Converting Criminal Offenses to Civil Infractions

Under a little known law, G.L. c. 277, § 70C, a criminal automobile law violation such as operating after suspension or revocation can be handled as a civil instead of criminal violation. This may seem like a very attractive option, as it avoids giving the defendant a “criminal conviction.” However, it should be noted that for Registry of Motor Vehicles purposes, a criminal offense which is treated as a civil infraction in court is still regarded as “responsible” finding in accordance with the laws governing licenses suspensions and revocations. This means that the Registry and license suspension consequences will be the same. The “responsible” finding will be treated as a conviction and it will trigger an automatic license revocation. Also, the responsible finding will could as a “surchargeable event” for the purposes of insurance premium calculation and for the Mass. Habitual traffic offender law.

For the above-mentioned reasons, defense lawyers should think twice before agreeing to a plea bargain whereby a criminal offense such as operating after revocation or suspension will be disposed of as a civil violation. For RMV purposes, the outcome will be exactly the same: the client will lose his or her license.

A better outcome, which would avoid an automatic license suspension would be to have the case continued without a finding (CWOF’ed). Under this scenario, the defendant will make an admission to sufficient facts and the case will be continued without any finding of guilty for a pre-determined period of time. So long as the defendant doesn’t violate the terms of the continuance, the case will be dismissed and no license suspension will be triggered.

Certain offenses are ineligible for conversion to civil offenses and decriminalization. These include any type of operating under the influence in violation of G.L. c. 90 § 24, Juvenile Delinquency offenses, Leaving the Scene of an accident, drag racing, vehicular homicide, and various other criminal offenses which are exempt from conversion and decriminalization by statute.

It bears repeating that the Registry is legally entitled to treat any civil “responsible” disposition for a criminal offense which was converted as a guilty finding and conviction for the purposes of imposing statutory license suspensions and revocations. Therefore, a defendant facing a mandatory license suspension may be better off with a CWOF and, eventually, a dismissal pursuant to G.L. c. 278 § 18 instead of a responsible finding which will result in the loss of his or her license; this can be a very unpleasant surprise.

Massachusetts Driver’s License Suspensions

The Registry of Motor Vehicles will suspend your driver’s license or right to operate in Massachusetts for various reasons which have absolutely nothing to do with driving. For example, the crime of “tagging” carries an automatic 1 year license suspension upon conviction. Also, drug convictions will result in license suspensions ranging from 1 to 5 years. Theft or concealment of a motor vehicle will also result in a license suspension. All of these suspensions are reviewable by filing an appeal with the RMV Board of Appeal.

The Registry will also suspend your license indefinitely for giving the registry a “bad check,” and for non-payment of child support, taxes, property damage claims, or traffic citations. No hardship license is available in these cases and there’s nothing than be done. You will not get your license back until you pay what you owe plus any reinstatement fees. Sex offenders who fail to register as well as those who have active arrest warrants will also have their licenses indefinitely suspended. There is no hardship eligibility for these indefinite license suspensions.

Unpaid parking tickets and excise taxes will not result in the suspension or revocation of your driver’s license. Instead, if you have any of these outstanding obligations, your license will be non-renewable and you will have to pay what you owe when it comes time to renew your driver’s license or motor vehicle registration.  Payment must be made to the city or town where the vehicle is garaged or where the parking tickets were issued and you must supply proof of payment to the RMV.

In the vast majority of cases, license suspensions for failure to take required classes such as the National Safety Council Attitudinal Course or the State Courts Against Road Rage (SCARR) program can only be resolved by taking the required classes and hardship licenses are not granted for these suspensions. Similarly, hardship licenses are not granted for Immediate Threat Suspensions or Immediate Threat Medical suspensions. Instead, it may be possible to resolve these fully at a Registry or Board of Appeal hearing. A lawyer may be able to help you.

In conclusion, sometimes a lawyer can help you get a hardship license or full restoration of your driver’s license and in other cases, there’s nothing that even the best lawyer can do for you. In these cases, the only way to get your license back is to pay what you owe and/or satisfy the Registry’s license reinstatement requirements. In Massachusetts, as explained above, not every suspension qualifies for the issuance of a hardship or Cinderella license.

Expunge OUI & Chemical Test Refusal?

Here’s the situation:

RMV has record of arrest for OUI and chemical refusal based on stop found to be illegal (no probable cause). I want to erase record of arrest and refusal from RMV records. Criminal case already dismissed with prejudice.

 The case was heard in District Court and was dismissed with prejudice. The  time for the prosecution to appeal the dismissal has lapsed.The officer stopped me at approximately 2:00 am in the parking lot of a hotel  that had been destroyed approximately a year earlier.  However, there were no barriers, such as chains, cement blocks, cones, or bollards physically preventing entry, and “no trespassing” signs were, by the officer’s own admission, inconspicuous and not visible in nighttime, and I hadn’t driven beyond any of the “no trespassing” signs anyhow.  A person not familiar with the area and following directions from a GPS device would have no prior knowledge that the hotel was abandoned; hotels are inherently places that are visited by people local to the area.In an attempt to sustain a “community caretaking” justification for the stop the officer stated in his report that there had been recent thefts of materials from area buildings. However, when pressed the police could not produce any such reports of actual material thefts.  His statement about such recent theft incidents was a lie.  Furthermore, that I was driving a late model passenger sedan, a 2008 Volvo, was inconsistent with the type of vehicle commonly used in the theft of copper from buildings.  (The officer states in his report he saw a 2002 Audi A4, which is wrong.  He thought he was supposed to see a 2002 Audi A4 based on the registration I handed him so that’s what he wrote in the report that he “saw,” but the slip from the tow company correctly indicates the type of vehicle that was actually present.)

As you see, the judge found the officer had no probable cause to initiate the stop.  The stop was found to be illegal and the motion was allowed.  While the criminal case is concluded I would like to consider whatever further courses of action may be available to

1) seal or expunge record of the arrest and chemical test refusal with the RMV
2) seal or expunge record of the arrest on my CORI
3) pursue redress of the officer’s violation of my civil rights, either in state or federal court, in that he detained and arrested me with no probable cause to do so, forcing me to spend money on attorney’s fees and other court expenses, to miss work, and other obvious consequences of a prosecution initiated without probable cause.
4) if the officer’s report is supposed to be under oath, initiate a perjury prosecution against the officer in that he falsely claimed incidents (the thefts of materials from area buildings) that did not occur in an attempt to justify probable cause for a stop where he knew it didn’t exist.
Furthermore, with regard to the RMV, at the original hearing regarding the officer’s claim of refusal (which I dispute), the police withheld exculpatory evidence, namely a report showing that I passed the horizontal gaze nystagmus (HGN).  For the appeal of the RMV decision in district court it emerged that the RMV failed to forward some of the evidence from the original hearing, namely some photographs of the location at which the arrest took place and the accompanying comments I wrote on the back of those photographs.  This is relevant because the judge at this appeal hearing was very strict that the evidence had to be the same.  That means that the evidence can’t be expanded but it can’t be reduced either.
Answer: There’s no way to expunge the Registry records. While you may be able to seal the CORI, you cannot seal your RMV record.

Massachusetts Payment Default Suspensions

Sometimes driver’s receive traffic citations by mail or under other circumstances and they claim that they were the victims of some type of mistaken identity or identity theft, where someone else actually committed the motor vehicle violations.

In some instances, as described below, the driver claims that the citation was issued improperly:

New resident to the state. In October I sent in an appeals notice with a check for a late Sep violation. Nothing was ever sent to me. I contacted RMV and they said they had no record of my ticket but that I would be responsible in case officer decided to submit the violation whenever he felt like it according to some MA code. Luckily I’d scanned the ticket so I give them number and officer’s name but with no violation on file, I was told there was nothing they could do and that I should hunt down the original officer and ask him to submit the violation since I no longer had my own copy because I’d mailed it to them with a check. They also said he may or may not submit it. I told them I’d filed a complaint against this officer as what I deemed was extreme verbally aggressive behavior and that particular complaint was resolved by their Sergeant  w ho handles it. I told this go between person that I was not contacting an officer that I filed a complaint against as I’d already suffered emotional distress from our encounter. I was then told to call the sergeant, but I no longer had his name and none of those numbers they give you allow you to speak to any one. You can only leave a message. By now it didn’t matter because December I got a notice saying I have to pay fine and fees or my license will be suspended end of December. I apparently am no longer even allowed to appeal this violation and am just supposed to pay.

In cases such as this, the driver has two options. First, the driver can contest the citation by mailing it in to the address listed on the back of the citation and checking the box on the citation indicating that the alleged violator wants to exercise his or her rights to appeal the citation. When a driver elects this option, the court system having jurisdiction over the location where the citation was issued will schedule the matter for a hearing before a clerk-magistrate. If you can satisfy the clerk-magistrate that you were improperly cited or you were not the person named in the citation, he or she will issue a not responsible finding and the matter will be closed. The clerk’s office will notify the Registry and your driving record will list the finding as “NR,” for “not responsible.” The Registry will not count the violation against you for 7 surchargeable event or habitual traffic offender revocation purposes.

If the 20 day appeal period has expired, the Massachusetts Registry of Motor Vehicles will automatically suspend your driver’s license or right to operate indefinitely for “payment default.” Your license will remain suspended until you pay the citation or the matter is otherwise resolved. There are 3 ways to resolve a citation after the appeal period has expired. First, you can go to the courthouse having jurisdiction over the location where the violation allegedly occurred and ask for a late hearing. There is no right to such a hearing and it is completely up to the clerk’s office as to whether or not to grant a hearing once the appeal period has expired. Second, the Registry will accept a signed original letter, on police letterhead, from the officer who issued the citation or his or her supervisor, stating that the citation was issued in error. Third, you can exercise your right to appeal the suspension to the Massachusetts Board of Appeal. In some cases, the Board has ordered the Registry to grant a late appeal.

These are the only 3 ways to resolve a citation, other than paying it, after the 20 day appeal period as lapsed. If you do not resolve the citation in one of the above-listed ways, you will not be eligible for a full reinstatement or even a restricted hardship license unless and until you pay the citation and any required late and reinstatement fees. The Registry makes no exception to this rule. You cannot get a hardship license of any kind while your license is under suspension for non-payment of any financial obligation, including payment default.

NH Financial Responsibility Requirements

If you have an out of state drunk driving conviction, you may be required to get an SR-22 Insurance Certificate. This document shows that you have liability insurance. The New Hampshire Department of Motor  Vehicles calls this proof of “Financial Responsibility.” New Hampshire requires this because there is no compulsory liability insurance requirement in New Hampshire as there is in Massachusetts.

Getting an SR-22 certificate will require attending a hearing at the Registry of Motor Vehicles, Driver Control Unit. A hearing s required because Massachusetts insurance companies will not issue you an insurance policy if you have a suspended license. You will need to get a temporary reinstatement in Massachusetts, so that you can get liability insurance.

Once you have proof of insurance or “financial responsibility” in the form of an SR-22 Certificate, you must present this to the Department of Motor Vehicles in the state where your DUI conviction occurred. Once acceptable proof of financial responsibility is provided to the other state, the DMV should remove the block on your license record in the National Driver Registry, so that you can fully reinstate your Massachusetts Driver’s License.

However, you should realize that if the Massachusetts Registry is notified of an out of state DUI conviction, it will be applied to your record and it may trigger an additional suspension because of the law which requires the Registry to treat out of state motor vehicle violations as if they had occurred here in Massachusetts, when the violation is committed by Massachusetts resident or the holder of a Massachusetts Driver’s License.

If you were not a Mass. resident or license holder,  the Registry does not have the legal ability to suspend or revoke your license or right to operate because of the out of state conviction. However, the Registry is required to suspend your Mass. License or right to drive if your are blocked in the NDR because of the out of state offense.

Getting a temporary 30 day license so that you can get an SR-22 insurance certificate may be difficult and confusing, depending on your driving record and the facts of your case. A hardship license attorney may be able to assist you with this process. The Registry will not issue temporary licenses without official documents from the state where the suspension originated. You will need to provide either a “catch-22” letter or a “SR-22” letter issued by the out of state motor vehicle department (DMV). This letter cannot me more than thirty (30) days old and it must be an original letter on official letterhead.  You may also need to submit a certified copy of your driving record or court records from the state where the OUI offense or other motor vehicle violation occurred.

Once the Registry grants you a temporary reinstatement, you only have thirty (30) days to get the matter resolved. If the situation remains  unresolved beyond 30 days, the Mass. Registry will automatically re-suspend your license and you will have to repeat the entire SR-22 process all over again. Contact a Lawyer for more information.

Driving Class Q&A

Situation:

My son is 18 years old. He signed up for Marine Corp boot camp at Parris Island, SC and left on Labor Day. A few weeks prior he received a speeding ticket for going 75 MPH on Mass. 195. I wanted him to contest the $200 speeding ticket to ask for some leniency considering his decision to enter the Marines coupled with the fact that he was “only” going 75 on a US interstate highway. Two police officer friends of mine said this was somewhat of a petty citation.  My son’s Marine recruiter said we had to pay it and supply a receipt prior to his ship date which I did. After he left I received the dreaded letter in the mail stating his license was revoked for 90 days, $500 reinstatement which in and of itself would be understandable. However, he only has 10 days of leave which started Monday. The RMV does not have the SCARR classes available within that time frame and as I am sure you know he needs to take a full exam again!! Is there anything we can do? Should he go to Camp Pendleton, California and try to work it out during his school of infantry ( which is where he goes next ). I don’t even know if the Marines will give him the time to take those classes while in the school of infantry.

I fully respect the intent of these laws but feel this certainly would be an instance for some leniency considering my son has recently graduated a US Marine and only has 10 days leave since his graduation last Wednesday.

Please let me know if there is any recourse here.

The Answer:

Unfortunately, the RMV will not waive the class requirements. He will not be able to reinstate his license until he completes the classes and all of the other reinstatement requirements.

 

Don’t Drive Suspended, Get a Hardship License

In Massachusetts if you get caught operating after suspension, you will likely be arrested and your vehicle may be towed. You will have to appear in court and the criminal offense of driving while suspended will be added to your Massachusetts driving and criminal records. If you are convicted of operating after suspension or revocation in Massachusetts, you will have an loss of license added to your record, in addition to any other suspensions or revocations. Also, if your license was suspended for OUI and you’re found operating, you will face a minimum mandatory 60 days in jail. If you are on probation, being arrested for operating after suspension may result in a probation violation, which can have serious consequences.

In many cases, all of these consequences could have been avoided by receiving a hardship license issued by the Massachusetts Registry of Motor Vehicles or Board of Appeal. In my law practice, I have helped a large number of deserving clients obtain hardship licenses or early reinstatements of their full drivers licenses.

If the Registry has taken your driver’s license in Massachusetts, I urge you to contact me for a free review and analysis of your license suspension or revocation. After speaking with me, you will know exactly where you stand and what I can do to help you get your license back, so that you can drive legally without the fear of being arrested for operating after suspension.

If you have the misfortune of facing license suspension charges, you should contact a lawyer and take steps to ensure that you will not be convicted and face a new suspension. Also, depending on your prior record, a conviction for driving on a suspended license may trigger a 4 year habitual traffic offender revocation.

Don’t suffer with a suspension if you can legally drive with either a limited 12 hour Cinderella license or an early reinstatement of your regular driver’s license.

Appealing Habitual Traffic Offender Revocations

If the Registry of Motor Vehicles has labeled you as a habitual traffic offender, you will have a 4 year license revocation in addition to any other suspensions or revocations. Fortunately, I may be able to obtain a full reinstatement of your driver’s license or get you a 12 hour hardship license by appealing your HTO revocation.

There are some recognized exceptions to the habitual traffic offender law, which you might be able to use to get your license back. For example, if you have a clean driving record, any convictions relied upon for the habitual traffic offender revocation which occurred simultaneously or within a 6 hour period must be treated as only 1 conviction. This means that if you were cited for five traffic violations at the same time, the 5 violations can only be counted as one single infraction, when determining whether your license should be revoked for 4 years.

Not all motor vehicle violations count towards habitual traffic offender revocations. Even some of the violations which count towards 7 surchargeable event suspensions cannot be legally relied upon to trigger a 4 year loss of license under the Massachusetts HTO law.

Also, although the Mass. RMV is legally entitled to treat out-of-state convictions as if they were in state convictions, it is only legal to do this if the out of state convictions is substantially similar to a corresponding Massachusetts automobile law violation which would warrant a habitual traffic offender revocation. Not all out of state violations will necessarily count towards your designation as a habitual traffic offender here in Massachusetts.

Pursuant to G.L. c. 90, § 22F, those declared habitual traffic offenders by the Registry who have served one year of the four year license loss can be considered for a part-time license if they can demonstrate a sufficient hardship. The issuance of a hardship license is not guaranteed, even if the offender has served enough time and he or she meets the hardship requirements. Registry hearing officers have considerable discretion when it comes to early reinstatements and legal representation is strongly recommended, especially when appearing before the Board of Appeal or if you have a lengthy driving record.

There can be no recent evidence of driving to qualify for a hardship license and you must have completed the National Safety Council 8 hour Attitudinal Dynamics of Driving Course within 3 years of your hardship license hearing. There are no exceptions to this safe driving course completion requirement.

Address Outstanding Obligations Before Your Hearing

Before you appear before the Board of Appeal of the Division of Insurance, it is critical that you insure that all outstanding financial obligations have been satisfied in full, as having unpaid obligations may be construed as evidence of a lack of responsibility, which might reflect negatively on you and your case. Also, even if you win your appeal, the Registry will allow you to reinstate your license unless and until all outstanding financial obligations are paid.

You must pay any outstanding parking tickets, civil motor vehicle citations, child support, fast lane or EZ pass violations prior to your hearing. Also, if you are required to take the National Safety Council 8 hour attitudinal dynamics of driving (ADD) course for 7 surchargeable events or habitual traffic offender revocation, you will not get your license reinstated without having completed the required classes. JOL violators must also take the State Courts Against Road Rage (SCARR) program. Taking the classes and paying any outstanding tickets, fines, and fees may increase your chance your chances of winning. The Registry advocate will have a list of any outstanding issues and inform the Board members of them during your hearing.

One of the benefits of hiring a lawyer to represent you is that your attorney can help you identify and address any pending outstanding obligations before your hearing. The goal is to clean up your record, so that the only outstanding item is the suspension for which you are seeking a hardship license.