Appealing a Breathalyzer Refusal Suspension

If the Massachusetts Registry of Motor Vehicles suspended or revoked your driver’s license or right to operate, you have the right to contest the Registry’s action, but you must follow certain procedures, otherwise, you will lose your right to appeal.

In these refusal appeals, there are generally three questions which must be addressed. First, did the arresting police officer have reasonable grounds to believe that the person arrested committed the crime of operating a motor vehicle while under the influence of alcohol? Second, was the person actually placed under arrest for DUI? Third, did the person refuse to submit to a breath or blood test after having been told that his or her license or right to drive would be suspended for a minimum of 6 months and a maximum of life?

Also, the police are required to follow certain procedures when documenting a breath test refusal and the failure to follow those procedures might result in a successful suspension appeal.

You must personally appear for your breathalyzer refusal appeal hearing between the hours of 9:00 A.M. and 3:00 P.M. within fifteen days of your drunk driving arrest. Because only a few hearing officers are authorized to conduct Chemical Test Refusal hearings, they are only held at the Boston RMV Branch, which is located on the third floor at 136 Blackstone Street in Boston, Massachusetts. These hearings are held on a walk-in basis and you must personally appear. You have the right to present any witnesses, documents, or other evidence you wish to have the Registry consider. There is no provision in the law for any extension of the 15-day appeal period, and no letter, phone calls, or other communications to the Registry will extend the appeal period beyond 15 days or to grant a hearing at any location other than the Boston RMV Branch. However, once your initial refusal hearing is opened, it is possible to appear for a follow up hearing and to present initial evidence, while the record remains open.

You have the right to be represented by a lawyer at these hearings and this is strongly recommended, especially if you are facing a 3-year, 5-year, or lifetime refusal suspension.


CDL Disqualifications & Revocations

Federal Regulations, 49 CFR 383.51, carry strict penalties for holders of Commercial Drivers Licenses who commit certain traffic violations. For example, if you receive a citation for “excessive speeding,” which is defined as speeding in excess of 15 miles per hour over the speed limit, it will be counted against you as a serious traffic violation (STV).  However, in order for this to affect your CDL, the speeding violation must have been committed while you were operating a CDL vehicle.

A Reckless Driving, Careless Driving, Negligent Operation or Operating so as to Endanger conviction will result in a 60-day suspension of your Class D, passenger car, license in Massachusetts regardless of whether the offense was committed in a passenger car or CDL vehicle.

Other violations committed while operating a commercial motor vehicle such as improper and unsafe lane charges count towards the 60-day Serious Traffic Violation Disqualification penalty. However, this particular infraction should not apply in all situations. I have personally seen CDL drivers cited for marked lanes violations when all they did was park their tractor trailer units in improper spots at truck stops and rest areas. Instead of being issued parking tickets, they were issued traffic citations which later resulted in the suspension of their commercial driver’s licenses.  If this happens to you, it is important to appeal the citation because it does not seem to be the type of violation that was intended to cause the loss of a CDL. Instead, the disqualification appears to be focused on penalizing someone who makes unsafe lane changes while operating a tractor trailer unit.

Another example of stricter penalties for CDL drivers is the .04 blood alcohol limit. Under both state and federal law, a CDL holder who operates a CDL vehicle with a BAC of .04 or above will result in an automatic CDL revocation or disqualification. This penalty can be imposed whether the driver is on or off duty, so long as the driver was operating a CDL vehicle, such as a tractor trailer unit, at the time of the violation. The blood alcohol limit for drivers of non-CDL vehicles is .08.

If you depend on a Commercial Drivers License to earn a living, you should take the steps necessary to protect your livelihood by driving carefully, being aware of what could cause a CDL disqualification, and assert your appellate rights when necessary.

The Registry is Cracking Down on License Fraud

Four Customer Service Representatives at the Boston Registry of Motor Vehicles Branch were recently indicted on license fraud charges in Federal Court. The Registry will undoubtedly be revoking the fraudulent licenses which these clerks issued. Most, if not all, apparently were issued based on Puerto Rican birth certificates and other official documents to Dominicans and others who were not lawfully present in the United States.

Also, as part of a crackdown on license fraud in Massachusetts, the RMV is allowing police officers and other law enforcement personnel to request that the Special Investigations Unit of the Registry of Motor Vehicles revoke an individual’s Mass. license or right to drive in Massachusetts if a police official determines that that the driver’s license or Registry ID card was obtained fraudulently or that the license or identification card possessed by a person does not match that person’s true identity.

When the Special Investigations Unit of the Registry of Motor Vehicle, which is also known as the Enforcement Services Unit, receives a license fraud report, the RMV will schedule a Comp. Fraud. Lic. / ID Hearing. These Complaint Fraudulent License (CFL) hearings are only conducted at 25 Stuart Street / 10 Park Plaza in Boston.

Anyone who fails to appear for a license fraud hearing will have his or her right to operate revoked indefinitely until the individual personally appears before a hearing officer at the Special Investigation Unit. The Registry’s Enforcement Services Unit will place a hold on the person’s record and no transactions will be allowed until the hold is lifted by Enforcement Services.

The RMV may impose a license suspension or revocation whenever a hearing officer determines that a person fraudulently used or obtained a Massachusetts Driver’s License, Learner’s Permit, or Identification Card. In addition to the RMV’s discretionary suspension, a separate one-year license suspension will be automatically imposed, by operation of law, whenever a driver has been convicted of license fraud in violation of G.L. c. 90 Section 24B, which is a felony that carries a maximum sentence of up to 5 years in state prison. Even without a criminal conviction, the RMV may impose a suspension for if a Hearing Officer determines that an individual fraudulently used or obtained a license, permit, or ID card. In some cases, the Registry can suspend and prosecute even if the attempt was unsuccessful and no credential was ultimately generated. This is because the crime is complete when a person provides false information in any application for a license, permit, or ID card.


Clearing National Driver Register Revocations

The National Driver Register (NDR) is administered and overseen by the United States Department of Transportation (DOT) National Highway Traffic Safety Administration (NHTSA). The purpose of this system is to remove dangerous drivers from the roadways by sharing certain information between states. The law governing the NDR requires state driver licensing officials, such as the Massachusetts Registry of Motor Vehicles, to submit data on drivers whose privilege to operate a motor vehicle has been denied, suspended or revoked for cause, or who have been convicted of certain serious traffic related violations, such as DUI.

Although States use the NDR as part of their driver licensing process, it is the responsibility of the individual States to maintain the accuracy of the data submitted to the NDR. The NDR functions as the central repository of the data but cannot make any changes to this data, which is submitted by Motor Vehicle Departments across the country. The States maintain the sole responsibility for the issuance and renewal of all driver licenses; which includes suspension/revocation actions that have been taken against your driver privilege. Reinstatement requirements must be resolved directly with the State which has taken the action against your license.

This means that you must deal with the state where the problem originates and reinstate your right to operate in that state prior to attempting to reinstate here in Massachusetts.

3 Surchargeable Event License Suspensions

When your Massachusetts Registry record reflects that you have been found responsible for 3 Surchargeable Events within a specified period of time, based on court finding dates and at fault accident surcharge dates, MassDOT will require you to attend and successfully pass a Driver Retraining Program within 90 days of your receipt of the notice of intent to suspend. Pursuant to G.L. c. 175, Section 113B,  if you fail to take and pass the required class or classes, the Registry will automatically and indefinitely revoke your right to operate all motor vehicles in the Commonwealth of Massachusetts. The Registry will suspend your license on the date listed in the notice of intent to suspend without further notice.

A suspension for 3 Surchargeable Events will remain in effect until you complete the mandatory Driver Retraining Program. The National Safety Council (NSC) conducts this program. If you are legally required to take the class or classes, you will receive a registration packet from the NSC relative to the required Driver Retraining Program. If you do not receive this packet, you can visit the NSC website or you can call them by phone at 1-800-215-1581.

You do have the right to a hearing any time your license is scheduled for suspension and you have the right to be represented by a lawyer. However, when it comes to 3 Surchargeable Events, in most cases, the only issue that will be addressed at this hearing is the accuracy of your Massachusetts driving record. If you feel that an error has been made and you wish to challenge the accuracy of your driving record, you will be required to present acceptable documentary evidence to refute the contents of your record.

Hearings are held on a walk – in basis and at the RMV Customer Service Centers located in Braintree, Lawrence, Springfield, Worcester, Fall River, Wilmington and 136 Blackstone Street, Boston, 3rd floor.

You can avoid having your license taken for 3 Surchargeable Events by taking the required class(es) prior to the suspension going into effect.

Marijuana and Driving in Massachusetts

Not long ago marijuana was an illegal controlled substance in Massachusetts. First came “medical marijuana” and now we have legalized the recreational use of marijuana. Marijuana possession once led to arrest and criminal charges. Now, thanks to democratic process, in most cases it is not a violation of state law to possess marijuana in Massachusetts. This change reflects a softening of anti-drug measures. For example, as part of the “war on drugs,” the Registry of Motor Vehicles would automatically suspend driver’s licenses of those convicted of drug offenses. That requirement was recently changed so that most drug convictions do not automatically result in license suspensions.

The legalization of marijuana will undoubtedly lead to an increase in DUI drug cases and motor vehicle accidents caused by drivers who were under the influence of marijuana. It is still a crime to operate a motor vehicle while under the influence of marijuana and that does not mean that you have to be totally “stoned” to be convicted. All that is required is that your capacity to operate is diminished by having ingested marijuana, which still remains a Schedule I controlled substance under federal law.

There is currently no accepted standardized field sobriety evaluation for marijuana like there is for alcohol. Likewise, there is no effective roadside scientific test to reliably and accurately determine THC concentration in the bloodstream. These limitations might make DUI marijuana cases difficult to prosecute.

However, I predict that drivers who are found to be impaired by marijuana will have their licenses indefinitely revoked pursuant to G.L. c. 90 § 22(a), the Massachusetts Immediate Threat law. This statute allows the Registry of Motor Vehicles to summarily revoke the license or right to operate of a person who has recently acted in such a manner as to be a threat to the public safety. Operating a motor vehicle while under the influence of marijuana would seem to trigger this type of revocation. If this happens, my advice is to get a blood test as soon as possible to show the level of THC in your bloodstream.

If your license is revoked, you have the right to a hearing before a Registry Hearings Officer and you have the right to be represented by counsel. You also have the right to appear before the Board of Appeal of the Division of Insurance. This quasi-judicial Board has the “overreaching authority to affirm, modify, or annul any decision of the Registry.”

Please think twice before getting behind the wheel under the influence of marijuana. It is still a crime to drive while high and it could result in the loss of your driver’s license.

Tough Penalties for CDL Holders in Massachusetts

Both Massachusetts and Federal Laws impose severe penalties for truck drivers who violate DUI and breathalyzer refusal laws. These laws can result in a lifetime commercial driver’s license revocation which may be extremely difficult to reverse, even at the Massachusetts Division of Insurance Board of Appeal or in court.

For example, if you have a prior drunk driving conviction and you refuse to submit to a breath or blood test, after being arrested for operating under the influence of alcohol many years later, you will have a lifetime Commercial Driver’s License (CDL) revocation. This is because two events, such as a DUI or a refusal, not arising out of the same incident, will automatically trigger a lifetime CDL disqualification and revocation.

G.L. c. 90F, §9(B), which is a Massachusetts state statute applicable to CDL holders, enacted pursuant to Chapter 246 of the Acts of 1990, provides for lifetime disqualification penalties for any CDL holder who has two or more OUI offenses or two or more chemical test refusals, or any combination thereof, arising from two or more separate incidents. This Commercial Driver’s License Suspension is consistent with federal regulation 49 CFR §383.51, the purpose of which is to increase highway safety by removing certain drivers from the roadways. The Massachusetts and Federal regulations are consistent with the Commercial Motor Vehicle Safety Act of 1986 which is federal legislation governing commercial driver’s licenses. This law standardizes the penalties for drunk driving and breath test refusals when it comes to CDL holders.

The Board of Appeal has been upholding the lifetime CDL revocations even when a driver has a reinstatement order from a judge. The Board has taken the position that the early restoration order applies only to a Class D passenger car license and not a CDL. This interpretation has been upheld in Superior Courts.

Massachusetts to Issue New Licenses in 2017

In order to comply with federal identification document security standards which were implement as a post September 11, 2001 anti-terrorism safeguard, the Massachusetts Registry of Motor Vehicles will begin issuing driver’s licenses which comply with the Federal Real ID Act in the Fall of 2017. Although compliance with the Real ID Law was controversial, it is necessary in order for Massachusetts license holders to be able to enter secure federal buildings and board planes, using their licenses as forms of identification. In order to get one of these more secure identification credentials, the applicant will have to satisfy the Registry of Motor Vehicles that he or she is legally present in the United States. Those who are here illegally will not be able to obtain a Massachusetts Real ID Driver’s License. However, these individuals can use another secure document such as a valid passport to prove their identities and to be able to board aircraft.

Real ID Act Compliant Licenses are not mandatory. The Massachusetts Registry of Motor Vehicles will continue to issue driver’s licenses which are not complaint with the Act. Therefore, Massachusetts drivers will have the option of obtaining a Real ID Mass. Driver’s License or the less secure older form of a driver’s license, which confers the same driving privileges.

These new licenses are necessary because the U.S. Department of Homeland Security (DHS) prevents air carriers and others from accepting a driver’s license which does not satisfy certain security requirements. The Registry has been granted numerous extensions, so as to give it more time to meet Real ID Act Standards and this latest action will ensure compliance when the latest extension expires. The Registry has been working hard to make the necessary operational and logistical improvements required to be able to issue this more secure credential and it will be ready to do so next year.

Commercial Drivers License Suspensions

Prior to implementation of the Commercial Driver’s License (CDL) program in Massachusetts, any person licensed to drive an automobile could also legally drive a tractor-trailer or a bus. In many of the states that did have a classified licensing system, a person was not skills tested in a representative vehicle. As a result, many drivers were operating vehicles that they may not have been qualified to drive. In addition, drivers were able to obtain driver’s licenses from more than one state and hide or spread convictions among several driving records and continue to drive, despite suspensions or revocations.

To address the problems with unqualified truck drivers, the Federal Commercial Motor Vehicle Safety Act of 1986 (the Act) was signed into law on October 27, 1986. The goal of the Act is to improve highway safety nationally by ensuring that drivers of large trucks and buses are qualified to operate those vehicles and to remove unsafe and unqualified drivers from the highways. The Act retained the state’s right to issue a driver’s license, but established minimum national standards which states must meet when issuing CDLs. Massachusetts adopted the Federal Commercial Motor Vehicle Safety Act in 1990.

The Act is designed to protect the public from unqualified and potentially dangerous commercial drivers. The law outlines a series of criminal or other offenses or serious motor vehicle violations which would disqualify an operator from possessing a commercial driver’s license (CDL). Section 9 Chapter 90F sets forth the penalties for CDL violations as well as certain non-CDL violations such as DUI or refusing to submit to a breath test, regardless of whether the person arrested for Operating Under the Influence is operating a CDL vehicle or not. A single DUI or breathalyzer refusal violation results in a one year CDL disqualification. If a CDL holder commits a violation contained in the list on two separate occasions, the CDL is subject to revocation and the CDL holder would be disqualified for life from reinstating his CDL privilege. Chapter 90F, Section 9 includes a life-time look-back period.

When a CDL, operator violates one of the Laws or regulations contained in c. 90F, Section 9, he is disqualified from holding a CDL for a certain period of time. A disqualification means that a person is not allowed to posses the license or right to operate.

Unfortunately, the Board of Appeal has determined that it does not have the discretion or statutory power to order the Registrar to modify the disqualification where the individual offenses are valid and proper.

Maine DUI Suspensions

maine_duiIf you are a Massachusetts resident who commits the crime of Operating Under the Influence of Liquor in the State of Maine, you will have to deal with both the Maine Bureau of Highway Safety and the Massachusetts Department of Transportation (MassDOT) to get your driver’s license reinstated.

The State of Maine will suspend your right to operate of your BAC is at or above .08. Also, like Massachusetts, Maine will immediately suspend your right to drive if you refuse to submit to a chemical test. In Maine, Chemical Test Refusal Suspensions can last for up to six years. In Massachusetts, CTR suspensions can last a lifetime.

A Maine DUI arrest will likely result in a reciprocal suspension of your Massachusetts Driver’s License and a block in the National Driver Register (NDR). This indefinite NDR suspension can only be removed once you satisfy all requirements in both Maine and Massachusetts.

In addition to the indefinite NDR suspension, once the RMV learns of the Maine DUI conviction, your Mass. license will be automatically suspended for one year up to life here in Massachusetts. In many cases, I can get the MA suspension reduced or “deemed served.”

A first offense DUI conviction in Maine will result in a license suspension of 150 days, during which time you will not be eligible for any type of work or hardship license in Massachusetts. You can only be considered for hardship relief by the Mass. RMV when your right to drive has been reinstated in by the Maine DMV.

If you are convicted of DUI in Maine, you must attend and satisfactorily complete the Maine Driver Education and Evaluation Program (DEEP) as a condition of reinstatement. You must also pay all required fines and fees in full. It is imperative that you request and obtain “proof of completion” of this program.