The Massachusetts Registry of Motor Vehicles determines the length of driver’s license suspensions based on the customer’s RMV record and the law. If, for example, an individual has 3 DUI offenses and the prosecutor was only able to prove one prior offense, the court would treat that person as a second offender while the Registry would treat the person as a third offender and impose an eight-year OUI third offense revocation. The standard of proof at the Registry is the preponderance of the evidence and information contained in driving records is considered prima facie evidence for Registry actions such as suspensions.
In a DUI trial, the Commonwealth is required to prove prior offenses “beyond a reasonable doubt.” This means that the prosecution must prove that the criminal defendant was previously convicted or assigned to a drug or alcohol education program and that the person named in the prior conviction records and the defendant currently on trial are the same person. If the prosecution is unable to prove these facts, the prior offense cannot be counted against the defendant by the court. However, if the prior convictions or program assignments appear on the defendant’s Registry record, the Mass. RMV is legally required to count them when calculating the length of an operating under the influence suspension and when determining hardship license eligibility.
Some people say that the “Registry can do whatever it wants.” This is absolutely not true in this case. Instead, the Registry is guided by the law and the contents of a person’s driving record. The RMV simply applies the law to the convictions and alcohol program assignments appearing on a person’s Registry record; this determines the suspension length. A more accurate statement would be that the Registry is not bound by the sentence imposed by the trial court when it is contrary to the official records maintained by the Registrar.
In Massachusetts, drunk driving cases are often “plea bargained” so that the court treats and sentences a third offender as a second offender. This outcome might allow the defendant to avoid incarceration and other serious consequences and penalties. However, it will not prevent the Registry from imposing an 8-year third offense OUI license revocation and a five (5) year breathalyzer refusal suspension if the defendant refused the breath test when he or she was arrested.
In some cases, for example, the customer’s driving record might list out of state DUI offenses which do not appear in Massachusetts court or probation records. It is completely permissible for the Registry to count these offenses when determining the length of a DWI suspension or when determining if a driver is a habitual traffic offender.
I continue to be amazed by the number of lawyers who do not understand how the Registry calculates license suspensions in Massachusetts, which are determined by the law and the contents of the defendant’s Registry of Motor Vehicles record. This formula is also used to determine whether or not a person is ignition interlock required.
The Massachusetts Registry of Motor Vehicles imposes license suspensions in varying lengths to penalize drivers who have refused to submit to a chemical breath or blood test, after having been arrested for operating under the influence. These license suspensions range in length from 6 months for first offenders 21 years of age or older, to lifetime for those with 3 prior drunk driving convictions or alcohol program assignments.
Under the Massachusetts implied consent law, in exchange for receiving a Driver’s License, Massachusetts residents agree to consent to a breath or blood test. A refusal to take such a test when arrested for DUI will result in an administrative license suspension. This suspension must be served first, prior to the service of any suspension resulting from the DUI conviction or program assignment. The law allows the Registry to “stack” these suspensions, meaning that the breathalyzer refusal suspension will be served first and the DUI suspension will be served afterwards. For example, a second offender in Massachusetts will have a 3 year breathalyzer refusal suspension which is followed by a 2 year DUI second offense suspension. Thus, the total suspension time is 5 years. 3 years for the refusal and 2 years for the DUI. Breath test refusal suspensions run consecutively in Massachusetts and this is authorized by law.
Unless you are a first offender or a “second chance first offender,” you cannot be considered for any type of work, hardship, or Cinderella license while a chemical test refusal suspension is in effect. There are absolutely no exceptions to this rule. This means that if your license has been revoked for life for refusing a breath or blood test with 3 prior DUI convictions or alcohol program assignments, you are permanently ineligible for any type of driver’s license. If you are a third offender, you must serve the 5 year refusal suspension before being considered and if you are a second offender, you must serve the 3 year refusal suspension prior to being considered for a hardship license.
If you hold a Commercial Driver’s License and you refused to take a breath or blood test you will have a separate CDL suspension, even if you were not operating a commercial motor vehicle at the time of your arrest. Two refusals or DUI convictions arising out of separate incidents will result in an automatic lifetime CDL revocation / disqualification.
You can appeal a breathalyzer refusal suspension within fifteen (15) days of the suspension by going before a hearing officer at the Registry’s main branch, during normal business hours, at 136 Blackstone Street in Boston. These chemical test refusal (CTR) appeals are granted only on limited grounds.
If the DUI charges are resolved in your favor, you have the right to a hearing before the judge who presided over the DUI trial to have the CTR suspension terminated early. The judge must make written findings and the prosecution has an opportunity to contest reinstatement on the grounds of public safety.
If you are a Massachusetts resident with 3 DUI convictions, you will have an 8 year OUI 3rd offense license revocation. You can be considered for a hardship license. However, you will likely be denied at the Registry and forced to go before the Board of Appeal. The Registry requires completion of a specific 90 day residential (in-patient) alcohol program as a condition for the issuance of a 3rd offender hardship license and few applicants have this required program.
Fortunately, the Board of Appeal can grant you a hardship license even if the Registry initially refuses to so. Massachusetts law gives the Board the legal authority to order the Registry to issue a license. Getting one of these orders from the appeals board will require scheduling and attending an evidentiary hearing before the 3 member Board. The Board members will be looking for certain documentation and information showing that the Appellant has a legitimate need to drive and his or her alcohol or drug issues have been brought under control such that granting a license would not represent a threat to public safety.
It is strongly recommended to have a lawyer represent you at the Board of Appeal because this is often your one and only opportunity to be granted hardship relief. If the Board denies your appeal, you may be forced to serve the remainder of your revocation period with no driver’s license. This often occurs because the person seeking hardship relief is unable to demonstrate, to the Board’s satisfaction, that he or she qualifies for relief and that any alcohol or substance abuse problem is being effectively addressed so that there is a low probability of relapse or recidivism.
There are many other things that can derail a hardship license appeal such as recent evidence of operation, unpaid child support, being suspended in another state, unresolved criminal charges, open cases, active warrants or defaults, insufficient documentation regarding alcohol or drug treatment, inadequate “sober time,” and/or violations of terms and conditions of probation.
If you are facing an 8 year license revocation as a third offender, please contact my office to discuss your case and how a hardship license attorney may be able to help you get back on the road, so that you can go to work and continue to support yourself and your family.