Fatal Accident Preliminary Suspensions

If you have the misfortune of being involved in a fatal motor vehicle accident in Massachusetts, the Registry of Motor Vehicles has the right to immediately revoke your driver’s license for “FATAL ACCD PRELIM.” The Registry imposes these license revocations pursuant to G.L. c. 90 § 29, which requires Massachusetts police departments to promptly notify the Registrar of any serious or fatal motor vehicle accident.  When the Registry of Motor Vehicles receives notification of a fatal accident, the Registrar is required to impose a fatal accident preliminary suspension unless a preliminary accident investigation indicates that the driver whose license is to be suspended may not have been at fault in the accident.

If your license was suspended under the fatal accident preliminary suspension law, you are legally entitled to have the accident impartially investigated and you are further entitled to a hearing regarding the suspension and reinstatement of your driver’s license or right to operate. If the Registry refuses to reinstate your license, you can appeal the adverse Registry action to the Massachusetts Board of Appeal of the Division of Insurance. The Board has the legal authority to order the Registry to reinstate your license.

You cannot be considered for any type of hardship or work license during a fatal accident preliminary suspension, because the purpose of the law is to remove a potentially dangerous driver from the road until the accident can be fully investigated. This is an administrative license suspension which is not intended to punish the driver whose license is taken. In Massachusetts, the Collision Analysis & Reconstruction section of the Massachusetts State Police is charged with investigating fatal accidents. This investigation includes a reconstruction which can be time consuming.

If the Registry of Motor Vehicles suspended your license due to a fatal accident and the reconstruction shows that you were “without serious fault,” the Registry should immediately reinstate your license. If, on the other hand, you were found at fault in the accident, as a result of the reconstruction and investigation, the Registry will leave the suspension in place and the RMV will further revoke your license if you are convicted of vehicular homicide or if the police file an immediate threat suspension request based on the results of the investigation and reconstruction.

If your license has been suspended or revoked because of the above-described circumstances, you should definitely contact a lawyer. My office has successfully handled cases of this nature and obtained full license reinstatements at the Board of Appeal.

Operating After Suspension Conviction Overturned

massachusetts_sjcThe Supreme Judicial Court of Massachusetts has recently ruled that a certified copy of a letter from the Massachusetts Registry of Motor Vehicles, which was introduced in an operating after suspension trial, to prove that the defendant was notified of his license suspension was admitted into evidence in violation of the defendant’s right to confront his accusers, which is guaranteed by the Sixth Amendment to the Constitution.

In order to convict someone of operating after suspension in Massachusetts, the prosecution must prove, among other things, that the Registry notified the defendant that his license was suspended or revoked. The prosecution usually proves this with a certified copy of the suspension letter from the Registrar to the driver.

In the case of Commonwealth v. Joseph Lee, the Mass. SJC ruled that the prosecution could not introduce the suspension letter without producing an employee from the Massachusetts Registry of Motor Vehicles to lay a proper foundation for the suspension letter’s introduction.

The Sixth Amendment to the United States Constitution gives those accused of crimes the right to confront their accusers. In this case, the defendant’s Constitutional right was violated because the prosecution failed to produce a live witness for the defendant to confront regarding the suspension letter. Therefore, the Supreme Judicial Court ruled that the driver’s rights were violated and the Court reversed his conviction for operating after suspension, which carried a mandatory jail sentence because his license was suspended for DUI.

This case demonstrates the importance of having a good lawyer represent you in the event that you are charged with the crime of operating after suspension in Massachusetts.


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.