I recently received this inquiry:
I had a driving while under the influence of alcohol (DWI) in 2005. I pled out and received a CWOF (continuance without a finding). I recently had a DWI Drug offense and I was given a CWOF and the 24D alternative disposition. I was given 1 year of probation and the judge said license loss of 45 days. The court documents show a 45 day license suspension. I just received a letter from the Massachusetts RMV stating that my license was suspended for 2 years. Does the judge’s decision override the RMV decision? Am I able to appeal this suspension? Also, am I able to get a hardship license?
The answer is that the 2 year suspension is valid. In Massachusetts, DUI suspensions are based on the number of offenses appearing in the official records of the Registrar of Motor Vehicles. Here, the record shows that there was a DUI drugs case from 2005 which resulted in an admission to sufficient facts, CWOF, and substance abuse program assignment. For OUI suspension calculation purposes, this counts as a conviction.
With the prior program assignment on the defendant’s record, the judge’s order of a 45 day license suspension was invalid and unenforceable as a matter of law. The judge decided to treat the defendant as a first offender. However, the Registry is not bound by this. Instead, the Registry looks at the defendant’s driving record and counts the number, timing, and disposition of the prior operating under the influence offenses. All priors count, whether they are for OUI drugs or liquor.
Here, the law says that when someone is assigned to a drug or alcohol education program after an admission to sufficient facts in a DUI case, and they have a prior assignment to a program, the proper length of the suspension is 2 years, regardless of whatever the judge might order or if the court overlooked the prior offense and treated the defendant as a first offender. All that matters is the person’s DUI history.
Also, all second offenders are ignition interlock required and will have a “Z” restriction on their driver’s license. This restriction will be in place during any hardship license period and for a minimum of 2 years after the person’s license is full reinstated and the Registry removes the “H” restriction.
Of course, for your driving record to control the length of your new suspension, it must be accurate. Sometimes the Registry’s records are inaccurate and they can be refuted with court and probation records. This is especially true when the Registry relies on old microfilmed records, many of which are illegible.
With a 2 year license revocation in place, the defendant is supposed to wait one (1) year prior to being considered for a hardship license. In cases where the need to drive is dire, it may be possible to get a hardship license without waiting a full year. However, 6-9 months must be served as a minimum.
Finally, because this defendant is a second offender with only a first offender G.L. c. 90 § 24D substance abuse education program, he cannot receive a hardship license from MassDOT and he will have to appear before the 3 member Division of Insurance Board of Appeal for a hardship license. The Registry’s appeals board has the statutory authority to order the Registry to grant hardship licenses even where the appellant might not meet the Registry’s requirements. These orders are issued only after a formal evidentiary Board of Appeal hearing and representation by competent legal counsel is recommended.