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First Offender or Second Offender?

Mass. RMV Q&A

I received this inquiry from a gentleman who made the mistake of representing himself in court on a DUI charge.

Long story short, the courts did not have my driving record/criminal record in front of them before I appeared before the court, so they tried me as a first time OUI offender. I didn’t have a lawyer and the DA pretty much was the only one that talked to me about just my deal, not consequences if I took such deal. He dropped both reasons why I was pulled over and charged me the DUI. Supposedly I blew .31 which, which I felt was a lie or the machine used didn’t work properly.

Officer pulled me over for doing a visual speeding determination (wasn’t clocked), also in the report, he said I didn’t signal for a car in front of me, why do I have to signal a car in front of me? Was I speeding no!! He said I looked to be doing 60 MPH in a 40 MPH Zone, but the police officer didn’t clock it. It was 2:00 AM and I felt since no one was out except me, and the fact that I’m black, why not give me a hard time. Anyways they dropped speeding, and failing to signal, charged for the OUI.

I go to court that next Monday, was the last to see the judge, they did not have my past in front of them from California, so to them I haven’t got in trouble and gave me a continue without a finding (CWOF) 1st offender OUI.

Cool I guess until I did everything I was supposed to do to get my license back after the 45 day first offense license suspension. I got a letter saying 30 days suspension, for failing the breathalyzer, which I did and when I called the Registry of Motor Vehicles (857-368-8200), I was told $500, proof of program enrollment, letter from work! I see the RMV hearing officer, she brought up my prior OUI in CA back in 2014 and said RMV is going make this my second drunk driving offense! This means that I can get nothing because I’m doing a first offender program on a 2nd offender case. I have two kids. I lost my job, hard to make it to my class, and all of this cost money. I can’t make money if I can’t work. I don’t live near public transportation, and I do carpentry, delivery and landscape which requires tools, equipment, etc… If I can’t work, how do I make money? What do I do?

The Answer:

Unfortunately, you fell into a trap by not having a lawyer to properly advise you as to the harsh license suspension consequences associated with your plea. Regardless of how the court handled the case, for license suspension purposes, you are a second offender and you will have an automatic 2-year license suspension. You can be considered for a hardship by doing before the Board of Appeal, after you have completed the 24D alcohol program. You will need substantial documentation showing that you have a legitimate need to drive for work, school, or medical reasons and a “low risk of recidivism.” You cannot get a hardship license directly from the RMV without going to the Board, because you are a 2nd offender with a 1st offender program.

Also, as a second offender, your will be required to use an ignition interlock device during the entire term of any work license and for at least 2 years after converting the Cinderella license into a full-time license. There are absolutely no exceptions to this statutory requirement.

This case illustrates the importance of being represented by competent legal counsel. Anyone who is charged with Operating Under the Influence in Massachusetts is entitled to be represented by a lawyer and if the defendant cannot afford a lawyer, he or she is entitled to a court-appointed public defender.

This situation occurs repeatedly throughout the Commonwealth and it shows that how the court treats a particular DUI case will not necessarily control how the Registry interprets it for license revocation purposes. This is because the length of suspensions and revocations is determined solely by the defendant’s driving record and Massachusetts employ a lifetime lookback period.

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