Finding & Order from Board of Appeal is not a Driver’s License

massachusetts_board_of_appealThe Board of Appeal has the legal authority to order the Registry to clear a suspension and issue a driver’s license, including a hardship license, even where the Registry has previously denied hardship relief and refused to do so.

After a hearing, the Division of Insurance Board of Appeal issues a “Finding and Order,” which some mistakenly believe qualifies as a “license” and confers driving privileges. The Board’s “Finding and Order” is not a license. It is simply a set of instructions to the Registry of Motor Vehicles to issue a driver’s license, subject to the restrictions and limitations contained in the Board’s order. Again, an order from the Board to the Registry where the Board orders a full reinstatement or 12 hour work license is NOT a license.

In order to get your license after winning at the Board of Appeal, you must go to the Registry, meet with a hearings officer, and have the hearings officer enter the Board’s order into the RMV computer.                    

If your license has been suspended or revoked for 1 year or more, the Registry will require that you pass a written knowledge and skills test, obtain a learner’s permit, and pass a road test prior to getting your driver’s license reinstated.

You will also have to pay any outstanding fines, citations, excise tax, parking tickets, fast lane violations, and applicable reinstatement fees which range from $100.00 and $1,200.00.

Finally, Melanie’s law might require that you have an ignition interlock device installed in any vehicle which you own, lease, or drive, during the entire term of any hardship license and for 2 years after getting your hardship restriction removed. This requirement applies to anyone who has 2 or more DUI convictions and is reinstating on or after January 1, 2006.

Out of State Ignition Interlock Programs

mass_ignition_interlock_deviceUnder Melanie’s Law, the Massachusetts Registry of Motor Vehicles requires those with 2 or more DUI convictions on their records to use a certified ignition interlock device while on any hardship license and for 2 year after getting a full license reinstatement.

Some other states, such as Arizona, require first DUI offenders to use the ignition interlock device. Some states require interlock for 6 months and others, such as Arizona, require first offenders to use the ignition interlock device for one (1) year.

When a Massachusetts license holder is convicted of an out of state DUI in a state which requires ignition interlock devices for 1st offenders, the Registry has refused to reinstate the OUI defendant’s Massachusetts license unless and until the defendant satisfies the ignition interlock requirement.

In some circumstances, it is possible to serve out of state ignition interlock requirements here in Massachusetts. Likewise, it is possible to serve Massachusetts ignition interlock restrictions in other states. When a driver participates in an out of state ignition interlock program, the driver must select an interlock vendor which operates both in Massachusetts and the other state. Special arrangements with the Registry need to be made for participation in an out of state ignition interlock program.

Incidentally, legislation has been proposed here in Massachusetts to require first offenders to use the ignition interlock for 180 days. This is likely to pass, as it has received strong support from Mothers Against Drunk Driving and it is consistent with what numerous other states with strong anti-drunk driving reputations are doing.

Souza v. Registrar: CWOFs in Massachusetts Drunk Driving Cases

cwofOn October 28, 2005, “Melanie’s Law,” became effective. It substantially increased the penalties for Operating Under the Influence (“OUI”) by increasing the chemical test refusal (“CTR”) suspension period from one year to three years for those who refuse a Breathalyzer with a prior conviction. It also increased, from 3 years to 5 years, the penalties for those who refuse with two prior OUI convictions. It imposed lifetime CTR revocations for those with 3 prior OUI convictions. Further, it eliminated the ability to obtain a fifteen-day temporary license and imposed the CTR suspensions immediately upon the refusal.

On April 5, 2006, Chief Justice of the District Court Lynda M. Connolly promulgated a memorandum to District Court Judges, Clerk-Magistrates, and Chief Probation Officers regarding “Chapter 122 of the Acts of 2005: ‘Melanie’s Law.’” Therein, regarding “Registry / Administrative Penalties…for breath test refusal” she stated, “[t]he extended periods of suspension require a previous conviction; a program assignment, as a prior drunk driving disposition, will not trigger extended test refusal suspension.”

Commencing on December 13, 2006, the Board of Appeal on Liability Policies and Bonds reduced breathalyzer refusal suspensions which were predicted on prior operating under the influence cases which were continued without a finding (CWOF’ed) and dismissed. Registry Attorney Brian E. Simoneau routinely convinced the RMV Appeals Board to reduce these suspensions on the grounds that a DUI case resolved by an admission to sufficient facts and continuance without a finding was not a “conviction,” as required by the Mass. drunk driving law to extend a chemical test refusal administrative license suspension.

The Board continued ordering breath test refusal suspension reductions until December 10, 2009. There, the Registry claimed for the first time that an admission to sufficient facts was tantamount to a guilty plea which was to be deemed a conviction for the purposes of the implied consent law. The Board accepted the Registry’s “purpose centered” argument.

Predictably, the Appeals Board’s departure from its longstanding practice of reducing chemical test refusal suspensions predicated on admissions to sufficient facts, CWOFs, and dismissals in prior Massachusetts DUI cases was challenged in Superior Court. Attorney Brian Simoneau lead the charge and coordinated appeals with various lawyers throughout Massachusetts.

Due to Attorney Simoneau’s efforts, favorable verdicts were achieved starting with the case of Picariello v. Board of Appeal & Registry of Motor Vehicles, Docket No.: ESCV2010-0426C (Cornetta, J.) (2011), where the Court ruled that there were “problems of a legal nature associated with the agency’s final determination” that CWOFs count and that “the agency decision upholding the Registry’s action violates Ch. 30A s. 14 in that it is ‘in excess of (the) statutory authority’ granted to the agency by the legislature.” This was the first in a line of numerous Superior Court cases where the Registry’s view of the law was rejected and the Court’s agreed with Attorney Simoneau, that CWOFs couldn’t be counted to increase breath test refusal license suspensions.

In the case of Paul J. Souza  v. Registrar, a lawyer challenged an increased breathalyzer refusal suspension without Attorney Simoneau’s involvement. The result: the court sided with the Registry. This case worked its way to the Mass. SJC, where Attorney Simoneau filed an amicus brief on behalf of the Massachusetts Association of Criminal Defense Lawyers. In the Souza Decision, the Supreme Judicial Court adopted Attorney Simoneau’s legal arguments and ruled, finally, that CWOFs do not count towards chemical test refusal suspensions.

The day after the Souza decision was published, a bill was filed to change the Massachusetts Drunk Driving Law, so that prior DUI cases resolved by admissions and CWOFs will count towards breathalyzer refusal suspensions. This law was unanimously passed by the Massachusetts Senate on May 23rd and will be sent to the Governor for signature in the very near future.

If you have questions regarding the Souza decision, and now it might allow you to get your license reinstated or get a hardship license, contact Attorney Simoneau at 508-656-0057 or by filling out the contact form on this site.

The Souza SJC Decision & Melanie’s Law

souza_registrar_breathalzyer_refusalMy office has been inundated by inquiries regarding the case of Souza v. Registrar of Motor Vehicles. I am very familiar with this case, as I have been fighting the Registry on this issue for years and I wrote the amicus brief in the Souza case. In Souza, the SJC adopted the legal arguments which I raised in the brief.

Souza only applies to chemical test refusal suspensions. This means that if you are a second offender who took a breath test in connection with your second offense DUI, Souza does nothing for you. The misconceptions regarding the impact of the Souza decision are likely the product of sensationalist reporting by the media and wishful thinking on the part of those serving DUI suspensions.

The Souza decision does not mean that your first offense DUI never happened. It only means that if a DUI was resolved by an admission to sufficient facts and a CWOF, it should not count against you in the event that you are arrested for OUI again and you refuse a breath test. Thus, it only applies to you if you have a recent chemical test refusal suspension.

If you have any questions as to whether Souza applies to you, please call my office for a free consultation and review of your case. Do not waste your time and the Registry’s time by appealing a suspension when Souza does not apply. The decision has been misunderstood by many, including some lawyers who have been sending their clients to the Registry only to find out that the SJC’s decision has no applicability to their situation.

On the other hand, if you are a 2nd, 3rd, or 4th offender and you refused the breath test with respect to your most recent DUI arrest, I can probably reduce your breathalyzer refusal suspension. This is important because the Registry runs DUI suspensions first. These are followed by OUI suspensions. For example, if you have a 3 year breathalyzer refusal suspension and 2 year DUI suspension, the breathalyzer refusal suspension will run first. If it is reduced to from 3 years to 180 days, your total suspension time can be reduced from 5 years to 2 ½ years.

Contact me with any questions regarding Melanie’s Law and how the Souza SJC decision may help you get your license reinstated or reduce your waiting time before applying for a 12 hour hardship license.

There is legislation which is scheduled to be debated on Wednesday, May 23rd in the Senate which would make CWOFs count towards breathalyzer refusal suspensions. This new law is likely to pass in the very near future.

CWOFs & Breathalzyer Refusal Appeals: “Loophole” in Melanie’s Law

NEW BREATH TESTFor years prior to December 10, 2009, the Board of Appeal had been ordering the Registry to reduce breathalyzer refusal suspensions which were increased based on the driver having a prior DUI which was resolved by an admission to sufficient facts and continuance without a finding (CWOF). The basis for reducing these license suspensions was that a CWOF was not a conviction and the Massachusetts implied consent law required convictions.

On December 10, 2009, the Registry filed a legal memorandum opposing the reductions, claiming that admissions to sufficient facts were pleas of guilty and, therefore, convictions. The Registry convinced the Board of Appeal to stop reducing breath test refusal suspensions and, not surprisingly, the issue was appealed.

Aggrieved drivers challenged the Board’s departure from its prior practice of reducing CTR suspensions that were enhanced based on an admission to sufficient facts, a CWOF and dismissal.  The first challenge resulted in a judge finding that there were “problems of a legal nature associated with the agency’s final determination” that a CWOF counts as a conviction, and ultimately decided that “the legislature has not granted the Registry of Motor Vehicles the authority to administratively suspend the plaintiff’s driver[’]s license for the period of time it seeks to do so in this case.”  Accordingly, the court held “the agency decision upholding the Registry’s action violates Ch. 30A s. 14 in that it is ‘in excess of (the) statutory authority’ granted to the agency by the legislature.”
Numerous Superior Court Judges agreed with me, that an admission to sufficient facts and resulting CWOF was not a “conviction” under the Massachusetts Breathalyzer Refusal law. However, in the case of Paul Souza v. Registrar of Motor  Vehicles, a Norfolk Superior Court Judge sided with the Registry and refused to order the reduction of a 3 year chemical test refusal suspension to 180 days. This ruling was appealed to the Massachusetts Supreme Judicial Court and I had the privilege of submitting an amicus brief to the Court.

On Thursday, May 17, 2012, the Mass. SJC decided that I was right and the Registry was wrong. Admissions to sufficient facts and CWOFs cannot be used to increase Massachusetts chemical test refusal suspensions. The Boston Herald reported that “Registrar of Motor Vehicles Rachel Kaprielian said the agency is reviewing the decision ‘and determining the administrative course of action to be taken as a result.’” The day after the decision was released, Senator Bruce Tarr filed a bill with the Massachusetts Legislature  to make CWOFs count towards breath test refusal suspensions. It is scheduled to be debated in the senate next week. Lawmakers claim that the Court’s ruling has created a “loophole” in Melanie’s Law, which they need to close.

Stiffer Penalties Proposed for Mass. Habitual Traffic Offenders

mass_habitual_traffic_offender_lawyerChanges may be on the horizon for those determined to be habitual traffic offenders in Massachusetts. Last August, Senator Bruce E. Tarr (R) of Gloucester filed Senate Bill 2012, “An Act Promoting Motor Vehicle Safety.” A more appropriate title would have been “An Act to Substantially increase Habitual Traffic Offender penalties in Massachusetts.” Senator Tarr filed the bill in response to the death of a teenager who had been struck and killed by a driver who had his license suspended 16 times prior to the fatal accident.

Currently, habitual traffic offenders result in 4 year revocations, with the ability to apply for a hardship license, which is also known as a work or Cinderella License, after serving 1 year. HTO revocations are triggered convictions of 12 minor motor vehicle violations, such as speeding, or 3 major violations such as DUI, operating to endanger, leaving the scene of an accident, operating after suspension, unlicensed operation, and using a vehicle in the commission of a felony.

If passed, the new Massachusetts Habitual Traffic Offender Law will require the Registry to revoke a Habitual Traffic Offender’s license for 5 years instead of 4 years. It will create a new “level 2” Habitual Traffic Offender category for those who were previously determined to be Habitual Traffic Offenders. The Registry of Motor Vehicles will revoke the license of a “level 2” Habitual Traffic Offender from at least 5 years up to 15 years.

Under the proposed bill, the RMV will have discretion to revoke the licenses of serious repeat Habitual Traffic Offenders for life.

Regardless of whether a Habitual Traffic Offender is classified as a level 1, 2, or 3, the new law will give Registry of Motor Vehicles the ability to impose reinstatement requirements such as the completion of courses, classes, a competency road test, or other reinstatement conditions.

This Bill has received strong support from both the House and Senate. It appears likely to pass.

No Right to Lawyer Before Taking Breathalyzer

breathalzyer_refusal_lawyerSometimes, a person arrested for drunk driving in Massachusetts will refuse to submit to a chemical breath test unless he or she has an opportunity to speak with an attorney. A request by a police officer for a Massachusetts DUI suspect to take a breathalyzer does not trigger constitutional or statutory right to consult with a DUI lawyer prior to submitting to the breath test. In Massachusetts, unlike in some other states, refusing to take a chemical test in a DUI case is not a crime. Your license may be suspended for 6 months up to life. However, you will not face criminal prosecution for refusing to take a breathalyzer test.

Under the Massachusetts breathalyzer refusal law, G.L. c. 90 § 24(1)(f)(1), a simple request to consult an attorney cannot be interpreted as a breathalyzer refusal. However, repeatedly insisting on speaking with a lawyer prior to taking the test, or agreeing to take a breath test only after prior consultation with an attorney, will likely constitute a breathalyzer refusal which will trigger a license suspension ranging from 180 days to life. It may also trigger a CDL disqualification.

The Mass. implied consent law does not require that an attorney be consulted as a pre-condition to a breath test. A breathalyzer test is exactly the type of physical or real evidence to which the fifth amendment privilege against self-incrimination does not apply. This is because the breathalyzer test is not testimonial in nature. Also, the request for a breath sample is not the initiation of adversarial judicial proceedings sufficient to invoke the 6th amendment right to counsel.

Sometimes a person arrested for OUI will simply ignore requests to take a breathalyzer. Refusal suspensions have been upheld when the person arrested remained silent in response to questions from the police about whether he understood his rights and wanted to take the test. Uncooperative behavior which obstructs the breath testing process can be construed as a “constructive refusal.” Even if a driver verbally agrees to taking the breathalyzer sample, his or her subsequent defiant conduct can be construed as a refusal.

Breathalzyer Refusal Revocations for Insufficient Breath Samples

breathalyzer_attorneyTo avoid a “breath test refusal” license revocation in Massachusetts, those arrested for drunk driving must provide two long and continuous breath samples, so that the breathalyzer registers the air volume as sufficient and produces a BAC result. When the person taking the test provides an insufficient volume of breath, no alcohol reading will register.

Massachusetts police departments use breathalyzers manufactured by Draeger Safety Diagnostics, Inc. Some Departments use the Alcotest 7110 MKIII-C and all Massachusetts Police Departments are transitioning to the Drager Alcotest 9510. Both of these units require a considerable amount of breath to operate. The Alcotest’s infrared chamber captures and analyzes the breath sample provided, which consists of deep lung air. Both breathalyzer models require 1.5 liters of breath volume to register BAC readings. If a person does not blow long or hard enough, the breathalyzer will not produce a blood alcohol reading and the police will consider the driver’s conduct a “refusal.” Police officers have been instructed that failure to provide a proper breath sample constitutes a “refusal.” However, this definition of a “refusal” may be too broad.

Sometimes, the failure to provide sufficient breath samples is intentional. The driver deliberately does not blow long or hard enough, so the breathalyzer will not record his blood alcohol content. However, in other cases, the driver cannot provide a sufficient sample due to a respiratory or other medical condition. For example, those with COPD, emphysema, asthma, lung cancer, or related respiratory conditions may not be able to blow long or hard enough to satisfy the breathalyzer. Also, there have been documented cases of women over 60 years of age being charged with chemical test refusals because they were physically incapable of providing the required sample of 1.5 liters of breath.

To summarize, if a driver who is stopped for driving under the influence of alcohol (DUI) in Massachusetts fails to provide a sufficient breath sample for testing as directed by a police officer, the failure will be construed as a breathalyzer refusal, resulting a license suspension. This chemical test refusal suspension can only be avoided if the driver can convince the Registry or Court the failure was due to his or her physical inability caused by a medical condition unrelated to any consumption of alcohol.

In order to avoid a license suspension ranging from 6 months to life, breathalyzer refusal suspensions should be appealed to the Registry, District Court, or Board of Appeal. The avenue of appeal will depend on the suspension reason and type of appeal. If you have received a letter from the Mass. RMV regarding a chemical test refusal suspension, you should contact a lawyer, such as Attorney Brian E. Simoneau, who has successfully challenged a large number of breathalyzer refusal suspensions and gotten his clients’ licenses reinstated. If you are physically incapable of completing a breath test, the Registry should not suspend your license.




Mass. Drunk Driving Records Public

drunk_driving_recordsThere seems to be a major misconception regarding the privacy and confidentiality of driving records, including those containing convictions for DUI, drunk driving, operating on a revoked license, driver’s license fraud, immediate threat suspensions, and other incidents. The Driver’s Privacy Protection Act (DPPA), protects certain “personal information” such a driver’s social security number, age, height, photograph, and address.

However, the Registry routinely provides other information on a daily basis. Information is sought by a variety of people for a variety of reasons. Law enforcement agencies rely on it in order to identify accurately specific individuals and vehicles involved in incidents that may constitute violations of the motor vehicle laws. Insurance companies use it to identify accurately the licensed drivers and motor vehicles involved in particular accidents; members of the general public also use it for this reason. The data is sought for other purposes as well. Family members use it when searching for lost relatives. Lawyers use driver’s license data when searching for clients or locating witnesses. Employers and potential employers of commercial interstate drivers, where the minimum age is 21, may use it to verify the driving record and age of applicants or employees. The information is also requested for purposes of medical research, public safety, and consumer awareness.

In addition to these general public purposes, the public uses the Registry information at issue in order to fulfill its role as a “watchdog” of government enforcement of the motor vehicle laws. The importance of this role was acknowledged, and the role itself facilitated, by the passage in 1990 of the Lacey Packer Bill. Lacey Packer was 10 years old when she was killed by a drunk driver. Anti-drunk driving and motor vehicle safety advocates used her case to lobby for tougher drunk-driving penalties. The result was the Lacey Packer Bill, adding to G.L. c. 90, § 30 the requirement that the Registrar maintain “a record of all convictions of persons charged with violations of the laws relating to motor vehicles, and notwithstanding any general or special law to the contrary, such record shall be public …” With the aid of Registry information, members of the public are thus able to monitor the enforcement of motor vehicle laws.

The Lacy Packer Bill, allows any person to inspect the Registrar’s records of all convictions of persons charged with motor vehicle offenses. In effect, this allows citizens to act as “watchdogs” over their fellow citizens’ driving histories. It also gives the public oversight of Registry decisions regarding whether license applicants are suitable to maintain their licenses in light of their driving histories; in this way the public can assist the Registry in administering the proper licensing of drivers in Massachusetts.

Anyone facing a drunk driving charge in Massachusetts should be aware that despite any sealing of his or her criminal record, DUI conviction data accessible by anyone.

Mass. Regsitry Social Security Number Requirements

Social Security CardWhen applying for a driver’s license in Massachusetts, you must provide your social security number to the Mass. RMV. The Registry will not use your social security number as your license number or print it on your license. However, the RMV will cross reference the number provided with the Social Security Administration to insure that the number is valid.

Pursuant to G.L. c. 90 § 24B, providing a false social security number or someone else’s social security number when applying for a Massachusetts license is a felony which carries a maximum sentence of 5 years in state prison and a mandatory revocation of your license or right to operate. Only when the Social Security On-Line Verification system confirms your social security number will you be allowed to proceed with the transaction. If the verification system shows that the Social Security number belongs to someone else, the case will be referred to the RMV Special Investigations Unit and no license, learner’s permit, or ID car will be issued. If there is a discrepancy, you will be sent to the Social Security Administration to clear it.

The RMV requires each license, permit, or ID applicant to provide his or her social security number, because it is a “universal identifier,” particularly given the high mobility of U.S. drivers. The social security number allows the Registrar to properly screen Massachusetts drivers through the National Driver Register, thereby detecting bad drivers while minimizing any inconvenience to good drivers.

Anyone applying for a Mass. Driver’s License or Learner’s Permit must provide proof of their address, date of birth, and signature. This proof must come from 3 separate approved documents. The Massachusetts Registry generally does not accept photocopies and requires original documents. The Registry accepts most non-expired immigration documents such as a Permanent Resident Card or “green card,” employment authorization card, and other such INS documents. Only certain classes of visas are acceptable. In lieu of a social security card, the Registry will also accept a federal social security number (SSN) card denial notice as acceptable proof of identity. This must come from the Social Security Administration and it cannot be more than 60 days old.

The Registry will also check your name and social security number with the National Driver Register and the Problem Driver Pointer System (PDPS). The NDR is an interstate database of driving records and the PDPS is a system which tracks problem drivers whose licenses are suspended or revoked. If your license or right to operate is suspended or revoked, the Registry will not issue you a Massachusetts license or renew your existing license. Instead, the RMV will direct you to the state where the suspension or revocation was initiated. It often makes sense to consult with a lawyer if you have a NDR block on your license.