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Souza v. Registrar: CWOFs in Massachusetts Drunk Driving Cases

Massachusetts Registry News

On 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.

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