Medical Conditions & Mass. Breathalyzer Refusal Suspensions

breath_testSometimes it is not possible to provide enough of a breath sample to satisfy the breathalyzer in a Massachusetts driving under the influence case. When this happens, the person taking the chemical breath test will often be considered as having “refused” to submit to the test and the Massachusetts Registry of Motor Vehicles will revoke that person’s license for 180 days, 3 years, 5 years, or lifetime, depending on the person’s age and prior drunk driving record.

As a matter of law and fairness, a breathalyzer refusal suspension should not be imposed if the person suspected of DUI tries his or her hardest, but is unable to provide the required volume of breath due to a legitimate reason, such as a documented medical condition. For example, a person with chronic obstructive pulmonary disease (COPD) might not be able to expel the required volume of deep lung air which the Drager Alcotest 9510 requires. Also, for the breath test to be considered valid, Massachusetts breath testing regulations require two (2) valid breath samples. This means that the person arrested for OUI has to provide one breath sample, wait until the breathalyzer performs a calibration analysis, and then provide another sample of deep lung air for the test to be considered valid. Certain medical conditions might make providing the required breath samples difficult.

On the other hand, in many cases, defendants try to thwart the breathalyzer by intentionally not blowing hard enough, not blowing long enough, or by not forming a tight enough seal between their mouths and the mouthpiece. This type of circumvention rightfully constitutes a refusal. However, if the defendant is unable to provide a sufficient breath sample, through no fault of his own, that should not constitute a license suspension triggering chemical test refusal. I have successfully argued this point at the district court level by appealing the Registry’s decision.

Mass. License Suspensions & Surcharges

Under the Safe Driver Insurance Plan (“SDIP”), created pursuant to G.L. c. 175, § 113B and administered by the Merit Rating Board, see G,L. c. 6, § 183, a record is compiled of each motor vehicle operator’s “at-fault accidents,” “convictions of moving violations of motor vehicle laws,” and “comprehensive claims totaling $2,000 or more.” G,L. c. 175, § 113B. Based on the number of such incidents that a driver has, a driver will fall into one of SDIP’s classifications, paying a higher or lower motor vehicle insurance premium depending on the driver’s particular record.  Surchargeable accidents and moving violations also result in license suspensions under the 7 surchargeable events law.

The Commissioner of Insurance has promulgated regulations pursuant to G.L. c. 175, § 113B, which are codified at 211 C,M.R, § 134.00, et seq., and which define a “surchargeable incident” as an at fault accident, a “traffic law violation,” or a comprehensive coverage claim.

If a traffic violation, moving  violation, or surchargeable accident has resulted in the loss of your Massachusetts Driver’s License, you have the right to be represented by a lawyer at a hearing before the Board of Appeal or the Registry of Motor Vehicles. After a hearing, you may be able to receive as 12 hour hardship license or a full reinstatement of your driver’s license. In some cases, it is possible to get the license suspension reduced to “time served.”

You have the right to appeal an adverse RMV decision to the Appeals Board and you can appeal a decision of the Board of Appeal on Motor Vehicle Liability Policies and Bonds to the Superior Court. An attorney can explain your license suspension appeal rights in Massachusetts. An appeal of the Board’s order to Superior Court must be made within 30 days, pursuant to G.L. c. 30A, § 14.

Surcharges and License Suspensions

At-Fault Accident Surcharges can result in the suspension of your license in Massachusetts and they can also be used to require you to take a mandatory 8 hour driver re-training class.

An accident is surchargeable in Massachusetts if you were determined to be more than 50% at fault for the collision and the insurance company pays more than $500 in claims. Your insurance company can presume that you are at-fault based on how the accident happened. For example, if you rear-ended another vehicle, you will automatically be presumed to be at fault and you may be assessed an insurance surcharge. When this happens, your insurance company is required to mail a notice to your home stating that you have been presumed to be at-fault for the accident. You have thirty (30) days to appeal the surcharge to the Board of Appeal at the Division of Insurance.

The notice advising you that your insurance company has decided that you were at-fault for the accident has two sides. The appeal process is described on the bottom of the front side of the surcharge notice. The actual surcharge appeal form is on the back side of the surcharge notice. You must complete the form and return it to the Board of Appeal at the Division of Insurance within 30 days of the notice.

Filing an appeal with the Board of Appeal does not prevent your insurance company from increasing your insurance premium. However, if the Division of Insurance ultimately decides that you were not more than 50% at fault, the insurance company will issue you a refund of the additional monies paid as a result of the surcharge.

At present, it takes approximately 9 months for surcharge hearings to be held. The Board of Appeal will mail you a Notice of Hearing when your case date has been scheduled to be heard. If the Appeals Board upholds the surcharge, it will remain on your driving record and the Massachusetts Registry of Motor Vehicles can use this surcharge to impose a 60 day license suspension for 7 surchargeable events. However,  the Registry cannot rely on at-fault accident surcharges to impose Habitual Traffic Offender Revocations.

While the Merit Rating Board and the Massachusetts Registry of Motor Vehicles can maintain permanent records of at fault and surchargeable accidents, insurance companies cannot use these records to increase your insurance premium for accidents or traffic violations which occurred more than five years prior to the effective date of your automobile insurance policy.

If an at fault accident has triggered a license suspension for 7 surchargeable events, contact a RMV lawyer. We may be able to get the accident surcharge vacated and get your driver’s license reinstated.


DMV’s Facial recognition system results in 2,500 identity fraud arrests

facial_recognitionNBC News recently reported on the successes of the facial recognition system which has been used by the New York Department of Motor Vehicles since 2010. According to the report, 2,500 people have been arrested for license fraud, when the DMV discovered multiple licenses records for the same person.

The system is manufactured by L-1 Identity Solutions and it is also in use in other states such as North Carolina and Massachusetts. In addition to providing facial recognition solutions to Motor Vehicle Departments such as the Special Investigation Unit of the Massachusetts Registry / State Police, it also provides digital facial biometric technology to casinos and the gambling industry.

Privacy advocates and civil rights advocates are critical of facial recognition systems and the widespread sharing of such data.

The system works by digitizing facial images and comparing them with a database of stored images, using a sophisticated proprietary algorithm. When a match is found between two images, the user is notified and a human makes the final comparison, for verification purposes. The accuracy of this system is extremely high and the Massachusetts State Police use it to detect license fraud. When the system detects multiple licenses for the same individual, MassDOT immediately revokes both licenses and the customer(s) are called into the Registry’s Special Investigation Unit for a license fraud hearing. Providing false information to obtain a license, learner’s permit, or Massachusetts identification card is a felony which carries a potential sentence of 5 years in state prison and a 1 year license revocation.

If you have been accused of license fraud in Massachusetts, you are entitled to legal representation. Contact Attorney Brian E. Simoneau for information and legal assistance.

Careless Driving in Florida Triggers Massachusetts License Suspension

My office recently received this information from a family who was involved in a traffic accident while on vacation in Florida. The Registry has determined that careless driving in the State of Florida is sufficiently similar to negligent operation in Massachusetts, so that it triggers license suspensions here in Massachusetts.

Never in my wildest dreams would I expect to need legal help but injustice does not choose it seems. Last November we went on a family vacation to Florida. We rented a car online and when we got there we were presented with a small and flimsy looking vehicle – Chevy Aveo. Since it is just the 3 of us (2 adults and a 7-year-old) and not all that much driving to be done, we just went with it. After a few days in Disney we had to drive to my husband’s father’s place for Thanksgiving. It was November 21. On the way we got off the highway once for a bathroom stop.

picAs we were getting out of some Wendy’s parking lot onto the street (not highway yet), we had to cross a few lanes to go to the other side (to turn around and get back on the highway). The light was red and not many cars were coming so we could go to get ourselves in line on the other side for when the light turns green. We were driving very slowly, barely moving. Suddenly we hit a car in the left lane. The blind spot in this car was awful and my husband simply did not notice the car in the left lane. The other car (Escalade) was also barely moving so we basically just bumped into one another. We called the police. The lady in the other car was very nice, and so was the police officer. We ended up with a dent on the rental’s door and on the lady’s car’s bumper. It was not a great thing to have happen while on vacation but it was just a fender bender and everybody just drove away. We got a ticket which we paid as soon as we returned home. We figured we will get 3 points for the minor at-fault accident and some insurance rate increase and move on. And then last Wednesday, my husband got a letter from RMV saying that his license is being revoked for 60 days as a result of a criminal conviction.

This came as a complete shock but we figured it is so unreasonable that it has to be a mistake and a call to the 800 number will straighten things out. The person on the phone told us to go to a hearing at a local RMV, which we did first thing Thursday morning. There it turned out that the suspension is legal and will take effect, just as it states. We were given a form to appeal the whole thing with the BOA. It takes at least 30 days to get to the appeal – in the meantime my husband is being falsely punished and my family’s life is greatly disturbed (by technical difficulties as well as emotional distress). Even worse than having to wait so long for the appeal is the fact that we have no guarantee of winning it because there seems to be a huge legal misunderstanding on the part of the Massachusetts RMV.

I spoke to the Florida policeman from the precinct that issued our ticket, did some research of my own regarding Florida Statute 316.1925, Careless Driving. Section 1 defines what constitutes a violation of the statute, and Section 2 states that a violation of Section 1 constitutes a moving violation.

The policeman said that “Careless Driving” is a catch-all in Florida and issued routinely. When a driver is involved in an accident (even a tiny fender bender!) which was not a major event, meaning that was not the result of running a red light or stop sign, of making an illegal turn, of following too closely, or some other such violation, chances are the officer will cite them for careless driving because the elements under the statute merely require the allegation that the operator was not driving his or her vehicle in a “careful and prudent manner” given the circumstances on the roadway.

I fully understand that the Massachusetts License Suspension Law, G.L. c. 90 § 22(c) states that if a Massachusetts licensed driver is convicted in another state of a motor vehicle violation, the Mass RMV is required to treat the conviction as if it had occurred here in Massachusetts. The Registry has, however, incorrectly interpreted this legal requirement to mean that the Florida offense of “careless driving” should be treated as a conviction for “negligent operation” in Massachusetts. Mass Registry of Motor Vehicles unjustly suspends such person’s driver’s license for 60 days and counts it against the person under the Massachusetts Habitual Traffic Offender Law which is simply wrong. This is an INCORRECT and UNJUST interpretation of the Florida statute by Massachusetts authorities!!!! Florida police officers routinely issue citations for careless driving. There are MAJOR legal differences between the Florida Careless Driving violation and the Massachusetts Negligent Operation offense. Why are they being treated as equal by Mass RMV?

We feel that this is an incorrect and frankly illegal interpretation done by the state of Massachusetts that is causing our family unnecessary distress. Don’t get me wrong – I am all for suspending licenses for reckless/negligent drivers – I see them daily on my commute to and from work. It’s just that my husband’s situation is not such case. A clean record at 41-years-old and then a tiny fender bender while on vacation… and we are in a nightmare from which we cannot wake up. We admit that my husband did bump into that lady’s car (it was an accident!). What we deserve is to get 3 points for a Minor at-fault accident (claim of $500 to $2,000) and not all this criminal treatment at 7 points, license being revoked, fines, penalties… being worse off than having been charged with a DUI. Florida careless driving is a non-criminal civil traffic infraction; it is only a financial issue and not what Massachusetts is making it into.

Until our hearing (which will be God knows when) our lives are a total mess – my husband with no license and a treatment of a common criminal – 7 points and a fee of $1200 to get the license reinstated. Overall worse off than if it was a DUI citation because drunk drivers can get a hardship license to drive to and from work! And it was a little fender bender while on vacation… in a bad rental car… in unfamiliar surroundings. Perfect context for a little fender bender to happen. Even to a person with a perfect driving record – which is the case of my husband.

Here is the narrative from the accident report:

V2 was traveling in the left through lane on westbound W Lake Mary Blvd. V1 exited eastbound I-4 to eastbound W Lake Mary Blvd. V1 was in the center through lane as it was approaching the intersection at Lake Emma Rd. V1 attempted to change lanes to the left through lane. V1 struck V2 as it changed lanes. Driver of V1 stated he did not see V2. Driver of V2 stated V1 changed lanes in front of her. There were no reported injuries. Both drivers refused medical treatment.

diagramThe damage to V2 is approximately $1500. The damage to V1 is approximately $3500. Both vehicles were removed by the driver. Driver of V1 was cited for careless driving.

In the accident report the officer estimated damages at insane amounts of $3500 and $1500. No idea where he got those numbers from but the Escalade bumper was already fully paid for by Allstate Insurance at a total of $641. Hertz still did not file the $ amount but take a look at the attached pictures of our rental car damage. Just a dent. Obviously this was just tapped by that Escalade at very low speeds or else my family would be a human marmalade in an Aveo can. No damage inside the door or to the hinge. Just a dent in the driver’s door’s outer panel. It was 2011 Chevy Aveo – this model is no longer made and the entire car was worth very little even as new so the door’s outer panel must be minor $.

The light was red, everybody was barely moving and the car was in my husband’s blind spot so we slightly bumped into one another. That’s all it was. We should get 3 points for a Minor at-fault accident (claim of $500 to $2,000) and not get a label of a road criminal.

Cases of this nature should be taken to the Board of Appeal. Contact a lawyer if you are facing a Mass. license suspension under similar circumstances.

Massachusetts 24D DUI Dispositions, CWOFs, and Job Applications

dui_cwof_job_applicationWhether or not you need to disclose a § 24D operating under the influence disposition on a job application is an excellent question and, as explained below, the answer to this question is: it depends on whether or not you were actually convicted of OUI and the precise wording of the question in the application for employment.

G.L. c. 90 § 24D allows qualified first offenders and certain 2nd offenders to have their drunk driving cases resolved pursuant to an alternative disposition program. Under this program, in exchange for making an admission to sufficient facts and agreeing to being placed on supervised probation and completing an alcohol education program, certain DUI offenders who qualify for 24D as “first offenders” or “second chance first offenders,” are allowed to have their licenses suspended for only 45 to 90 days instead of 1 year for first offenders and 2 years for 2nd offenders.

Sometimes the Massachusetts 24D program made available as part of the drunk driving sentence after the defendant has been found guilty. When this happens, there is a DUI conviction on the person’s record and if an employment application asks, “have you ever been convicted of a crime?” you must generally answer yes. Even though you were awarded a 24D disposition, because a DUI conviction preceded the 24D sentence, you generally cannot answer no.

On the other hand, if you made an admission to sufficient facts and the operating under the influence of alcohol or drugs charge was continued without a finding and eventually dismissed, you can legitimately answer “no” to a question asking if you have been convicted of drunk driving.  Answering no is permissible because you were not “convicted.” The operating under the influence case was continued without a finding (CWOF) and later dismissed.

Although having your DUI case CWOF’ed and dismissed may allow you to answer “no” on an employment application, the DUI will still permanently appear on your Massachusetts driving record and, because you were assigned to an alcohol program, it can still be used to increase license suspensions in any future DUI cases. Also, a DUI which was continued without a finding and dismissed can be used to when calculating insurance points and surcharges as well as to determine whether a driver is ignition interlock required under Melanie’s Law. However, the Registry cannot count a DUI case which was CWOF’ed and dismissed against you for habitual traffic offender revocation purposes.

Also, if your DUI conviction record was sealed pursuant to M.G.L. c. 276 § 100A-C, you are legally allowed to answer “no record” to any question regarding DUI arrests, convictions, or appearing in court as a criminal defendant. However, the DUI incident will still appear on your driving record. This is because the Massachusetts sealing statute does not apply to the Registry of Motor Vehicles.

Marijuana & Mass. Drivers License Suspensions

marijuana_license_suspensionMassachusetts lawmakers have recently enacted laws which change the way marijuana possession and distribution is handled. Under recent amendments to G.L. c. 94C, the Mass. drug law, possession of one ounce or less of Marijuana in Massachusetts is a civil infraction. This does not mean that marijuana possession is legal, it only means that possession of an ounce or less is not a crime. Also, under the new Massachusetts Medical Marijuana Law, which took effect on January 1, 2013, the cultivation, distribution, possession and use of marijuana is legal, under certain circumstances, for qualified medical users who have a recommendation from a licensed physician.

The recent changes in the laws governing the possession and use of marijuana for medical reasons do not negate the legal requirement that the Registry Division of the Massachusetts Department of Transportation (MassDOT) suspend the license of anyone convicted of the unlawful possession or marijuana, distribution of marijuana, or possession of marijuana with the intent to distribute the illegal drug. Further, any possession, distribution, possession with intent to distribute, or trafficking of marijuana is still a federal crime and a physician’s recommendation for medical marijuana does not immunize the holder from a potential federal prosecution by the United State’s Attorney’s Office. Pursuant to 21 U.S.C. §811, Marijuana is defined as a Schedule 1 Controlled Substance. If federal drug convictions are reported to the Mass. RMV, the Registry will suspend your license as if the conviction occurred in Massachusetts State Courts.

Further, the medical marijuana law does not amend other state laws that which regulate the use, cultivation, transport, distribution or possession of marijuana for non-medical purposes.

In addition to suspending and revoking driver’s licenses for marijuana related convictions, the Mass. Registry also takes actions against licenses for cocaine, heroin, and other drug related convictions, whether the person convicted is licensed in Massachusetts or in any other state.

Use of Out of State DUI Convictions Upheld

new_hampshire_DUIIn the case of Commonwealth v. Lee, the Massachusetts Appeals Court recently upheld the use of an out of state DUI conviction to convict a Massachusetts resident and license holder of OUI 2nd offense. The Appeals Court also upheld the introduction of the driver’s New Hampshire DMV and Mass. Registry of Motor Vehicles driving records to prove that when he was arrested, Joseph A. Lee was driving a motor vehicle with a suspended license, in violation of G.L. c. 90, § 23. At Lee’s drunk driving and operating after suspension trial, his lawyer never objected to the use of Registry and DMV records to prove that the Registry notified Lee that his license was suspended, as required by law. Failing to raise this objection at the time of trial was probably a mistake, because the highest court in Massachusetts has ruled that the prosecution cannot introduce RMV records to prove notice of suspension without accompanying testimony which is subject to cross-examination. In dismissing the appeal regarding the use of Lee’s Registry record, the Appeals Court ruled that because Lee’s lawyer did not object to the introduction of the Registry records to prove that MassDOT provided him with notice of the suspension, Lee waived the objection and he was prohibited from raising it for the first time on appeal. This shows how important it is to be represented by a good lawyer who understandings Massachusetts RMV law.

Lee also claimed that his previous New Hampshire drunk driving conviction could not have been relied upon to impose a 2 year DUI license suspension which the Registry imposes upon anyone convicted of DUI with a prior conviction or alcohol program assignment, in accordance with the Massachusetts DUI law, G.L. c. 90 Section 24. In dismissing this claim, the Appeals Court noted that Lee should have challenged the RMV’s use of the previous New Hampshire conviction by appealing to the Division of Insurance Board of Appeal and then, if necessary, to Superior Court in accordance with the Massachusetts Administrative Procedures Act, G.L. c. 30A, § 14. Thus, by not appealing as required by law, Lee waived his right to challenge the 2 year OUI 2rd offense license suspension. Therefore, as a 2nd offender, Lee will be required to abide by the ignition interlock requirements of Melanie’s Law during the entire term of any hardship license and for 2 years after getting his hardship hours removed.

Incidentally, the Appeals Court observed that the RMV is legally entitled to treat out of state drunk driving convictions as if they had occurred in Massachusetts, for the purpose of license suspensions and reinstatements.

The Annie Dookhan & Mass. Drug Suspensions

Dookhan_Drug_SuspensionsThe scandal at the Massachusetts Department of Public Health Jamaica Plain Drug Lab involving chemist Annie Dookhan has resulted in court action in a large number of drug cases across Massachusetts and thousands of Massachusetts drug prosecutions possibly compromised. The 35 year old Franklin, Mass. resident worked as a chemist at the Hinton State Laboratory which was operated by the Massachusetts Department of Public Health. An investigation conducted by the Attorney General’s Office and the Massachusetts State Police resulted in Dookhan being charged with faking laboratory test results in a large number of Massachusetts drug cases involving illegal possession, possession with intent to distribute, distribution of controlled substances, and drug trafficking. The latest drug test result tampering charges against Dookhan came out of the Middlesex Superior Courts, where she was charged with three counts of obstruction of justice. She was arraigned on similar charges in Essex Superior Court in Salem, Massachusetts.

Judges have released hundreds of defendants from incarceration and stayed the execution of prison sentences in many drug cases across Massachusetts. Pursuant to G.L. c. 90 § 22F, the Registry of Motor Vehicles has suspended the driver’s license of anyone convicted of violating the state’s drug laws. Those defendants who have had their sentences stayed or who have been released due to the Annie Dookhan scandal are attempting to get their driver’s licenses reinstated. They assume that because their sentences were stayed pursuant to court orders, and they were ordered to be released from custody, that they are entitled to have their driver’s licenses reinstated. However, neither the Registry Division of MassDOT nor the Board of Appeal on Liability Policies and Bonds of the Division of Insurance is vacating drug suspensions or reinstating driver’s licenses based on the Annie Dookhan incident.

Appeals seeking license reinstatements based solely on the Annie Dookhan incident are being denied because drug-related license suspensions are not imposed by any judge or court as part of the sentence upon conviction. Instead, these suspensions are imposed by operation of law as soon as a defendant pleads guilty or is found guilty of a violation of the Massachusetts Controlled Substance Law, G.L. c. 94C. When this happens, regardless of any sentence imposed by the court, the defendant’s license is automatically suspended. When the Clerk-Magistrate’s Office of the District or Superior Court electronically notifies the Registry of Motor Vehicles of the drug conviction, the RMV will send the driver a letter informing him or her of the impending license suspension or revocation and the RMV will suspend or revoke the person’s license 10 days thereafter.

Massachusetts Registry Records

mass_driver_historyI have received several inquires regarding how long the Registry maintains driving records, how long certain offenses such as DUI stay on a driving record in Massachusetts, and whether the RMV would have a record of an operating under the influence conviction from 20 some odd years ago. The Registry used to have a 6 year lookback period when calculating drunk driving license suspensions. This was replaced with a 10 year lookback period and with the enactment of Melanie’s Law, the Massachusetts Legislature eventually eliminated all limitations on lookback periods. Now, with the elimination of lookback limitations, any DUI conviction anywhere in the word at anytime will count against you when it comes to determining the length of your OUI license suspension. Therefore, the Registry maintains records of DUI convictions forever. Old drunk driving cases never drop off your record in Massachusetts and even if you have your criminal OUI case sealed or expunged, the Registry is entitled to maintain unsealed OUI conviction records which are publicly accessible under the Lacey Packer Law. The Massachusetts Sealing Laws only require the Commissioner of Probation to seal his records. They do not require that the Registrar of Motor Vehicles seal her records.

The chances of the Registry of Motor Vehicles having a record of even a 20 or 30 year old OUI conviction are actually pretty good. The RMV does an excellent job of maintaining records in various forms including electronic computer accessible records and other official records which are in paper form or contained on microfilm. Registry hearings officers can use all of these records to calculate the length of a license suspension. Also, DUI offenses are recorded on citations which the Registry can access and hearings officers can also access court and probation records. Clerk-Magistrates are required to notify the Registry of any DUI convictions and the Registry can use these notifications to add DUI convictions to a driver’s permanent record. MassDOT hearings officers are also allowed to use these records to impose license suspensions of varying lengths, such as 2 year suspensions for 2nd offenders, 8 year revocations for 3rd offenders, 10 year license revocations for 4th offenders, and permanent license revocations for anyone convicted of 5 or more drunk driving offenses. When official records reflect a continuance without a finding (CWOF) , which is followed by a drug or alcohol program assignment, this offense is considered a conviction for license suspension purposes.

Also, Massachusetts Driving Records contain more than convictions. Any motor vehicle citation you receive for an automobile law violation will appear on your driving record. Also, breathalyzer refusals and breath test failures will also be listed on your driver history. Your Massachusetts record may also contain out of state drunk driving violations.

Some other states have lookback periods of varying lengths such as 5 or 10 years. However, these are not applicable in Massachusetts, even if the DUI offense occurred out of state. If the RMV receives information regarding any out of state OUI convictions, they will be added to your permanent record in Massachusetts and there is no purging or sealing of driving records in Massachusetts.

Finally, since the RMV maintains permanent driving records, any indefinite holds or blocks from Massachusetts which appear in the National Driver Register will be maintained until they are cleared. This means that NDR blocks which originate from Massachusetts do not disappear after any certain amount of time, unless the underlying suspension or revocation is cleared with the Mass. RMV.