revoked for 1 year or more, the Registry will require that you pass a written knowledge and skills test, obtain a learner’s permit, and pass a road test prior to getting your driver’s license reinstated.

You will also have to pay any outstanding fines, citations, excise tax, parking tickets, fast lane violations, and applicable reinstatement fees which range from $100.00 and $1,200.00.

Finally, Melanie’s law might require that you have an ignition interlock device installed in any vehicle which you own, lease, or drive, during the entire term of any hardship license and for 2 years after getting your hardship restriction removed. This requirement applies to anyone who has 2 or more DUI convictions and is reinstating on or after January 1, 2006.

Out of State Ignition Interlock Programs

mass_ignition_interlock_deviceUnder Melanie’s Law, the Massachusetts Registry of Motor Vehicles requires those with 2 or more DUI convictions on their records to use a certified ignition interlock device while on any hardship license and for 2 year after getting a full license reinstatement.

Some other states, such as Arizona, require first DUI offenders to use the ignition interlock device. Some states require interlock for 6 months and others, such as Arizona, require first offenders to use the ignition interlock device for one (1) year.

When a Massachusetts license holder is convicted of an out of state DUI in a state which requires ignition interlock devices for 1st offenders, the Registry has refused to reinstate the OUI defendant’s Massachusetts license unless and until the defendant satisfies the ignition interlock requirement.

In some circumstances, it is possible to serve out of state ignition interlock requirements here in Massachusetts. Likewise, it is possible to serve Massachusetts ignition interlock restrictions in other states. When a driver participates in an out of state ignition interlock program, the driver must select an interlock vendor which operates both in Massachusetts and the other state. Special arrangements with the Registry need to be made for participation in an out of state ignition interlock program.

Incidentally, legislation has been proposed here in Massachusetts to require first offenders to use the ignition interlock for 180 days. This is likely to pass, as it has received strong support from Mothers Against Drunk Driving and it is consistent with what numerous other states with strong anti-drunk driving reputations are doing.

Souza v. Registrar: CWOFs in Massachusetts Drunk Driving Cases

cwofOn October 28, 2005, “Melanie’s Law,” became effective. It substantially increased the penalties for Operating Under the Influence (“OUI”) by increasing the chemical test refusal (“CTR”) suspension period from one year to three years for those who refuse a Breathalyzer with a prior conviction. It also increased, from 3 years to 5 years, the penalties for those who refuse with two prior OUI convictions. It imposed lifetime CTR revocations for those with 3 prior OUI convictions. Further, it eliminated the ability to obtain a fifteen-day temporary license and imposed the CTR suspensions immediately upon the refusal.

On April 5, 2006, Chief Justice of the District Court Lynda M. Connolly promulgated a memorandum to District Court Judges, Clerk-Magistrates, and Chief Probation Officers regarding “Chapter 122 of the Acts of 2005: ‘Melanie’s Law.’” Therein, regarding “Registry / Administrative Penalties…for breath test refusal” 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.”

Commencing on December 13, 2006, the Board of Appeal on Liability Policies and Bonds reduced breathalyzer refusal suspensions which were predicted on prior operating under the influence cases which were continued without a finding (CWOF’ed) and dismissed. Registry Attorney Brian E. Simoneau routinely convinced the RMV Appeals Board to reduce these suspensions on the grounds that a DUI case resolved by an admission to sufficient facts and continuance without a finding was not a “conviction,” as required by the Mass. drunk driving law to extend a chemical test refusal administrative license suspension.

The Board continued ordering breath test refusal suspension reductions until December 10, 2009. There, the Registry claimed for the first time that an admission to sufficient facts was tantamount to a guilty plea which was to be deemed a conviction for the purposes of the implied consent law. The Board accepted the Registry’s “purpose centered” argument.

Predictably, the Appeals Board’s departure from its longstanding practice of reducing chemical test refusal suspensions predicated on admissions to sufficient facts, CWOFs, and dismissals in prior Massachusetts DUI cases was challenged in Superior Court. Attorney Brian Simoneau lead the charge and coordinated appeals with various lawyers throughout Massachusetts.

Due to Attorney Simoneau’s efforts, favorable verdicts were achieved starting with the case of Picariello v. Board of Appeal & Registry of Motor Vehicles, Docket No.: ESCV2010-0426C (Cornetta, J.) (2011), where the Court ruled that there were “problems of a legal nature associated with the agency’s final determination” that CWOFs count and that “the agency decision upholding the Registry’s action violates Ch. 30A s. 14 in that it is ‘in excess of (the) statutory authority’ granted to the agency by the legislature.” This was the first in a line of numerous Superior Court cases where the Registry’s view of the law was rejected and the Court’s agreed with Attorney Simoneau, that CWOFs couldn’t be counted to increase breath test refusal license suspensions.

In the case of Paul J. Souza  v. Registrar, a lawyer challenged an increased breathalyzer refusal suspension without Attorney Simoneau’s involvement. The result: the court sided with the Registry. This case worked its way to the Mass. SJC, where Attorney Simoneau filed an amicus brief on behalf of the Massachusetts Association of Criminal Defense Lawyers. In the Souza Decision, the Supreme Judicial Court adopted Attorney Simoneau’s legal arguments and ruled, finally, that CWOFs do not count towards chemical test refusal suspensions.

The day after the Souza decision was published, a bill was filed to change the Massachusetts Drunk Driving Law, so that prior DUI cases resolved by admissions and CWOFs will count towards breathalyzer refusal suspensions. This law was unanimously passed by the Massachusetts Senate on May 23rd and will be sent to the Governor for signature in the very near future.

If you have questions regarding the Souza decision, and now it might allow you to get your license reinstated or get a hardship license, contact Attorney Simoneau at 508-656-0057 or by filling out the contact form on this site.

The Souza SJC Decision & Melanie’s Law

souza_registrar_breathalzyer_refusalMy office has been inundated by inquiries regarding the case of Souza v. Registrar of Motor Vehicles. I am very familiar with this case, as I have been fighting the Registry on this issue for years and I wrote the amicus brief in the Souza case. In Souza, the SJC adopted the legal arguments which I raised in the brief.

Souza only applies to chemical test refusal suspensions. This means that if you are a second offender who took a breath test in connection with your second offense DUI, Souza does nothing for you. The misconceptions regarding the impact of the Souza decision are likely the product of sensationalist reporting by the media and wishful thinking on the part of those serving DUI suspensions.

The Souza decision does not mean that your first offense DUI never happened. It only means that if a DUI was resolved by an admission to sufficient facts and a CWOF, it should not count against you in the event that you are arrested for OUI again and you refuse a breath test. Thus, it only applies to you if you have a recent chemical test refusal suspension.

If you have any questions as to whether Souza applies to you, please call my office for a free consultation and review of your case. Do not waste your time and the Registry’s time by appealing a suspension when Souza does not apply. The decision has been misunderstood by many, including some lawyers who have been sending their clients to the Registry only to find out that the SJC’s decision has no applicability to their situation.

On the other hand, if you are a 2nd, 3rd, or 4th offender and you refused the breath test with respect to your most recent DUI arrest, I can probably reduce your breathalyzer refusal suspension. This is important because the Registry runs DUI suspensions first. These are followed by OUI suspensions. For example, if you have a 3 year breathalyzer refusal suspension and 2 year DUI suspension, the breathalyzer refusal suspension will run first. If it is reduced to from 3 years to 180 days, your total suspension time can be reduced from 5 years to 2 ½ years.

Contact me with any questions regarding Melanie’s Law and how the Souza SJC decision may help you get your license reinstated or reduce your waiting time before applying for a 12 hour hardship license.

There is legislation which is scheduled to be debated on Wednesday, May 23rd in the Senate which would make CWOFs count towards breathalyzer refusal suspensions. This new law is likely to pass in the very near future.