Out of State DUI Q&A

I need help with reinstating my Mass driver’s license. I have to see a RMV hearing officer, Wilmington is the closest Registry. I am 39 years old and I have never been in trouble before.

I got arrested 2 times in 2 weeks for DUI (I don’t drink by the way). The first one happened in CT — which ended in “Alternate finding” i.e. take a long expensive drug/alcohol class and probation for one year. My lawyer kept “continuing” the case so the second DUI arrest case in Rhode Island finished way before the Connecticut judge assigned probation.  The RI DUI was dropped and has been expunged from my record. I refused the breathalyzer after I was under arrest. I would have easily passed the breathalyzer, but since I felt wrongly arrested in both incidents and since this whole experience was foreign to me, I felt I should contact a lawyer before cooperating anymore. I was found responsible for both refusals. My suspensions are up and MA has sent me letters asking me to see the hearing officer with my papers from RI and CT- the states’ reinstatements and my driving records. I have my court documents as well. I couldn’t tell by the MA letter if they needed those as well.

Here’s the question: Do I go to hearing officer with both sets (CT and RI) of documents or deal with them one at a time? The Rhode Island case finished first so I’ll be receiving that paperwork this week. I’ll be receiving the Connecticut documents the week of November 13th. Thank you in advance for any light you could shed!

Answer: If you hold a Massachusetts Drivers License or live in Massachusetts, and you are convicted of an out of state DUI offense, the Registry of Motor Vehicles will suspend your license unless and until your right to operate is restored in the state where the offense occurred. Also, the Registry will impose an additional suspension which is triggered by being a Mass. resident or license holder and being convicted of an out of state DUI. You need to bring “proof of findings” to the Registry so that the CT offense can be added to your Massachusetts record. Once this happens, the RMV will impose an automatic 1 year DUI 1st offense license suspension. In some cases, this suspension can be reduced.

Resolve your Criminal Case Before going to the Board of Appeal

rightsIf MassDOT has taken action against your Massachusetts Driver’s License or right to operate in Massachusetts, G.L. c. 90 § 28 gives you the right to seek review of the Registry’s decision by taking your case before a 3 member Board of Appeal. This Board, which is an agency of the Division of Insurance, has the legal authority to reverse any decision of the Mass RMV. This means that the Board has the power to order the Registry to give you your driver’s license back in full or to grant you a hardship license, which allows you to legally drive for 12 hours each day if your license has been suspended or revoked.

You cannot get a license from the Board of Appeal without personally attending a Board of Appeal hearing. The purpose of this hearing is to give the Board information so that its members can decide whether to grant you a hardship license or to overturn your suspension.

In some cases, you may have pending criminal charges for operating after suspension, reckless driving, negligent operation, or operating under the influence. If you have pending charges, you should not apply for a hearing with the Appeals Board. Instead, you should wait until your criminal case is resolved. In most cases, the Board will refuse to hear your suspension appeal case until the criminal matter is concluded. This is because if you are convicted, you will have a new license suspension and any order made by the Board will be null and void.

There is another important reason for waiting to appeal your suspension, as I have explained below.

The 5th Amendment to the United States Constitution gives you the right to remain silent and the ability to refuse to testify against yourself. Article 12 of the Massachusetts Declaration of Rights give you the same protection. At your appeal hearing, you will be questioned regarding the contents of your criminal and driving records, which will reflect any pending cases as well as your history of violations, whether or not they resulted in a conviction. If you invoke your 5th Amendment or Article 12 Rights against self incrimination, it is unlikely the appeal will be resolved in your favor. If you testify , you will likely be providing evidence which could hurt your chances of success in the criminal case.

All testimony at the Board of Appeal is sworn, which means that it is given under the penalties and pains of perjury. Furthermore, all testimony is electronically recorded and preserved.  Nothing would prevent the Board from sharing this information with prosecutors or the District Attorney’s Office from issuing a subpoena for your testimony. This sworn testimony could be used against you in the criminal case. Therefore, if you have pending criminal charges, the best thing to do is to wait until those charges are fully resolved through the court system before seeking a hardship license or early reinstatement of your driver’s license. If you have any questions regarding this, you should speak with a lawyer.

The Boston RMV is Moving!

MASSDOTOn Monday, September 15, 2014, the Registry of Motor Vehicles will relocate its Boston Branch from 630 Washington Street in Chinatown to the second and third floors of the state-owned building at 136 Blackstone Street in Boston.  This building was constructed around two ventilation shafts which vent the underground “big dig” tunnels below the Rose Kennedy Greenway.

The Boston Branch of the Registry houses the Driver Control Unit where suspension and chemical test refusal hearings are held. Hardship license, immediate threat, and complaint regulatory hearings will also be held at this location. Hearings for ignition interlock violations are held at the Quincy office which is located at 25 Newport Avenue Extension in Quincy. License Fraud hearings are held at the Special Investigation Unit which is located at 25 Stuart Street in Boston.

Parking at the new location is expected to be limited and the best way to get there is to take the MBTA to Haymarket Station.

The first floor of the building will house the Boston Public Market, which is a year-round indoor public market which will sell locally grown produce and other foods from the New England area.

Telephone numbers remain the same. You can continue to reach the suspension unit at 857-368-8200.

RMV Requires Ignition Interlock Device

ignition interlock deviceIf the Registry of Motor Vehicles suspended your driver’s license or right to operate for Operating Under the Influence of Drugs or Alcohol, and you have a prior DUI conviction, regardless or when or where it occurred, you will be required to use an ignition interlock device while you are on a hardship license and for a minimum of 2 years after getting the hardship hours removed from your license. The Registry makes no exceptions when it comes to the ignition interlock device (IID) requirement, which is mandated for all repeat DUI offenders. Your license will be IID restricted even if the court treated you as a first offender or you were given a “Cahill” or “Second Chance, First Offender” disposition.

The initial lease fee for the IID is approximately $200.00 and you must pay a $100.00 monthly monitoring fee. These fees are mandatory and there are no waivers for those who are indigent.

All states now have some form of an ignition interlock program. In some states, such as New York, the IID is required even for first offenders. In Massachusetts, it is required for those with 2nd, 3rd, and 4th offenses. Those with 5DUI offenses will have their licenses revoked for life, with no ability to apply for a hardship or work license.

If you are a repeat DUI offender and have been cleared for either hardship relief or a full license reinstatement, you must have the IID installed by a certified vendor. Once the IID is installed, you need to bring proof of installation to a Registry Hearings Officer in order to reinstate your license. You will have to sign a package of forms which explain the Registry’s IID program and the rules which you must obey to avoid the loss of your license. You must sign this package in the presence of a Notary Public and it must be notarized. Any license driver who lives with you must also sign paperwork stating that he or she knows that your license is IID restricted.

In most cases, you will be required to take a written and road test to get your license reinstated. If you are required to re-test, you must have the IID installed prior to taking the road test. You will take the test in the IID equipped vehicle.

If you commit an ignition interlock violation by missing rolling re-tests, failing rolling re-tests, failing to have the device downloaded as required, or tampering with, disconnecting, or circumventing the IID, your license will be revoked for 10 years or life. Also, operating a vehicle without the IID during your restriction period will result in a 10 year license revocation, regardless of whether or not you were charged criminally or convicted.

Proposed Bill would Eliminate Drug Suspensions

In accordance with G.L. c. 90, §22(f), the Mass. Registry of Motor Vehicles suspends the driver’s licenses of those who have been convicted of drug offenses, irrespective of whether the crime involved a motor vehicle. Every year the Registry imposes approximately 7,000 drug suspensions, ranging from 1 to 5 years in length.  Massachusetts is one of 17 states in the U.S. where drug convictions will trigger mandatory license revocations.

There is currently legislation pending, at the Massachusetts Statehouse, which would terminate the longstanding practice of imposing automatic license suspensions for drug convictions. The Bill was filed in January of last year and it may be enacted in the near future. The Massachusetts Senate passed the Bill in May of this year.

The basis for the legislation is that having a suspended license, and a history of drug convictions, may hamper recovery efforts. The lack of a license makes it difficult for convicted drug offenders to find legitimate work. If the legislation passes, drug convictions would not appear on driving records and they would not trigger license suspensions. The Bill would also save convicted drug offenders from having to pay the $500.00 reinstatement fee which the Registry charges when someone reinstates from a drug related suspension.

Unless and until the legislation is enacted, if you lost your driver’s license due to a drug conviction, you can be considered for a hardship license at the Registry of Motor Vehicles or Board of Appeal. Where you go depends on your record. Those with multiple drug offenses must go to the Appeals Board. Clean urine screens and a substance abuse evaluation are critical.


Don’t Drive on a Suspended License!

One of my clients recently contacted me looking for a referral to a criminal defense lawyer. The client had an 8 year OUI 3rd offense revocation and I was working with the client to put together a package of documents for a hardship license hearing. We were preparing to go before the Board of Appeal once the client had the required documentation and had saved enough money for legal representation at the Board of Appeal, installation of the ignition interlock, and the $1,200.00 reinstatement fee which the Registry charges.

The client made the mistake of driving while her license was revoked for DUI and she got caught. This will disqualify her from being considered for any type of hardship relief for at least a year. Also, if she is convicted, the RMV will take her license for an additional year and she faces minimum mandatory jail time. Both Massachusetts courts and the Registry treat operating after suspension as a serious offense, especially when the person’s license was suspended for OUI. A case of this nature cannot be continued without a finding or filed. Furthermore, no sentence and be reduced or suspended until the defendant serves at least 60 days in jail.

The Board of Appeal sometimes interprets driving on a suspended license as evidence of a lack of respect for the law and recent convictions for OAS will make it very difficult to obtain a hardship license. In this particular case, the client’s actions have delayed her hardship license eligibility for at least a year, during which time there must be no evidence of operation. Even after having served an additional year, there are no guarantees that she will receive approval for a hardship license.

In a DUI case where the defendant is on probation, driving a motor vehicle may also result in a probation violation. This is because repeat DUI offenders are usually prohibited from driving as a special condition of probation. Any operation of a motor vehicle would violate this probation condition. Furthermore, getting arrested or charged with a new crime may also trigger a probation violation, for which there may be serious consequences.

As you can see, operating after suspension can be a serious issue, especially where the license was suspended for OUI. It may result in your arrest, violation of probation, disqualification for a hardship license, and the imposition of a mandatory jail sentence.

Your Mass. Driving Record Controls DUI Suspension Length

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.

Hardship License Hours

clockThe Massachusetts Registry and its Appeals Board grant hardship licenses to qualified individuals who have had their licenses revoked or suspended. These limited licenses are only valid for the twelve (12) hours specified thereon. The hours of a hardship license are established based on the applicant’s need to drive for verified school, medical, or work reasons. Hardship licenses are valid 7 days per week, for 12 hours per day. Once issued a hardship license, you can drive for any purpose, regardless of the reason for issuance. However, you cannot drive outside of your 12 hour period.

Driving in violation of an “H” restriction constitutes the criminal offense of driving without a valid license, in violation of G.L. c. 90 § 10, for which you can be arrested. Furthermore, evidence of operation outside of the 12 hour hardship license period may cause MassDOT or the Division of Insurance Board of Appeal to revoke your hardship license and impose the balance of your license suspension. If you have an ignition interlock device installed in your vehicle, the Registry will easily be able to see operation outside of the 12 hour period. Also, police cruisers equipped with automatic license plate recognition (ALPR) may also be able to detect driving outside of the hardship license hours.

If you have a legitimate need to change the hours of your hardship license, you can do so by contacting the Suspension Department of the Registry of Motor Vehicles or the Board of Appeal, depending on how your hardship license was issued. You will need to provide third party documentation of your change in hours.  It is strongly recommended that you change your hardship hours, if your circumstances change, rather than risk being arrested for driving outside of the terms of your limited license.

Massachusetts Appeals Court Rules on Suspension Appeal Procedures

appeals_court_massIn the case of Commonwealth v. Bougiokas, which was decided on May 19, 2014, the Massachusetts Appeals Court announced the procedure to be followed to challenge the length of a license suspension for operating under the influence of alcohol or drugs. In the Bougiokas case, a repeat DUI offender, who happens to be an attorney, sought to appeal the length of his DUI license suspension through the court system. The Appeals Court ruled as follows:

As a result of a new trial on an OUI charge, Bougiokas’ license was suspended for one year, in addition to the 45 day suspension that he already “served” after receiving a § 24D disposition. He argued, before the Appeals Court, with considerable force that since this was still a first offense, the total length of his license suspension should have been limited to one year. The Appeals Court held that “this argument is not properly before us. The trial judge did not actually impose any license suspension. Instead, the defendant’s license suspension resulted by operation of law and administrative practice once the RMV received notice of the conviction. To the extent the defendant believed his license suspension should have been shorter, his potential recourse would have been to seek administrative relief from the RMV.”

This means that the proper course of action to challenge a license suspension is through the Registry of Motor Vehicles Hearing Process and, if necessary, the Board of Appeal of the Division of Insurance of the Office of Consumer Affairs and Business Regulation. The Board of Appeal has broad powers to reverse, modify, or annul any decision of the Registrar of Motor Vehicles, including those decisions pertaining to license suspensions and revocations.  The Appeals Board can also order MassDOT to grant hardship licenses in cases where the Registry initially refuses to so.

Appealing a license suspension or revocation in Massachusetts requires you to follow certain steps, the first of which is to obtain and thoroughly review your driver history. You should contact a lawyer who is routinely practices before the Registry of Motor Vehicles and its Board of Appeal.  Challenging license suspensions has become a specialty due to the complexities of the applicable laws, regulations, and appeal procedures. Most Registry hearings can be held on a “walk-in” basis. However, winning these cases requires adequate case preparation. Having the required documentation and making the right legal argument is critical. Going before the Board of Appeal requires the filing of a written appeal and it takes approximately 2 months to get a hearing before the Appeals Board.

If you are interested in appealing a license suspension in Massachusetts, I invite you to contact me for a free consultation and review of your case.

Out of State Suspension Q&A

Situation: I moved here from the State of Hawaii for work and school. The job that I had lined up for me requires a valid Massachusetts Driver’s License. I have had a DUI in the past, but with no job it was hard to pay the fines. Here, I’ve found work. I just need the right documents and my life will be back on track. I have a child support issue that also put a stop to my license. I intend to pay everything off, but I need the job to do so. This would be perfect and could really use the help.

Answer: Unfortunately, any out of state suspensions will result in you being denied a driver’s license here in Massachusetts.  Whenever you apply for a license, the Registry will check the National Driver Register (NDR) and the Problem Driver Pointer System (PDPS). Any blocks or holds on your record based on out of state suspensions will prevent you from being issued a license here in Massachusetts. You must resolve the suspensions in the state where they have originated. There are absolutely no exceptions to this requirement and you cannot get a hardship license when you have a National Driver Register block in place or an out of state license suspension.