Texting While Driving

In 2010, Massachusetts joined the list of 39 states that have placed some sort of ban texting while operating a motor vehicle.  The law that was enacted has placed numerous restrictions and harsher penalties on drivers that are operating a vehicle while communicating on a cell phone in an attempt to lower the amount of deaths and injuries caused by distracted driving.  In 2010, over 3,000 people were killed in car accidents caused by distracted drivers, and an additional 416,000 were injured.1 The bill states that no person operating a motor vehicle, regardless of age or profession, is allowed to send any sort of electronic message, including text messages, or allowed to use the internet on their mobile device.  However, drivers over the age of 18 are permitted to use cell phones for calling purposes and may also use hands-free technology.

Any operator of a public transportation vehicle or anyone considered a ‘novice driver’ (age 16-17) is prohibited from using a cell phone, regardless of if it is hands-free or not, except in emergency situations (which may be proven by phone records which shows the emergency call as evidence).  If you are a novice driver and are caught using your cell phone, your first offense results in a suspension of your license/learners permit, a fine of $100 and the required attendance at a course on improving the attitude behind the wheel.  The penalties are significantly harsher on the second and third offenses.  If the driver is over the age of 18 and caught texting while driving, the first offense results in a fine of $100 with significantly higher fines for future offenses.

Sending or reading an electronic message while operating a motor vehicle in Massachusetts constitutes a surchargeable event which can lead to the loss of your driver’s license.  If this occurs, you are entitled to appeal the suspension and you are allowed to be represented by a lawyer at any appeal hearing.

Avoiding Ignition Interlock Violations

If you have a Breath Alcohol Ignition Interlock Device (BAIID) installed in your motor vehicle, you should take precautions to avoid an IID violation, which can result in the revocation of your Massachusetts Driver’s License. IIDs are not foolproof and they sometimes register false positive readings. Fortunately, there are simple things that you can do to reduce the probability of a false positive reading.

First, if you are sending your vehicle out for service, you should notify the the mechanic or repair facility that your vehicle has an IID and that you are responsible for any violations. With thousands of ignition interlocks in operation in Massachusetts, most repair facilities are probably familiar with the devices.

When vehicles are being serviced, it is common to have errors such as voice tone aborts and missed rolling re-tests. You may also have alcohol readings if the repair person has alcohol on his breath. Finally, your IID may register tampering, circumvention, voltage fluctuations, and battery disconnections. It is absolutely imperative to get documentation from the repair facility showing when your vehicle was brought in for service, the repair work done, and when the vehicle was returned. The paperwork should also reflect the odometer mileage.

In the event that a violation occurs while the vehicle was being serviced, you will be able to demonstrate that at an ignition interlock violation hearing by producing the paperwork. This may prevent a long-term license revocation.

Next, you should not have anything in your mouth except water, for the 15 minute period immediately before trying to start your vehicle. Ignition interlock devices can mistake food products, mouthwashes, candy, gum, mints, cough drops, and other consumables as alcohol. To prevent this from happening, you can rinse your mouth out with water and consume nothing by mouth prior to blowing into the IID.

Finally, you should notify anyone who operates your vehicle that you will be initially held responsible for any alcohol readings or ignition interlock infractions or violations. To avoid major problems with the Registry, anyone who drives your car should not consume any alcoholic beverages prior to driving or attempting to start the car. The Registry operates on the presumption that the person with the “Z” restriction on his or her license was the operator of the car. In order to overcome this presumption, at your Ignition Interlock Violation Hearing, you must produce evidence to show that you were not operating the vehicle.

If you are driving on an ignition interlock restricted hardship license, you will need to use the IID for a minimum of 2 years after having the “H” restriction from your license. This means that you should have the hours taken off as soon as your suspension expires. The 2 year mandatory IID period will commence only when the “H” restriction is removed from your driver’s license.

If you have questions regarding ignition interlock violations, contact a lawyer at 508-656-0057 for a review of your situation.

Massachusetts Consequences for Out of State DUI

If you are the holder of a Massachusetts Driver’s License or you are a resident of Massachusetts, an out of state DUI or DWAI conviction will result in the suspension of your Massachusetts license. This is because General Laws c. 90, § 22(c), requires the Mass. Registrar of Motor Vehicles to give the same effect to out-of-state motor vehicle violations as if they had occurred in Massachusetts for the purpose of license revocation and suspension. The combination of the Massachusetts OUI Statute and G.L. c. 90, § 22(c), require the RMV to treat out-of-state convictions by way of guilty pleas for alcohol-impaired driving as drunk driving convictions under the OUI Statute for the purpose of license suspension.

The elements of the out of state drunk driving offense do not have to precisely match the elements of the offense in Massachusetts. Therefore, the RMV is legally entitled to treat substantially similar offenses as “like violations” which trigger Massachusetts license suspensions, regardless of the punishment imposed by the Motor Vehicle Department where the violation occurred. Also, under Massachusetts law, a plea of guilty or nolo contendere counts as a conviction, regardless of where or when the plea or conviction entered.

For example, the Mass. RMV suspended Joseph Bellino’s Massachusetts driver’s license in 1992 pursuant to G.L. c. 90, § 24D, the first offender law,  for operating while under the influence of alcohol. In 1996, Bellino was convicted in New York of driving while ability impaired.  Bellino appealed his license suspension, arguing that the Registry had no legal authority to suspend his license in Massachusetts for the New York DWAI conviction, counting it as a second offense. The Superior Court ruled that the Registrar properly suspended Bellino’s license for an additional period of two years, pursuant to G.L. c. 90, §§ 22(c) and 24(1)(c)(2), after counting the New York DWAI conviction as a second OUI offense.

If you are faced with an out of state DUI incident, you or your out of state lawyer should contact a Massachusetts lawyer who is familiar with the workings of the Mass. RMV for advice regarding the consequences which you will face in Massachusetts. In some cases, it is possible to get out of state suspensions reduced or eliminated.

Registry Imposes Lifetime CDL Revocation for DUI & Prior Refusal

TT_UNITToday I received this inquiry from an employer of a CDL holder:

I have a rather simple question (I think) regarding one of my employees, who is a truck driver in Massachusetts. He was charged with a DUI several years ago, went to court and it was declared not guilty. A few years later he was charged again with a DUI and it was declared continued without a finding (CWOF). To my understanding, with this background, he should have been able to get his CDL back a year after the later offense (where the first was Not Guilty). The RMV is telling him he has lost it for life. Just wondering if you could shed some light on this for me and him. I appreciate your time! Thank you.

The answer:

I suspect that the Commercial Drivers License Holder refused to submit to a chemical test in connection with his first OUI incident. Under both Federal Law and G.L. c. 90F Section 9, which is the Massachusetts law governing CDL penalties, suspensions, and disqualifications, a breath test refusal counts as a disqualifying incident. The only exception to this rule is that if the DUI and breathalyzer refusal occur in the same incident, it will be counted as one triggering violation. Here, I suspect that the truck driver refused to take the breathalyzer and the Registry is rightfully counting this refusal as one triggering event. The not guilty verdict does not prevent the Registry from counting the refusal against him. If he got the chemical test refusal suspension overturned by appealing to the judge who presided over the DUI trial, he may have a chance to get relief by going before the Board of Appeal of the Division of Insurance. However, it appears in this case that no such judicial relief from the breathalyzer refusal suspension was granted.

When the CDL license holder admitted that there were sufficient facts for a conviction, was assigned to an alcohol education program for drinking drivers, and had his OUI case continued without a finding, this counts as a second triggering event which would generate a lifetime revocation of his Commercial Driver’s License.

Appealing a 5 year Chemical Test Refusal Suspension

Here’s a situation involving a 5 year breathalyzer refusal suspension.

I’m contacting you to seek your assistance in getting my license reinstated, at least  to some degree if possible. Living and working without the ability to drive is very challenging under these circumstances.

My story is as follows: Nearly a year ago to the day I was pulled over. The police officer walked up to my window as I was searching for my valid registration. It wasn’t located in the glove box as I had needed it for insurance purposes earlier in the week. The officer mentioned this in her police report as me talking away from her which was not the case at all. Upon locating the valid registration in my center console the officer took my ID and asked if I had been drinking to which I replied I had a couple. She went back to her vehicle returning however a short time later.

At that point she asked me to step out of my vehicle and led me away from the scene to a darker area on a slope. Still not knowing why I had been pulled over in the first place she immediately began conducting a field sobriety test. She began to explain the walk, pivot and return test of which I completed without issue. This was the first point where I noticed the officer’s irritation.

She then began the eye test asking me to follow her pen. I obliged however her irritation rose when she kept yelling to me to follow the pen. I was following her instructions however the pen was pulled out of my peripheral view negating my ability to look at it without moving my head. As she completed this test my irritation of the situation rose as the officer was rude and unprofessional.

She explained the final test, I had to raise my leg up 6 inches and count of by 1000-s until she told me to stop. I carried through to 18 and stopped out of frustration that the officer was obviously just going to leave me hanging up there. She yelled at me again for stopping so I resumed until she stopped the test several seconds later. At this point my frustration level was at its peak. She led us back to our vehicles where she instructed a second officer to ready the roadside breath test to which I said don’t bother. Whether that was the right thing to do or not didn’t matter at the time as her un-professionalism and rudeness left me frustrated.

She then arrested me for DUI and at that time I asked her why she pulled me over. She said for marker light violation. Which is a complete fabrication as all the lights on my vehicle were operational at the time. At the station I was not given the option of taking the breathalyzer, not provided with any explanation as to the consequences of not doing so and no documentation for me to sign off on refusing. I was released on PR as soon as booking was completed. I ended up finding out the next day the suspension would be 5 years long.  As there was no mention by the officer of blood shot eyes, slurred speech, unsteadiness on my feet, odor of alcohol, etc. I wasn’t sure the exit order was valid or legal however my attorney didn’t seek suppression during pre trial. My case at any rate was dismissed this past May as the arresting officer had been terminated from the department for her mishandling of dui arrests. Based upon my view of the exit order I wanted to appeal to the registry however by the time I got the hearing notice from my Post Office Box, the 15 day period had since expired. I hadn’t realized there was a limit at the time to which to appeal.

My life a year later has changed profoundly as I am embarking on a new career and bringing a child into the world both of which require my ability to drive.

The Answer:

You can challenge your breathalyzer refusal suspension only between 9:00 A.M. and 3:00 P.M. within fifteen (15) days of your DUI arrest. The Registry only conducts breathalyzer refusal hearings at the Boston Branch which is located at 630 Washington Street and scheduled to move to 136 Blackstone Street in September of 2014. You do not need an appointment for a chemical test refusal (CTR) hearing.  You must appear in person and you have the right to be represented by a lawyer. You can present any witnesses, documents, or other evidence you wish to have considered. Once the hearing record is closed, you cannot present any additional evidence. The law does not provide for any extension of this 15 day appeal period, and no letter, phone calls, or other communication to the RMV will serve to extend the CTR appeal period beyond the 15 days or allow for a hearing to be conducted at any location other than the Boston Branch of the Registry.

Unfortunately, absolutely no hardship licenses or Cinderella or work licenses are authorized by law during a breathalyzer refusal suspension unless he Operating Under the Influence charge has been properly and legally resolved pursuant to G.L. c. 90 § 24D, which applies only to first offenders or “second chance first offenders.” Melanie’s law requires that the CTR suspension is served prior to any resulting DUI suspension. This means that the suspensions are served consecutively and not concurrently.

In the case listed above, the only recourse is to petition the District Court Judge who presided over the OUI trial for a return of the driver’s license, because the OUI charge was dismissed. There is a presumption in favor of returning the license, but it is not automatic. There is no other way to appeal the suspension so long after it was imposed and there is no possibility of a hardship license.

Reckless Driving in Virginia Triggers Massachusetts Suspensions

VIRGINIAIf you are the holder of a Massachusetts Driver’s License or you are a Massachusetts resident, the Registry will treat any motor vehicle violations which you commit as if they had occurred in Massachusetts.  This may cause you to have your license suspended or revoked in Massachusetts for an offense which does not carry any loss of license in the state where the offense occurred.

For example, in the State of Virginia, if you exceed the speed limit by 20 MPH or you travel at a speed greater than 80 MPH, you can be found to have committed the offense of Reckless Driving. There is no automatic license loss associated with this offense in the Commonwealth of Virginia. In Massachusetts, however, a reckless driving conviction will trigger an automatic 60 day license suspension for a first offense.

I have recently received numerous calls and inquiries from Massachusetts residents who have been cited for reckless driving in the Commonwealth of Virginia. These unsuspecting motorists have paid reckless driving citations, not knowing that their licenses would be suspended in Massachusetts. In each of these cases, the Virginia Department of Motor Vehicles notified the Mass. RMV of the reckless driving citations and payments. These notifications have triggered automatic 60 day license suspensions. The motorists appealed the suspensions to the Suspension Unit of MassDOT and in all cases, the hearings officers have upheld the suspensions based on the out of state violations. The only recourse in these situations is to appeal the suspensions to the Board of Appeal of the Division of Insurance of the Office of Consumer Affairs and Business Regulation. Unlike the Registry, the Board of Appeal does not conduct hearings on a walk in basis. Therefore, the motorists will likely have to serve at least some of their suspensions prior to getting their “day in court.”

Likewise, the offense of careless driving in the State of Florida will also trigger a reckless driving suspension in the State of Massachusetts and the Registry has consistently upheld these suspensions, forcing the aggrieved appellants to seek relief from the Board of Appeal.

Caught in a Catch-22 Between States

The Situation:

I have run into a situation from the state of NM and am not sure if I need a lawyer to fix this now or not. I got a DUI in 2006 in the state of Florida. I paid all my fines, took the schooling required, went through the entire process,and got my normal license back in Florida. I then moved to NM several years later. After not so much as a parking ticket for five plus years.

When arriving in NM almost 6 years after my offense I was told I would have to surrender my license again and have an interlock device installed due to state laws. I complied had the device added to my vehicle for the “1 year period” at a substantial cost, after nine months of having it in my car, I had to move to Massachusetts due to my other half being moved for work. I called the DMV to get guidance, they directed me to someone in charge of the interlock system in the state. I have her name written down, but for now I guess not important. She stated I would have to pay the interlock company the remainder of the year, have it removed and then not drive my vehicle for the remaining time. She told me they would not release my license until the year was up and I would have to have my car towed to Massachusetts and not drive at all until May 15th 2014. I did that at a cost of over $2200.00, it was the law (double jeopardy if you asks me), I complied. She stated at the end of a year I would have to pay a fee to NM of 100.00 to have my license reinstated. At the end of the year I paid the fee and had my license reinstated I thought.

I went to the DMV here in Massachusetts and they had me get my driving record from NM so they can process a license for me. NM states I am clear and can fly there and get a new license, but they can not remove the restriction for interlock though they say I have done everything correctly and am able to get a license. They say the system will not allow them to remove the restriction but I am clear to get a license. Massachusetts DMV says they can not process license without the restriction being removed and the two agencies were literally arguing over the phone with each other. MA says they should just remove the restriction and NM says the system does not allow that, I would have to fly back there and get my license renewed there then move out of state.

This has been a nightmare from the start. I am no longer a resident of NM and in order to renew my license there, I would have to purchase a round trip plane ticket, then I would have to lie and state I am a resident, however they will not allow my license to be reinstated in another state or remove the restriction, even through I have completed the year and done everything thing they have asked. I am lost as to what to do next. What I would like to do is sue the state of NM for all my time and energy lost and for “Double Jeopardy” though I am sure they have some justification as to why they are able to penalize a person who has already paid the price once, with a law they created to be backwards compatible, and create more funds for their broke down state.

Is this the kind of situation you handle? What kind of costs would be associated with getting this fixed? For this same DUI offense I have now paid in the state of Florida to the tune of approximately $9000.00, the state of New Mexico six years later, to the tune of another $4500.00 including the interlock installation, check ups removal and towing of my vehicle, fees and state gouging. It appears I will now have to hire an attorney because the two states can not agree on how the system works, both sides agree I should be able to get a license and both blame the other for the reason that its not able to be processed.

The Answer:
MassDOt does not have this record blocked in the NDR and there is no suspension in effect in Massachusetts. Therefore, this person should be able to get a license in his state of residence. He is not IID required under Massachusetts law, because he only has one (1) operating under the influence conviction.

CT May Require Ignition Interlocks for 1st Offenders

IGNITION_INTERLOCKFirst offenders in the state of Connecticut may soon be required to install ignition interlock devices in their vehicles if Senate Bill 465, which was unanimously passed by the Connecticut General Assembly is signed into law. A similar 1st offender interlock bill was proposed in Massachusetts and it is likely to be re-introduced. It would require those convicted of a first offense OUI to use the IID For 6 months in Massachusetts.

The Connecticut Interlock Bill, which is on the governor’s desk for signature, has received strong support by Mothers Against Drunk Driving. The group recognizes that ignition interlock devices are more effective at combating DUI than license suspensions. MADD favors issuing ignition-interlock restricted hardship licenses. MADD’s goal is to have IIDs in every state for every convicted drunk driver.

Currently, a first offender in Connecticut can attend an alcohol education program and serve a license suspension ranging from 90 day to 1 year in length, without any requirement to use an ignition interlock device. Under the proposed legislation, IID requirements would vary based on the facts of the particular DUI case. Massachusetts drivers who are charged with DUI in Connecticut would be held to the same IID requirements as Connecticut drivers.

If the Governor signs the bill into law, it will go into effect in July of 2015. Last year, there were approximately 6,500 first offenders in Connecticut. This law would require any new first offenders to install ignition interlock devices as a condition of license reinstatement.

Currently, the State of Connecticut requires interlocks for anyone who is convicted of operating a motor vehicle under the influence. First offenders are able to avoid a “conviction,” and the interlock restriction, by attending an alcohol education program. Senate Bill 465 would require even these offenders who participate in the DWI diversion program to use the interlock devices, which have been proven to save lives.

Correcting Registry of Motor Vehicles Driving Records

court_recordsRegistry of Motor Vehicle records are what MassDOT uses to determine the length of driver’s license suspensions. These records are not always accurate and there are ways to correct these important records.

Many inaccuracies are the results of converting paper to computer records. Errors may have occurred when the records were “computerized” many years ago. The first step in challenging the accuracy of your Massachusetts Driving Record begins with obtaining your Board of Probation record from the Massachusetts Criminal History Systems Board or the Probation Department of the District Court.

Next, a comparison needs to be between your criminal and driving records.  Where there is a discrepancy, the Board of Probation record is usually found to be correct. As one Superior Court Judge observed, “This court is satisfied that the Board of Probation records of convictions (“BOP”) carry substantial reliability. They are frequently reproduced, examined by judges, probation officers, defendants and their counsel, and relied upon by the court in sentencing. Mistakes, though rarely found, are quickly corrected.”

The third step in the process is to obtain the court documents associated with the OUI case that is in dispute. Often, due to the age of these records, they are sometimes difficult to obtain. The records should be certified by the Clerk-Magistrate’s Office so that they can be introduced in official proceedings such as Registry, Court, and Board of Appeal Hearings.

The Clerk-Magistrate’s Office should send a “corrected abstract” or a “supplemental abstract” to the Massachusetts Merit Rating Board, which is located at the RMV Branch at 25 Newport Avenue Extension in Quincy, Massachusetts. Upon receipt, the Merit Rating Board will review the updated information from the Trial Court and compare it with any records on file at the Registry of Motor Vehicles.

Once the Merit Rating Board updates your driving record, you will likely need to appear at a hearing at the Registry of Motor Vehicles to contest the timing and length of the resulting driver’s license suspension(s). If the hearing outcome is not favorable, you have the right to appeal the Registrar’s decision to the Board of Appeal. The Board has the authority to review the RMV action and order the adjustment of suspensions and revocations in accordance with the law.

Prior DUI Convictions Will Count Against You

If you have been charged with driving under the influence of alcohol or drugs, a prior DUI conviction could dramatically increase any resulting breathalyzer refusal or DWI license suspension. Massachusetts has a lifetime look-back and the prosecution will check multiple sources for prior DUI convictions or assignments to a drug or alcohol treatment program, which count just like convictions.

Prosecutors in Massachusetts operating under the influence (OUI) cases are likely to check computerized records, court files, your Massachusetts driving record, probation record, County and Municipal Court records, as well as DMV databases for any prior offenses.

A prior offense may disqualify you from being treated as a first offender and multiple DUI convictions will substantially increase the length of your DUI and/or chemical test refusal suspension, as well as the waiting period which you must serve prior to being considered for a hardship driver’s license.

In some cases, the prosecution will not be able to prove a prior offense “beyond a reasonable doubt” during the criminal DUI trial. This does not mean that the Registry of Motor Vehicles cannot consider that prior offense when calculating the length of your license revocation or when deciding if your will be ignition interlock required.

If you have been arrested for DUI and you have any prior offenses, you should disclose them to your lawyer as soon as possible. Also, out of state offenses count the same as those committed in Massachusetts. Basically, any prior DUI conviction or assignment to a program will count, regardless of when and where it happened.