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The client made the mistake of driving while her license was revoked for DUI and she got caught.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.

Immediate Threat Indefinite Revocations

If the Mass. Registry receives information indicating that your continued operation of a Motor Vehicle in Massachusetts would result in an immediate threat to public safety, the Registrar has the right to immediately revoke your driver’s license for an indefinite period of time. The purpose of this procedure is to promptly remove a driver from the roadway if he or she has been determined to represent an immediate threat to the safety of the public. MassDOT indefinitely revokes approximately 1,500 licenses each year under the immediate threat law.

Immediate threat suspensions are not confined to driver’s licenses. This means that the RMV can revoke your vehicle’s registration if a hearings officer determines that continued operation of the motor vehicle would pose an immediate threat to public safety.

When your license or right to operate is suspended under the immediate threat law, the Registry will review your entire driving record and a history of poor driving is a factor that may count against you at a reinstatement hearing. A history showing surchargeable accidents and responsible findings for civil motor vehicle law infractions can be used to justify the revocation of your license.  These revocations can also be based on a serious single event, even where the driver has an otherwise clean record.

Immediate threat suspensions result from car accidents, police pursuits, dangerous driving, erratic operation, medical conditions, seizures, and loss of consciousness while operating a vehicle. These suspensions are initiated by law enforcement officials or healthcare providers.  Often an immediate threat suspension is tied to a criminal case. In these situations, you must generally resolve the criminal case prior to trying to reinstate your license from the indefinite immediate threat revocation.

Getting the criminal charges dismissed or a not guilty verdict does not mean that the immediate threat license suspension will go away. The standard of proof in criminal court is “beyond a reasonable doubt” and the standard of proof at the Registry is the preponderance of the evidence, which means “more likely than not.” Also, RMV hearings are administrative in nature and the technicalities associated with criminal court proceedings do not apply. Finally, these suspensions are not designed as punishment. Instead, they are supposed to protect the public from an allegedly dangerous driver. Thus, even if the criminal case was resolved in your favor, you will still have to fight to get your license back.

Unfortunately, no hardship licenses are available for these suspensions. You will either get a full reinstatement or the indefinite revocation will remain in effect. The rationale for the hardship license prohibition is that if a driver is a danger, he or she should not be allowed to drive at all, not even for a 12 hour period.

National Driver Register (NDR) Suspensions

The Federal Motor Carrier Safety Improvement Act of 1999 (MCSIA) requires all state Motor Vehicle Departments to verify a license holder or license applicant’s driving record through checks of both the National Driver Register (NDR) and Commercial Driver’s License Information System (CDLIS), prior to issuing or renewing a driver’s license or CDL. This means that you cannot have your license suspended in one state and apply for a license in another state to avoid the suspension or revocation.

Every state has to check the National Driver Register and it does not matter whether a particular state is a member of any driver’s license compact or non-resident violator compact. The National Driver Register (NDR) is a central computerized database which contains information regarding drivers whose license or right to operate a motor vehicle has been denied, revoked suspended, or canceled, for a valid reason, or those individuals who have been convicted of enumerated serious traffic-related violations, such as operating under the influence (OUI).

When a Motor Vehicle Department in any state, including the Massachusetts Registry of Motor Vehicles, discovers that an individual has a status of “ineligible” or “blocked” in the NDR, the DMV cannot issue or renew the person’s driver’s license. This requires the driver to contact the state which placed the block on his or her NDR record to have it removed. Under this system, Motor Vehicle Departments can avoid granting driver’s licenses to those individuals whose records contain serious violations such as DUI or those who have lost their right to drive in other states.

If you have an NDR block on your record, you are entitled to be provided with the reference number and contact information for the agency which has placed the NDR block on your record. Sometimes these blocks are the product of identity theft, inaccurate information, or another disqualified individual having the same name and date of birth as you. Unfortunately, the Registry does not work on the honor system and it will be up to you to prove that the block is invalid.

If the NDR block is valid, you must work with the state where the block has originated to satisfy whatever outstanding obligations that you have in that state so that you can reinstate your right to operate there. There is nothing that the Massachusetts RMV can do for you until your record is clear in the NDR and the hold is removed by the motor vehicle agency that initiated it. You can usually remove an NDR block by completing the required alcohol or drug education programs, paying any outstanding fines and/or fees, producing an SR-22 insurance certificate, or simply serving the suspension time required.

Having the NDR hold removed does not mean that your license or right to operate in Massachusetts will be automatically reinstated. If you committed an out of state motor vehicle violation, such as DUI, while you were a Mass. resident or held a Mass. License, the RMV will impose a new suspension in addition to whatever suspension was imposed in the state where the violation occurred. This is because the RMV is required to treat out of state violations as if they had happened here in Massachusetts, for license suspension purposes. If this happens to you, it may be possible to get the suspension reduced or get a hardship license. However, this can only be done after the National Driver Register Indefinite Suspension has been cleared. Contact a lawyer for more information.

Massachusetts Administrative Per Se License Suspensions

If you were arrested for operating under the influence of liquor in Massachusetts and your blood alcohol level (BAL) was at or above .08, pursuant to G.L. c. 90 § 24(1)(f)(2), the Registry of Motor Vehicles will suspend your driver’s license or right to operate for a period of 30 days. This suspension is referred to as an administrative per se suspension or a breathalyzer failure suspension. Absolutely no hardship, work, or Cinderella license is authorized by law, unless your criminal case has been properly disposed of pursuant to G.L. c. 90 § 24D, which applies only to OUI 1st offenders or “2nd chance first offenders.”

You have a right to a hearing administrative per se suspensions in the district court where you were charged with DUI. You must appeal within ten (10) days of your suspension to the district court having jurisdiction where the DUI arrest occurred. The only question to be decided at this suspension appeal hearing is whether, after a reasonable period of time from your OUI arrest,  a chemical analysis of your breath of blood showed a reading at or above .08 for a person over 21 years of age or older and a BAC reading at or above .02 for a person under 21 years of age.

Massachusetts administrative per se suspensions will expire by operation of law at the end of the 30 day suspension period or with the disposition of the criminal operating under the influence (DUI) case,  whichever occurs first. In either case, prior to operating a motor vehicle, you must pay a reinstatement fee to the Registry of Motor Vehicles before your license is reactivated and your right to drive is reinstated.

It usually does not make sense to appeal these administrative per se suspensions to the Board of Appeal because by the time your Board of Appeal hearing is held, the 30 day suspension will be over with. If you lose your drunk driving case, you will have a new suspension based on your prior record.

Suspensions & Revocations for Allowing Improper Operation

The Massachusetts Registry of Motor Vehicles will penalize you for knowing allowing an unlicensed driver or someone whose license is suspended or revoked to operate your motor vehicle. Criminalized as part of Melanie’s Law, G.L. c. 90 § 12 makes it a criminal offense to allow an improper person to drive your motor vehicle. A conviction may result in the revocation of your vehicle’s registration and license plates as well as your driver’s license for up to one year.

The law also prohibits a vehicle’s owner from knowingly allowing someone whose license is ignition interlock restricted from driving a motor vehicle which is not equipped with a certified and functioning ignition interlock device.

Prior to the suspension of your driver’s license, right to operate, or automobile registration, the Registry is required to send you suspension notice and provide you with an opportunity to attend a Registry hearing. You can have legal representation at this hearing and it is usually a good idea to have a lawyer represent you.

In addition to the license suspensions and registration revocations which may follow a conviction for allowing an improper person to operate, a violation of this law can be used as evidence of negligence in a civil suit resulting from a personal injury or property damage accident. A conviction can constitute negligent entrustment of a motor vehicle.

If your driver’s license or right to operate a motor vehicle in Massachusetts is suspended or revoked for allowing improper operation, you cannot get a hardship license directly from the Registry of Motor Vehicles. However, there is a state agency known as the Board of Appeal which may issue a finding and order to the Registrar directing the issuance of a hardship license or early reinstatement.