Hardship License Denial Upheld

registry_attorney_massachusettsIn the case of Given v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, the Middlesex Superior Court, the Middlesex Superior Court ruled that substantial evidence supported the Motor Vehicle Liability Board’s decision to not issue a hardship license to a driver with a suspended license. The driver had three violations of operating a motor vehicle under the influence. The driver had previously re-offended after receiving a hardship license, and the driver’s most recent discharge papers categorized him as at high risk to re-offend. The board expressed concerned that the driver remained a risk to public safety.

Fred Given has three convictions for operating a motor vehicle under the influence (“OUI”). His first two convictions were entered on October 14, 1994 and May 30, 1997, respectively. His most recent conviction was entered on October 31, 2006. On November 24, 2006, following the third conviction, the Registry of Motor Vehicles (“RMV”) suspended Given’s license to operate pursuant to G.L. c. 90, § 24(1)(c)(3) which mandates an eight year license revocation for a third OUI conviction. In December 2008, Given appealed to the Board and requested a hardship license.

Given was granted a hardship license once before, following his second OUI conviction in 1997. After a two-year suspension, Given completed the Middlesex D.U.I.L. program (the second offenders program) and was granted hardship relief. After his third OUI conviction in 2006, Given attended the second offenders program again. His 2006 discharge summary reflects an assessment that he is at a high risk for recidivism.

The Board held a hearing on January 14, 2009. At the hearing, Given testified to the following. Given owns a construction business. Since his driver’s license was suspended in 2006, he has been dependent on his partner for rides to and from work. His partner will soon retire and will no longer be an available source of transportation. Given is the sole financial support for his two children, aged 13 and 15. He provides $250 a week in child support to his ex-wife who is disabled with Crohns disease and unable to work or drive. Given testified that he has been sober since November 1, 2006 and that he attends four to five AA meetings a week.

On April 15, 2009, the Board affirmed the RMV’s eight year suspension of Given’s license, noting that Given had re-offended after receiving hardship relief on his two-year OUI suspension and completing the second offenders program in 1997. The Board also expressed concern that Given’s most recent discharge papers categorize him as at high risk to re-offend. The Board found that Given currently can get to and from work with his partner, and although Given’s partner is soon to retire, this type of inconvenience was contemplated by the Legislature when it enacted G.L. c. 90, § 24. Finding that Given has a life-long problem with alcohol, the Board expressed reluctance to issue another hardship license without substantial proof of ongoing aftercare following the second offenders program. Given did participate in the SMOC aftercare program in 2008, but the Board stated that it still had “concerns that Givens remains a risk to public safety” and invited him to obtain further proof of treatment and counseling, and to reapply in 2010.

A previously revoked license may be reinstated on the basis of hardship, however reinstatement shall be granted under such terms and conditions as the Board, in its discretion, deems appropriate and necessary. In this case, the Board balanced the degree of hardship alleged by Given against the degree of risk posed to public safety, and found that the balance weighed in favor of denying Given’s request. The purpose of a license revocation “is to protect the public from future harm by depriving the unsafe or irresponsible driver of his or her authority to continue to operate a motor vehicle.”

Given argues that he has demonstrated the need for a hardship license by virtue of his position as owner of a construction business, particularly in light of his family situation (he is the sole earner providing for two dependent children.) The Supreme Judicial Court has held that difficulty commuting to and from work is not enough to “tip the scales” in favor of a hardship.  In delivering its decision, the Board stated that the Legislature contemplated this kind of inconvenience when it decided that long license suspensions were a necessary measure to protect the public from dangerous drivers.

Thus, the Middlesex Superior Court ruled that, the Board’s decision was not arbitrary or capricious, an abuse of discretion, or otherwise violative of the law, and it was supported by substantial evidence. The Board’s decision was therefore affirmed.

Going into a Board of Appeal hearing with a discharge summary showing a high risk of recidivism, no real & substantial hardship, and a history which shows that the person seeking hardship relief was caught driivng under the influence while on a hardship license was probably not a good idea. The result here is not surprising.