About Attorney Brian E. Simoneau

Massachusetts RMV Lawyer

NDR Matches Cause Major Headaches for Mass. Drivers

I just received an e-mail from a Massachusetts Resident who has never set foot in sunny California. Nevertheless, the California Department of Motor Vehicles (DMV) has caused his driver’s license to be revoked here in Massachusetts. This happened through the National Driver Register, which is a nationwide computer system which state motor vehicle departments use to communicate with each other.

His license status in Massachusetts is listed as Revoked – NDR Violation – W00, California and the alleged violation date is listed as 1996.  The victim of this revocation has a common name and I fully suspect that someone in California with the same name and date of birth has their license revoked in that state. So the revocation is technically valid. However, it should not be applied to the Massachusetts driver. The issue here is that social security numbers are not always listed in the revocation records or compared when applying the Indefinite NDR revocations to Massachusetts drivers.

A similar situation as described here was reported by the WBZ I-Team. I have handled a number of these cases at the Registry of Motor Vehicles in Massachusetts and I have found the Hearing Officers to be sympathetic to those who have the misfortune of sharing a name and birthday with an out of state scofflaw. The Registry Hearing officers will try to obtain as much information as possible from the state where the revocation has originated and, in some cases, they are able to make a determination that the Massachusetts customer is not the same person as the out of state customer.

Unfortunately, the Registry can’t work on the “honor system” and it must have some proof that the Mass. license holder is not the same individual whose right to operate has been suspended by the other state. Understandably, the Registry cannot override the NDR revocation based solely on the driver’s word. Therefore, if you have been the unlucky recipient of one of these letters, you should get as much information as possible from the state where the suspension has originated prior to seeing a Registry Hearing Officer.

Driver’s License Reinstatement Fees

The Registry of Motor Vehicles charges reinstatement fees which have been authorized by the Massachusetts Legislature. Registry Hearing Officers have no discretion to waive these fees. They are set forth in G.L. c. 90 Sec. 33. With the implementation of the Registry’s new computer system, Hearing Officers may be charging for multiple unpaid reinstatement fees when a customer reinstates. Although this may not have been done before, this is authorized by the statute.

The Registry’s new computer is apparently programmed to calculate reinstatement fees by totaling up any and all outstanding reinstatement fees for payment defaults, National Driver Register Revocations, DUI suspensions, and any other outstanding suspension or revocation from which the customer is reinstating. These reinstatement fees, which the Registry did not set, can range from $100.00 to $1,200.00. Now, customers will likely have to pay multiple reinstatement fees. Although this might be a change from how the fees were previously calculated, it is legal. These are the fees that the lawmakers established and it looks like the Registry’s new computer has been programmed to follow the law on reinstatement fees.

It is highly unlikely that individual Registry Hearing Officers will be afforded any discretion when it comes to imposing these mandatory fees as a condition of reinstatement of a driver’s license or right to operate a motor vehicle in Massachusetts. Hearing officers will likely be powerless to waive or override the required reinstatement fees, even in compelling cases.

MassDOT will only collect reinstatement fees when all of the active suspensions and/or license revocations has been served in their entirely or the customer has been granted hardship relief either directly from the RMV or the Board of Appeal. You cannot pay a reinstatement fee in advance, until all suspension / revocation time has been served and it is time to issue the license.

If you are planning on reinstating your license in the near future, you should be aware that it might be a very expensive process. Unfortunately, there is absolutely nothing that my office can do about reinstatement fees, which are mandated by law.


Missed Interlock Service Visits

The Massachusetts Registry of Motor Vehicles can impose severe penalties for missing Ignition Interlock Device Service Visits. Two missed Service visits can result in a 10 year license revocation and all IID users should be aware of this.

A “service visit” is a mandatory visit by the Ignition Interlock program participant to the local representative of his or her authorized IID service provider so that the customer can have his or her device inspected, monitored, downloaded, calibrated, and otherwise maintained. These mandatory IID service visits are required within 30 days of IID installation, and approximately every twenty five to thirty days thereafter.

One of the main purposes of the required monthly IID service visit is to provide the Registry’s Interlock Department with data for the prior month. The Registry uses this information to determine whether or not the customer is in compliance with program requirements. If the downloaded data shows initial start violations or failed rolling re-tests, the Registry may schedule a violation hearing. The data also shows starts and stops, which allows the RMV to see if the vehicle is being driven regularly.

The IID Service Provider will check the device to insure that it is properly calibrated and functioning correctly. Malfunctioning devices or those which are outside of calibration limits should be taken out of service and replaced. The service technician will also check for and report evidence of tampering, circumvention, or disconnection of the device.

Service providers are allowed to charge a fee for these monthly required service visits and any missed visits are reported directly to the Massachusetts RMV Interlock Department. Sometimes vehicles break down, become non-drivable, or something unexpected happens which might cause you to miss your monthly service appointment. If you miss a service visit, you should promptly notify the vendor and Registry, explaining why you were not able to bring your vehicle in for the scheduled appointment.

Your IID may be programmed to display the number of days remaining until  your next service visit, as a reminder. Missing service appointments may result in a lockout, meaning that your vehicle will not start and you may need to have it towed to the IID service facility to be downloaded and have the lockout cleared.

Driving without the Interlock Device

G.L. c. 90 § 24S makes it a felony criminal offense to operate a motor vehicle that was not equipped with a certified functioning ignition interlock device while the operator’s license has the “Z” ignition interlock restriction. Upon conviction, this crime carries a minimum mandatory 150-day jail sentence and a maximum sentence of up to 5 years in state prison.

In addition to a potential felony conviction and incarceration, operating without an IID will result in a 10-year license revocation. The Registry imposes this 10-year revocation regardless of any extenuating circumstances based on the rationale that a repeat drunk driver whose license has been restricted should not be operating a vehicle without the IID, so as to protect public safety.

If you are operating on a hardship license, being caught operating without the IID, when your driver’s license is IID restricted, will result in the loss of your hardship license in addition to a 10-year revocation, which will run from and after your original license suspension or revocation.

If the Registry has revoked your license for driving without the IID, you have the right to appeal the Registry’s decision to the Board of Appeal. In some cases, the Board of Appeal has granted hardship relief in this situation.

Missed Rolling Re-Test Violations

In order to confirm that an intoxicated driver did not solicit a sober individual to blow into the Ignition Interlock Device, to allow the driver to operate under the influence of alcohol, the Ignition Interlock Device (IID) will require periodic breath samples while the vehicle’s engine is running. These are called “rolling re-tests.” If a driver misses a pre-determined number of these rolling re-tests, his or her IID will go into lockout mode and it must be downloaded within 48 hours.

If the IID is not downloaded within the 48 hour timeframe, the vehicle will not start without a bypass code provided by the IID service provider and it will have to be towed to the service provider to have the lockout cleared.

Pursuant to 540 CMR 25.10(7) if a Massachusetts Ignition Interlock User experiences two lockouts due to missed rolling re-tests, he or she may be found in violation and the Registry may revoke his or her driver’s license for 10 years.

Interlock users must be extremely careful to take rolling re-tests when requested and not engage in risky behavior such as allowing the vehicle’s engine to run without being in the vehicle.

If you experience a lockout due to missed rolling re-tests, you should immediately contact the Registry’s Ignition Interlock Department and explain what happened. The Registry is rightfully concerned that an IID user might miss rolling re-tests due to alcohol consumption and you should proactively take the necessary steps to show that your missed rolling re-tests were not due to not blowing into the device because there was alcohol in your system.

Minimize distractions such as a loud stereo or other loud noises while driving so that you will be able to hear when the IID requests rolling re-tests and you won’t miss them.

Initial Start Interlock Violations

The Ignition Interlock Department of the Massachusetts Registry of Motor Vehicles is now issuing IID Violation Notices and scheduling violation hearings for initial start violations. This means that if you have two initial start violations during a service period, you may receive a violation notice and be called in for a hearing regarding a 10-year license revocation.

The Massachusetts Ignition Interlock Statute, G.L. c. 90 § 24 ½ states that the Registry may impose a 10 year or lifetime license revocation for someone who has “…operated or attempted to operate a vehicle with a blood-alcohol level that caused the certified ignition interlock device to prohibit a vehicle from starting on at least 2 occasions….” The Registry of Motor Vehicles also penalizes drivers whose Ignition Interlock Device (IID) “recorded a blood alcohol level in excess of .02 on at least 2 occasions.”

When your vehicle has been prohibited from starting on two occasions during the same service period, the vehicle will go into a “lockout.” In order to clear this lockout, you must bring the vehicle to your service provider to have the lockout cleared and the data downloaded. If you fail to bring your vehicle to the service provider before the deadline expires, your vehicle will not start and you may need to have it towed.

When you bring your vehicle to your IID service provider, the data from the IID will be downloaded and electronically transmitted to the Registry’s Ignition Interlock Department. If there are violations the Registry may issue a violation notice to the driver. These notices are sent by mail to the customer’s address on file with the Registry.

If you have received an Ignition Interlock Violation Notice, you must appear before a Registry Hearing Officer to answer for the alleged violation. If you fail to appear that this hearing, you will be “defaulted” and your license will automatically be revoked indefinitely. Therefore, you cannot ignore an IID violation or hearing notice.

You have the right to counsel at the violation hearing and having the right lawyer fight for your license can be invaluable. If you have been accused of an ignition interlock violation, you should immediately contact your IID service provider and obtain the printouts for the dates in question. As the customer, you are legally entitled to these printouts and the can be extremely helpful at your violation hearing.

You should promptly engage the services of a lawyer to defend you. Effective legal representation a the RMV can make the difference between keeping your driver’s license intact or being hit with a 10 year license revocation. Some people do not really believe that the Registry will revoke their licenses for alcohol readings, missed rolling retests, or driving without the IID. They find out that they’re wrong when they get the revocation notices in the mail and have to stop driving.

The license restriction code for those who need to use an ignition interlock device is restriction “Z” which stands for zero-tolerance and that is the position which the Registry of Motor Vehicles takes with ignition interlock violations.

Interlock Device Tampering

Pursuant to G.L. c. 90 § 24T, it is a felony to interfere with or tamper with a certified ignition interlock device with the intent to disable the device. Tampering with an IID carries a penalty of incarceration in state prison for up to five years and a minimum sentence of 6 months in a house of correction.

The Registry of Motor Vehicles defines tampering as an intentional attempt to physically disable or otherwise disconnect the Ignition Interlock Device from its power source so as to allow a person to start the engine or continue to operate a motor vehicle without passing a breath test.

If the Massachusetts Registry of Motor Vehicles determines, after a hearing, that a person tampered with an ignition interlock device, he or she will have his or her driver’s license revoked for 10 years. This 10-year revocation will be imposed whether or not the IID user was criminally charged or convicted.

Ignition interlock service providers use tamper-resistant seals and other means such a visual examinations and inspections to detect tampering. Service providers are supposed to check for any signs of tampering when they perform the monthly calibrations and downloads. Ignition Interlock Devices approved for use in Massachusetts must be tamper-resistant and show evidence of tampering if it is attempted.

Failed Rolling Re-Tests

Ignition Interlock devices certified for use in Massachusetts require driver’s to provide breath samples at random intervals while their vehicle’s engine is running. The point of these so-called “rolling re-tests” is to ensure that an intoxicated person did not have a sober person blow into the device to allow the intoxicated person to drive drunk. In such a situation, the IID would show a passed initial start test and failed rolling re-tests.

The Registry imposes 10-year license revocations for failed rolling re-tests, under the theory that these are the product of someone who is operating a motor vehicle with alcohol in his or her system and this is exactly what the Registry’s Ignition Interlock Program is designed to prevent and eliminate.

Although the Registry uses the term “rolling re-test,” these breath samples are required while the engine is running and not only when the vehicle is moving or “rolling.” This means that if you start your vehicle and allow it to idle for whatever reason, perhaps to warm up or cool down, you will be required to take rolling re-tests and the failure to do so may result in a lockout.

A Failed Rolling Re-test in which the operator’s BAC registered at or above .05 is considered a violation of the Registry’s regulations as are two Failed Rolling Re-tests within one service period in which the operator’s BAC registered between .02 and .05.

Interlock users should be aware that a vehicle will start with a BAC reading of .02 and that same reading will trigger a rolling re-test violation. The Ignition Interlock Devices used here in Massachusetts are programmed to lock out an ignition at .021.

There are many causes of rolling re-test failures other than consumed alcohol. A variety of common foods, products, and chemicals can produce false positive results and IIDs certainly are not immune from malfunction.

Anyone facing false rolling-retest violations should immediately take proactive steps to produce exculpatory evidence such as comparison breath or blood tests. Reporting the false positive readings to the local service provider, regional IID manufacturer’s representative, and the Registry’s Interlock Department are steps that might prevent a violation hearing from being scheduled. You can reach the Registry’s Ignition Interlock Department during normal business hours at 857-368-7180.

Interlock Violation Hearings

Pursuant to G.L. c.90, § 24, c. 90 § 24 ½, and 540 CMR 25 .00, the Registry of Motor Vehicles (RMV) schedules Ignition Interlock Violation Hearings whenever it receives documentation which shows a potential violation of the Ignition Interlock Device (IID) program requirements. Whenever non-compliance with the IID program is suspected, the customer will be issued a hearing notice and required to appear before a Registry Hearing Officer to explain the alleged violation(s). Since these Ignition Interlock Violation Hearings can result in 10 year license revocations, legal representation is strongly recommended.

Some Ignition Interlock Violation Hearing Notices are accompanied by a “Notice of Intent” issued by the Registrar to revoke the operator’s license of the ignition interlock program participant. The issuance of such a notice means that the customer’s driver’s license has already been scheduled for revocation and failure to appear at the hearing may result in the scheduled revocation going into effect. The RMV will review the violation documentation contained within the administrative record and render a decision which may result in the imposition of an additional license suspension or revocation.

At the hearing, you have the right to present your evidence and witnesses in rebuttal to the alleged violation(s). The Registry requests that you submit to the Ignition Interlock Department any evidence and a list of all witnesses you intend to have testify on your behalf.

All Ignition Interlock Violation Hearings are electronically recorded and the Registry will begin the hearing by putting the violation on the record. This is usually done through documentary evidence provided by the IID service provider. In some cases a representative from the service provider will participate in the hearing by telephone. The purpose of this participation is to provide technical information and answer technical questions about the IID.

The hearing officer will have access to the customer’s violation history as well as other information showing the use or non-use of the device. The customer is allowed to introduce exculpatory information in the form of testimony, documentary evidence, sworn statements, live witnesses, and written affidavits. The customer is also allowed to present a legal memorandum which explains why, a matter of law, the 10 year revocation should not be imposed.

At the conclusion of the hearing, the Registry will send a copy of the written decision to the customer within 10 days. If a revocation is imposed, the IID customer will also receive a revocation notice which informs him or her that his or license has been revoked for up to 10 years.

Given the high stakes, it is strongly recommended to have competent counsel handle your ignition interlock violation hearing. You have the legal right to be represented by an attorney and you should not go into this hearing alone.

Ignition Interlock Violations

The Registry of Motor Vehicles has determined that the following actions or inactions will constitute ignition interlock violations and these may result in 10 year or lifetime license revocations. Massachusetts appears to have the strictest Ignition Interlock Violations in the country and the Registry enforces IID program rules with a zero-tolerance approach. Fortunately, if you have been accused of an ignition interlock violation, you have the right to a hearing at the RMV in Boston and you have the right to be represented by a lawyer that that hearing. Given the harsh consequences, skilled legal representation is strongly recommended.

  • Operating without a certified Ignition Interlock Device
  • Soliciting or allowing another person to blow into an Ignition Interlock Device so that the person whose license has the IID restriction can operate the vehicle
  • Using any means other than blowing directly into the IID mouthpiece to supply the required breath sample
  • Attempting to circumvent or tamper with the Ignition Interlock Device
  • A single failed rolling re-test which registers a reading at or above .05
  • Two failed rolling re-tests during one IID service period which registers a reading between .02 and .05.
  • Two IID Lockouts due to missed rolling re-tests
  • Two missed IID service visits
  • Operating or attempting to operate a vehicle with a BAC which caused the IID to prohibit the vehicle from starting on at least 2 instances or which caused the IID to register a reading in excess of .02 on at least 2 occasions.