About Attorney Brian E. Simoneau

Massachusetts RMV Lawyer

Penalties for Driving While Suspended

Thousands of drivers are charged with operating after suspension or revocation in Massachusetts each year. These charges can have serious consequences in the form of fines, fees, towing, inconvenience, lost time from work, additional suspension time, habitual traffic offender penalties, reinstatement fees, court appearances, insurance premium increases and legal costs.

It is extremely easy to get caught driving while suspended in Massachusetts. Most police cruisers are equipped with laptops which are connected the Registry of Motor Vehicles. These computers will alert the police that a driver’s license has been suspended or revoked. Also, some cruisers have automatic license plate recognition (ALPR) systems. These systems automatically scan license plates.

A police officer cannot allow a motorist whose license has been suspended to drive away. This usually means that your car will have to be towed and you will be required to pay towing and storage fees. Sometimes you will be arrested and other times you will be summonsed to appear in court as a criminal defendant.

If you are convicted of operating after revocation, you may be sentenced to serve time in jail. This depends on your prior record and why your license was suspended. For example, If your license was suspended for DUI and you are convicted of driving on a license suspended for drunk driving, the law imposes a minimum mandatory 60 day jail sentence.  Given the potential penalties and consequences, it is advisable to hire a lawyer if you are charged with driving while suspended.

Many people who are prosecuted for OAS could have avoided the situation by being issued a hardship license or early reinstatement of the driver’s fulltime license by appearing either before the Driver Control Unit of the Registry of Motor Vehicles or the Division of Insurance, Board of Appeal. These two agencies have the ability to grant driving privileges when a person’s license has been suspended for certain reasons.

Given the penalties and consequences associated with an Operating After Suspension conviction, it might make sense to attempt to get a hardship license or full license reinstatement. Please contact us if you would like more information regarding these options.

Ignition Intelrock Violations: Possible Causes

There are many potential causes of ignition interlock violations, such as initial start failures or failed rolling re-tests, which have absolutely nothing to do with having consumed alcoholic beverages. In these cases, the ignition interlock device misidentifies and misinterprets another substance for the ethanol which is found in a person’s breath after he or she has consumed liquor.

For example, mouthwashes, cough medicines, certain cold and flu medications such as Nyquil and inhalers containing albuterol can all cause false IID alcohol readings. An ignition interlock device is simply not sophisticated enough to differentiate between these substances and the alcohol found in consumed alcoholic beverages.

It has been repeatedly demonstrated that certain foods can cause inaccurate ignition interlock device readings. Sometimes, liqueurs are added to desserts and baked goods which contain sugar and yeast have been known to result in IID violations. The combination of yeast and sugar may produce alcohol which can trigger a reading.

Certain breath mints, toothpastes, and suglarless gum which contain menthol and/or sorbitol have caused false alcohol readings. This is not surprising because sorbitol is an alcohol. Similarly, mouthwashes have caused ignition interlock violations due to their alcohol content. Even some non-alcoholic mouthwashes have caused violations.  For example, Listerine Cool Mint Zero Alcohol mouthwash contains Sorbitol, Propylene Glycol, Eucalyptol, and Menthol. These chemicals are all members of the alcohol family and they will result in inaccurate IID readings.  Therefore, interlock users should not just rely on a label stating that the mouthwash is “alcohol free.” You must check the ingredients to ensure that the mouthwash does not contain any chemical that ends in “-ol.”

Massachusetts Ignition Interlock Device users should take precautions to prevent alleged IID violations which are caused by substances being misinterpreted for consumed alcoholic beverages. The Registry imposes 10 year and lifetime driver’s license revocations for IID violations and taking preventive measures can prevent a long-term license loss.

Fortunately, if you have been accused of a IID violation, you have the right to be represented by a lawyer and there are several effective legal defenses available in these situations.

MA Registry to Issue New Licenses in March, 2018

Massachusetts Driver's LicenseThe Driver’s Licensing Department of the Massachusetts Registry of Motor Vehicles will make secure Real ID Act Complaint Licenses available to Massachusetts Residents in March of 2018. These new driver’s licenses are going to be required to enter Federal facilities, buildings, and installation as well as nuclear power plants and commercial aircraft which are regulated by the Federal Aviation Administration. Individuals who do not have a Real ID Act Complaint Driver’s License can still gain entry into these secure buildings and aircraft. However, those without the required driver’s license will have to use another secure credential such as a United States Passport or passport card.

These new driver’s licenses contain security features to prevent license fraud and counterfeiting. The rationale for these security features is to prevent terrorism and identity theft. The federal law was enacted in 2005 in response to the September 11th hijackings, where terrorists easily obtained fraudulent driver’s licenses. The U.S. Department of Homeland Security has federal oversight over the implementation of the law and it requires crosschecking of identities through a federal database.

Driver’s license applicants will have to show valid birth certificates and social security cards in order to obtain driver’s licenses and the authenticity of documents will be subject to review. Several Motor Vehicle Departments have rightfully complained about the law because it was an unfunded federal mandate. There was no funding made available for states to implement the stringent requirements.

Separate and apart from the Real ID Act requirements, in order to obtain a Massachusetts Driver’s License, the applicant must be lawfully present in the United States and he or she must have at least an Employment Authorization for a Class D license and at least Permanent Residence to obtain a Commercial Driver’s License (CDL).

The requirement to have a Real ID complaint driver’s license does not fully go into effect until October of 2020. This means that if your driver’s license will expire prior to this deadline, you do not need to get a Real ID license at this time. You can just wait until your license expires and get a new one at that time.

Massachusetts already uses sophisticated facial recognition technology to detect, prevent, investigate, and prosecute license fraud. This system compares facial images of licenses, learner’s permits, and identification cards with those already on file in the Registry’s expansive database. When a match is found an investigator is alerted and the Registry’s Enforcement Services Team and Special Investigation Unit works closely with specially trained Massachusetts State Troopers on these Comp./Fraud Lic. ID cases.

Rolling Re-Test Causes Fatal Crash

Ignition Interlock Device are intended to save lives. However, in one case it appears that an Ignition Interlock Device may have cost an 18-year-old woman her life. Alexis Butler, a cheerleader from Michigan, was killed in a motor vehicle accident, as she was backing out of a driveway. She was struck by a motorist, in Arlington County, Texas, who was taking a required rolling re-test while driving.  She had recently moved from Battle Creek, Michigan to Texas.

There were no tire marks at the accident scene. This suggests that the IID user did not see Ms. Butler’s vehicle and made no attempt to stop his pick-up truck. He may have been distracted by the rolling re-test. Lieutenant Chris Cook of the Arlington, Tx Police Department stated that it was very concerning that a driver would be using an IID while they are driving.

The driver informed investigating police officers that he momentarily took his eyes off the road so that he could perform a rolling re-test. There was no alcohol detected.

This case shows that taking a rolling re-test can be dangerous and ignition interlock users should take precautions to reduce the risk of being involved in a collision while taking a required rolling re-test. Due to the license suspension consequences associated with missed rolling re-tests, drivers may be distracted by the requirement to take these tests, which might be requested at inopportune times. The unnamed driver stated that he had only taken his eyes off the roadway for 3-4 seconds.

All interlock devices require rolling re-tests to prevent a driver who is under the influence of alcohol from having someone else blow into the interlock device to allow the intoxicated person to operate the motor vehicle.

Interlock manufacturers claim that a driver should be able to keep his eyes on the road while taking a rolling re-test and that it is up to the driver to pull over, if necessary, to take a breath test. Others claim that rolling re-tests constitute “distracted driving.”

The Mass. RMV Hearing Process

If you are required to attend a hearing at the Driver Control Unit of the Registry of Motor Vehicles due to a driver’s license suspension, revocation, or reinstatement, you should be aware of your legal rights and responsibilities.

The most important legal right that you have at a Massachusetts Registry Hearing is the right to be represented by a lawyer. Registry of Motor Vehicles regulations specifically provide that a person who is undergoing a Registry Hearing has the right to be represented by counsel. Unless your personal appearance is waived by the hearing officer, hiring a lawyer will not excuse you from attending the hearing. However, given the complexities of the license suspension and reinstatement process, having the right lawyer represent you and advocate for you can be extremely beneficial.

Registry hearings can be recorded, so long as the recording does not interfere with the hearing. If the customer elects to record the hearing, the customer is responsible for any fees and expenses associated with the recording and, upon request, a copy of the recording must be provided to the Registrar at the Registrar’s expense. State regulations govern the cost of transcripts. The Registry electronically records all ignition interlock violation hearings, which can result in 10-year license revocations.

You are entitled to present documentary evidence to the hearing officer and you have the legal right, during normal business hours, to examine and copy documentary evidence in the Registry’s possession.

You have the right to call witnesses, cross-examine adverse witnesses, and to testify on your own behalf. At least 2 days prior to your hearing, you have the right to discover the identities of any adverse witnesses. Subpoenas may be issued in accordance with G.L. c. 30A § 12. The standard of proof used at RMV hearings is the civil preponderance of the credible evidence standard, which is much lower than the criminal “beyond a reasonable doubt” standard.

When the evidentiary record is closed, the Registry is required to issue a decision within 10 business days. This does not necessarily mean that the Registry is required to render a decision within the 10 day period immediately following the actual hearing. The Hearing Officer is allowed to keep the record open for the receipt of additional evidence and documentary evidence which may come from police departments, courthouses, motor vehicle departments in other jurisdictions, or various other sources. The 10 day period does not commence until the record is closed.

If you are aggrieved by an adverse decision of the Registrar of Motor Vehicles, in accordance with G.L. c. 90 § 28, you have the right to appeal by going before the Division of Insurance, Board of Appeal. The Board has the power to reverse, modify, or vacate any RMV decision. Legal representation is strongly recommended.

 

Hire the Right DUI Lawyer

If you are serious about achieving the best possible outcome in your Massachusetts Operating Under the Influence (OUI) case, you should hire the best DUI lawyer that you can afford. I have found that there are general practitioners who handle drunk driving cases amongst many other types of cases and there are those lawyers who specialize in DUI defense. These specialists have extensive experience in defending those accused of OUI. They generally achieve better results in DUI cases as compared to the general practitioners and those lawyers who don’t specialize in DUI defense.

I often receive calls from clients who received harsh DUI penalties after being convicted of drunk driving. Many of these clients realize only after it is too late that they hired the wrong lawyer. Some were forced to accept an unfavorable plea deal while others regretted not having hired the right attorney to handle their case.

Those lawyers who are not familiar with DUI license suspension penalties often subject their clients to unpleasant surprises in the form of long license suspensions, mandatory use of an ignition interlock device, the loss of CDL driving privileges, unforeseen hardship license waiting periods, and substantially more severe treatment by the Registry of Motor Vehicles than what was agreed upon in court. Some unfortunate repeat DUI offenders are saddled with felony convictions on their records which can disqualify them from certain jobs and from being issued firearms licenses.

A DUI lawyer’s job should be comprised of two primary functions – effective advocacy and thoughtful advice, so that the client can make an informed decision regarding whether or take the drunk driving case to trial or work out an acceptable plea bargain. If the case is to be pled out, it is the lawyer’s job to negotiate with the prosecutor to achieve the best possible outcome for the client.

I am amazed by the number of people who call me for legal advice when they are already represented by other lawyers. If you cannot get the advice and information from the attorney who is defending you, it might be time to find another defense lawyer.

If you are a lawyer who is defending a DUI case and you need information or advice, particularly regarding the license suspension, administrative, and collateral consequences associated with a DUI case, I invite you to contact me. I am happy to provide advice and information to other lawyers.

The Real ID Act of 2005

The Massachusetts Department of Transportation (MassDOT) is working toward compliance with the Federal Real ID Act and the Registry of Motor Vehicles (RMV) now issues driver’s licenses which are Real ID Act Compliant.

These new secure driver’s licenses will be required for entry into federal buildings and to board domestic fights. However, individuals who have a valid U.S. passport or passport card can use those documents to prove their identities instead of a driver’s license.

The Real ID Act of 2005 was passed to protect against terrorism and it requires motor vehicle departments across the country to meet new security requirements regarding the issuance of official identification cards and driver’s licenses. These new credentials have both public and secret security features to resist counterfeiting, identity theft, license fraud, and illegal duplication. Massachusetts residents will have until October of 2020 to obtain Real ID Act Compliant Driver’s Licenses. Pursuant to an extension granted by the U.S. Department of Homeland Security, current MA driver’s licenses can be used until the deadline.

The current Massachusetts RMV Policy is that no driver’s license of any type may be issued or granted to a person who is not lawfully present in the United States. The Registry enforces this policy by requiring that driver’s license applicants have at least an Employment Authorization Document (EAD) for a Class D license and a Permanent Resident ID or “green card” for a CDL (Commercial Driver’s License).

With the nationwide implementation of the Real ID Act, the Registry will likely be discovering and investigating additional cases of license fraud, which can result in criminal prosecution pursuant to G.L. c. 90 § 24B and mandatory license revocations.

Anyone who receives a letter from the Mass. RMV regarding license fraud is entitled to legal representation at any Registry Hearing, including those hearings conducted at the Special Investigation Unit / Enforcement Services Department of the Registry of Motor Vehicles, which is located at 25 Stuart Street in Boston. This unit is staffed with highly trained State Troopers and other personnel who investigate identity theft and license fraud cases. This is the only location were license fraud hearings are conducted in Massachusetts.

Missed Ignition Interlock Re-Test Violations

vehicle ignitionLeaving your vehicle’s engine running or even the key in the “accessory” position could cause you to receive an Ignition Interlock Violation. This is because the Massachusetts Registry’s Ignition Interlock Device Regulations penalize drivers who miss rolling re-tests and the ignition interlock devices used in Massachusetts, such as the Smart Start and Intoxalock devices, are all programmed to require “rolling re-tests” at random intervals when the devices sense that the vehicle is being operated. This IID sensor makes no distinction between the engine actually running or the key being in the “accessory” position.

The Massachusetts Registry of Motor Vehicles takes ignition interlock violations seriously, and rightfully so. The periodic rolling re-test requirement is imposed to ensure that a driver did not have someone else start his or her vehicle so that he or she could operate the car while under the influence of alcohol. The re-test requirement prevents this by asking for breath samples at random intervals whenever the IID senses that the car is running. Rolling re-tests are required even if the vehicle is stationary, so the term “rolling” is somewhat of a misnomer.

Ignition Interlock users in Massachusetts should be careful to make sure that the vehicle’s ignition is in the “off” position prior to getting out of the vehicle. Also, it is not advisable to leave the engine running for the vehicle to speed up or cool down by using the heat or air conditioning, since the IID will require breath samples. It is important not to miss requested rolling re-test because it can result in violations and a potential 10-year driver’s license revocation.

When the IID calls for a re-test, it will beep and signal the driver to provide a breath sample. If the breath test is not completed within a pre-set time frame a missed test will be recorded and multiple missed tests will trigger a lockout. This information will be electronically stored and reported to the Registry’s Interlock Department during the required monthly download. Upon reviewing the information, a Hearing Officer may send out an IID violation notice to the customer which informs him or her that a hearing will be conducted at the Registry and that hearing may result in the imposition of a 10-year revocation. Those who fail to appear at violation hearings will have their driving privileges revoked indefinitely.  Anyone facing such a hearing is entitled to legal representation there are lawyers who specialize in representing clients who are facing Ignition Interlock Violations at the Registry. These violations carry 10-year license revocations, so the penalties can be severe.

Ignition Interlock Violation Notices

When the Massachusetts Registry of Motor Vehicles (RMV) receives documentation which shows a violation of the Ignition Interlock Device (IID) program requirements, you will receive violation hearing notice. The Registry mails these notices to the customer’s address on record with the RMV. Any alleged non-compliance with IID program requirements can result in the scheduling of a violation hearing. The notice will inform you of the address, date and time of your scheduled Ignition Interlock Device Violation hearing. If you fail to appear, the Registry will automatically revoke your driver’s license.

The hearing notice will contain a summary of the alleged violations and your rights under the law. At the hearing, you have the right to present your side of the case and refute any evidence of the alleged IID violations. This is your opportunity to convince the Registry Hearing Officer not to revoke your driver’s license for 10 years for having violated the IID program requirements.

The Registry requests that Prior to the IID violation hearing, you submit to the RMV’s Ignition Interlock Department any evidence which you plan to present at the hearing and a list of all witnesses you intend to have testify on your behalf.

The Registry’s Ignition Interlock Department conducts violation hearings and the Registry enforces program requirements with a zero-tolerance approach. Fortunately, you are legally entitled to be represented by counsel at these violation hearings. Hiring a lawyer is highly recommended and effective representation can often mean the difference between keeping or losing your driver’s license for 10 years.

If you receive a violation hearing notice, you should promptly contact an attorney. Also, you should contact your service provider and request a copy of the interlock readings from the last 6 months. The service provider is legally required to supply the customer with this data and it can be very helpful when it comes to defending yourself against an alleged violation.

New DUI Marijuana Court Ruling

With the legalization of Marijuana by the Massachusetts Legislature as a result of a referendum ballot question, there have been many changes in the law and some of those law changes impact Massachusetts Hardship Licenses as well as suspensions and revocations. Medical Marijuana is low legal in Massachusetts and the Registry of Motor Vehicles no longer suspends licenses for certain drug convictions such as possession of marijuana, even if the conviction entered prior to legalization.

The highest court in Massachusetts, the Supreme Judicial Court, recently issued a major ruling regarding the crime of Operating Under the Influence of Marijuana. In a DUI Drugs Trial, a police officer who is not qualified as an expert witness cannot legally testify that the driver was under the influence of marijuana or that the consumption of the marijuana impacted the driver’s ability to safely operate a motor vehicle.

In Mass. DUI drugs trials, law enforcement officers cannot refer to roadside assessment as field sobriety tests and failing these tests does not mean that the defendant was sufficiently impaired by marijuana to diminish his or her ability to drive safely.

The Mass. SJC also ruled that only an expert witness can testify that a person was “high” on marijuana. A police officer can testify as to observations but not that those observations necessarily mean that the driver was under the influence of marijuana.

Drug recognition experts can still testify regarding their opinions and observations. However, police officers who have not been trained, testified, and certified as drug recognition experts will not be allowed to testify as to their opinions.

Given these legal restrictions, obtaining convictions for Operating under the Influence of Drugs will likely be more difficult. This may encourage police officers to suspend driver’s licenses by using the immediate threat law.