Ignition Interlock – Question & Answer

I was arrested twice for a dui within a few months of each other a couple years ago. My lawyer was able to get them to do a CWOF and treat it as a first offense. I am now just trying to get my license and when I went to the RMV they told me that I needed an interlock device. The RMV explicitly states that in order to have an interlock device you must have “two convictions of a dui”. I do not believe I should have to get this device because neither of my DUI’s were convictions they were CWOF. I researched it a bit an in accordance with Souza v Registrar of Motor Vehicles the Registry cannot use a CWOF as a conviction. That being said I would have zero convictions and should not need this device. Do I have a case against the RMV?

The Answer:

No. You’re ignition interlock required. G.L. c. 90 § 24 ½ requires all repeat DUI offenders who are reinstating after January 1, 2006 to use a certified ignition interlock device during the entire term of any hardship license and for 2 years after getting the “H” restriction removed and a full reinstatement of your driver’s license. A CWOF is considered a conviction for IID purposes.

The Driver Control Unit of the Registry of Motor Vehicles and the Division of Insurance Board of Appeal both take a zero-tolerance approach when it comes to ignition interlock requirements.

Ignition Interlock Device Requirements in Massachusetts

Melanie’s Law requires a driver whose license was suspended due to a drug or alcohol program assignment or an OUI conviction to install an IID if his driving history included a prior assignment or conviction at the time he or she applied for reinstatement. When someone who has had his driver’s license suspended for an OUI conviction, or an assignment to an alcohol education program, applies for a new license or to have his license or right to operate restored, and he has had a previous OUI conviction or assignment, the new or restored license may only be issued upon the condition that the driver have an ignition interlock device installed on every motor vehicle he owns, operates or leases for a period of two years. This requirement, contained in amendments to the OUI laws and enacted as part of “Melanie’s Law,” was made effective on January 1, 2006. As long as the event triggering the imposition of the IID requirement, that is, the application for a new or reinstated license, takes place after January 1, 2006, then Melanie’s Law applies prospectively and can permissibly take into account events occurring prior to its effective date, i.e., the previous convictions, assignments, and suspensions.

Melanie’s law conditions reinstatement of a driver’s upon the driver satisfying the procedures and agreements attendant upon installation of the IID. Drivers may also have to take written and road tests, depending on the length of the DUI license suspension or revocation. The driver’s license suspension continues to operate and is not lifted until the OUI offender performs all of the required actions to lift the suspension, including ignition interlock device installation for second or subsequent drunk driving offenders.

 

 

 

 

 

Reasons for Failed Rolling Re-Tests in Massachusetts

IIDIgnition Interlock Devices are not scientific test instruments and unlike breathalyzers, they do not use infrared spectrometry to determine breath alcohol levels. Instead, ignition interlock devices use less reliable fuel cell technology. Therefore, ignition interlock devices are susceptible to false positive alcohol readings and rolling re-test violations.

Baked goods which are prepared with vanilla extract and French Vanilla flavored coffee have been known to cause false alcohol readings. Likewise mouthwashes and toothpastes containing alcohols have also caused high alcohol readings and false positive results. Other products which contain alcohol include nail polish, air fresheners, windshield washer fluid, hair spray, disinfectants, vapor rubs, aftershave, cologne, deodorants, lotions, shampoo, hand sanitizers, cough medicine, flavorings, and glazes.

If you are on the Massachusetts Registry of Motor Vehicles Ignition Intelrock Device program, you should carefully check all product labels and be aware that anything containing alcohol could result in a rolling retest violation, which may result in the revocation of your driver’s license for a long time.

Any chemical ending in “ol” is an alcohol and should be used with caution. The Registry advises their interlock customers to refrain from eating anything and to drink nothing but water for at least 15 minutes prior to trying to start your vehicle and while operating with an IID. Also, be aware of chemicals in the passenger compartment of your vehicle. If you inhale any type of alcohol and then breathe into the IID, you are likely to have a false positive reading.

If you are found in violation, after a hearing at the RMV in Quincy, any hardship license will be revoked and you will have a new 10 year driver’s license revocation to contend with.

The Pennsylvania ARD Program & Mass. DUI Cases

PENNDOTThe State of Pennsylvania has an Accelerated Rehabilitative Disposition (ARD) program for those who are arrested for a first offense DUI.  One of the purposes of this DUI program is to allow qualified first offenders the ability to earn a “clean record” upon program completion. Participation in the program is not automatic and it is up to the District Attorney’s Office to agree to the ARD program.

When DUI charges are dismissed after a drunk driving defendant completes the Pennsylvania Accelerated Rehabilitative Disposition Program, the Jude presiding over the case can order expungement of the defendant’s arrest record. The expungement is governed by the PA Criminal History Record Act, 18 Pa.C.S. §  9122 and Vehicle Code, § §  1534(b) & 3807.

Expungement of an arrest record will not necessarily save a Massachusetts Resident or License Holder from a license suspension resulting from the Pennsylvania DUI. This is because once the information is transmitted to Massachusetts by PennDOT, the Registry of Motor Vehicles can add it to a driver’s record and it is not bound by any out of state expungement order. Also, the PA Dept. of Transportation has the legal authority to maintain a record of a DUI offender’s acceptance into the ARD program for a period of ten (10) years. Therefore, when it comes to an out of state license suspension resulting from a drunk driving offense, expungement may be of little value. PennDOT will maintain records of the DUI for 10 years and, once communicated to the Mass. RMV, a license suspension will be imposed.

If an ARD program participant is arrested for another DUI within the 10 year lookback period, the DWI will be treated as a second offense. A second offense carries mandatory jail time of between 5 and 90 days depending on your blood alcohol content at the time of the arrest.

When the 10 year look back period expires, PennDOT will automatically expunge its records of the DUI incident, so long as there was no habitual traffic offender revocation and/or the offender was not a CDL holder at the time of the DUI. However, if the offense was added to your Massachusetts Driver History, the RMV will maintain the record permanently and the PA expungement law will not require MassDOT to remove the entry from your Massachusetts record. This is because Massachusetts has a lifetime lookback period for operating under the influence convictions or alcohol program assignments.

Mass. Drunk Driving License Suspensions

Those convicted of DUI in Massachusetts or those who admit to sufficient facts or work out plea bargains in DUI cases often falsely believe that their license suspension will be determined by the court’s treatment of the DUI conviction. This is completely incorrect. Others believe that Mass. Registry can do “whatever it wants” when it comes to DUI license suspensions. This is equally incorrect.

When it comes to imposing license suspensions triggered by OUI convictions or admissions to sufficient facts, the Registry must follow the law.  The Massachusetts drunk driving law, G.L. c. 90, § 24, requires the Registry to impose license revocations based on prior DUI convictions or alcohol program assignments regardless of how the court treated the current offense.

The Registry of Motor Vehicles is an independent agency of the Commonwealth charged with keeping records of an individual’s official driving record and history.

Based on these Registry records, the law imposes licensing consequences of operating a motor vehicle while under the influence of alcohol.  For example, G.L. c.90, § 24(1)(c), requires the Registrar to revoke the driver’s license or right to operate of any person who has an OUI conviction. In calculating the length of license suspensions, the Registry looks at the customer’s driving history and suspends the license based upon the prior DUI offenses listed in his or her driving history.

The Registry makes a simple numerical count of the OUI convictions or CWOFs listed in the Registry’s records and imposes a license suspension which corresponds with the number of prior offenses.

Contrary to popular belief, the Registry is not bound by a defendant’s sentencing under G.L. c.90, § 24D in applying the statutory mandates for OUI license revocations and out of state drunk driving offenses count just like those committed here.

Immediate Threat Indefinite Suspensions in Massachusetts

The Massachusetts Registry of Motor Vehicles is empowered to suspend the driver’s license or right to operate in Massachusetts of anyone who the Registry deems is an “immediate threat” to the motoring public. MassDOT can legally impose these immediate threat suspensions in some cases without grating the driver a hearing prior to the suspension. In these situations, you have a right to a hearing at the Registry of Motor Vehicles after the indefinite immediate threat suspension goes into effect and you have the right to be represented by a lawyer at that hearing.

If the immediate threat suspension cannot be resolved at a Registry hearing, you have the legal right to appeal the suspension to the Board of Appeal of the Massachusetts Division of Insurance of the Office of Consumer Affairs and Business Regulation, which is located at 1000 Washington Street, Suite 810 in Boston, Massachusetts. Unlike Registry hearings, Board of Appeal hearings must be scheduled in advance and they are conducted in formal settings where procedural rules apply. If you are serious about getting your license reinstated, you should hire a lawyer and do not appear before the Board without one. Once your hearing is held, you will likely have a very difficult time getting any adverse decision reversed.

Immediate threat suspensions are indefinite in length. This means that you will never get your license back until either the Registry reinstates it after a hearing or the Appeals Board orders the Registry to grant you a reinstatement. Hardship licenses are not granted while immediate threat suspensions are in effect on the grounds that a driver who represents an immediate threat to public safety should not be on the road at all.

The Registry has wide latitude and discretion when it comes to immediate threat suspensions, but the Registry’s power is not limitless. I have successfully appealed and reversed immediate threat suspensions in a variety of situations. However, the general rule when it comes to these suspensions is that they will remain in place is if there are any pending criminal charges which would result in additional license suspensions upon conviction.

In cases where there are criminal charges, the immediate threat suspension is a “stopgap” measure designed to keep an allegedly dangerous driver off the road until the charges are resolved in court. A conviction will likely result in additional suspension time. However, simply because a criminal case is resolved in the defendant’s favor, the defendant is not automatically entitled to a reinstatement of his license. This is because the standard of proof of in a criminal case is “beyond a reasonable doubt” and the Registry’s standard for immediate threat suspensions is much lower.

If you have received a letter from the Mass. RMV stating that your driver’s license is or will be suspended due to an immediate threat complaint, I urge you to contact me for a free consultation and review of your situation. I may be able to get the immediate threat suspension vacated and your license reinstated, as I have done in countless other cases.

Mass. Cinderella License for OUI Suspension

Situation: I was arrested for drunk driving on Friday night, early Saturday morning, at approximately 1:30 AM. I am 35 years of age my court date is January 21, 2104, because of the holiday. I took a breathalyzer I did not deny it. I am from Fall River, Massachusetts and I work in New Bedford from 6:AM to 3:30 PM. I can’t believe I am facing this situation. I have a perfect driving record until this. Now I will be surcharged from my insurance and this is my first ever DUI.  Is there any way I can ask the judge for a Cinderella license just so I can go to work?

The answer to this question is yes, you can ask for a work license. However, you cannot do that while your DUI case is pending. In Massachusetts, you cannot be considered for any type of hardship or Cinderella license until your case is resolved in court. While your case is pending it is impossible to get a hardship license. Since this person took the breath test, he will have a 30 day administrative per se suspension, after which he can get a full reinstatement. Of course, if he is convicted of OUI or he is assigned to an alcohol treatment program, the Registry will suspend his license because of the conviction or program assignment. Some people do not bother reinstating from an administrative per se suspension, they just wait until their case is resolved in court. Others promptly appear at the Registry on the 31st day to get their licenses back. It depends on the individual and his or her particular need to drive. Most first offenders do not need the services of a lawyer to get a hardship license. So long as your case is resolved and you have a valid work letter and proof of enrollment in the 24D 16 week out patient alcohol treatment program for 1st offenders, you’ll likely be granted a hardship license and hiring an attorney is probably not the best use of your money or the attorney’s time. I get a lot of calls from first offenders and I advise them of the Registry requirements and suggest that they go to the Registry themselves. I rarely get calls back afterwards reporting hardship license denials. It is, of course, more difficult for repeat offenders and those people should have lawyers representing them.

To summarize, it is fairly easy to get a Cinderella license for a first offense OUI suspension. However, you cannot even be considered for this until your court case is resolved. While the case is pending, neither the judge nor the Registry has the ability to grant you any type of  Cinderella license.

If you have questions regarding OUI or hardship licensure in Massachusetts, fill out the contact form on this site or call 508-656-0057 for a free consultation and review of your case. A lawyer will let you know exactly where you stand and what can be done to help you. I have put a large number of clients back on the road with Cinderella licenses or full reinstatements of their regular driver’s licenses.

Mass. Hardship Licenses for 3rd & 4th OUI Offenders

If you have an 8 year OUI 3rd offense license revocation or a 10 year OUI 4th offense revocation, you are likely not going to get a hardship license from the Mass. RMV and you will end up at the Board of Appeal of the Division of Insurance. This is because the Registry will not grant you any type of hardship or work license if you are a 3rd or 4th offender who has not completed an approved ninety (90) day in-patient residential alcohol treatment program and all recommended aftercare. The Registry makes no exceptions to these requirements. Also, Registry Hearings Officers cannot grant hardship licenses to 4th offenders without approval of the Director of the Driver Control Unit. There are no hardship licenses available for 5th offenders, who have lifetime license revocations.

When you do not meet the Registry’s hardship license requirements, you can seek hardship authorization from the Board of Appeal. However, there is certainly no guarantee that you will receive a hardship license and one of the best ways that you can improve the odds of getting a hardship license is to hire a lawyer who specializes in Board of Appeal cases.

As a third or fourth offender, you must produce substantial evidence to show that any alcohol issues are under control and you are unlikely to reoffend. Some factors that the Board of Appeal will consider include your criminal record, driving record, evidence of operation, prior blood alcohol levels, alcohol treatment, sobriety, attitude, AA and self-help attendance, and counseling history. Only when these issues are addressed will the Board consider hardship, need to drive, and work obligations.

If you have an 8 year or 10 year license revocation and you are interested in obtaining a hardship license, I urge you to contact me for a free review of your situation. After speaking with me, you will know where you stand and you will have an idea of your chances of obtaining a hardship license. If it is unlikely that the Board will grant you a license, I will advise you as to what steps you need to take and how long you may have to wait before applying. If you apply too soon or you are unprepared for your hearing, the Board may affirm the revocation and you may lose your right to be re-considered for a hardship license. If this happens you will have to serve the balance of your revocation.

All repeat offenders will have to use an ignition interlock device while you are on any hardship license and for 2 years after your hardship hours are removed. The IID requirement applies whether your are granted a hardship license or not. There are no exceptions to the IID requirement.

You May Have Only 15 Days to Save Your License

If your driver’s license was suspended due to a chemical test refusal in Massachusetts, you may only have fifteen (15) days to save your license and right to drive. This is because under G.L. c. 90 § 24(1)(f)(1), you only have fifteen calendar days to appeal certain aspects of a breathalyzer refusal. Under the Mass. breathalyzer refusal law, weekends and holidays count towards the 15 day refusal appeal period. Also, breath test refusal suspension can only be appealed to the MassDOT main branch in Boston, Massachusetts. The RMV will not accept refusal appeals at any other location.

Under the Massachusetts Implied Consent Law, if you refuse to take a breath or blood test after you have been arrested for operating under the influence of alcohol, the Registry will administratively suspend your license or right to operate for at least 6 months, up to lifetime, depending on whether you were 21 or older at the time of the refusal and the number of prior OUI convictions. When calculating these suspensions, all prior convictions and alcohol program assignments will count against you, no matter when or where they occurred.

Given the 15 day appeal period and the penalties associated with breathalyzer refusals, you should promptly consult with a lawyer. It is important to challenge chemical test refusal suspensions in Massachusetts because, except in 1st offense cases, a hardship license is not available when a license is suspended due to a chemical test refusal. Also, breathalyzer refusal suspensions must run prior to DUI suspensions. For example, if you are convicted of a 2nd offense OUI and you refused the breath test, you will serve a 3 year CTR suspension prior to the commencement of the 2 year OUI suspension, for a total of 5 years without a license. You cannot be considered for hardship relief until the 3 year CTR suspension expires.

You Probably Don’t Need A Lawyer for a 1st Offense Hardship License Appeal

If your license has been suspended due to first offense OUI in Massachusetts, you can be considered for a hardship license, so that you can legally drive for 12 hours each day. So long as you have a documented need to drive for work, medical, or educational purposes, and your 1st offense OUI case was resolved pursuant to G.L. c. 90 § 24D, the Registry will consider you for a hardship license. You probably do not need to waste money on a lawyer. As long as you have proof of enrollment in the 1st offender alcohol program and your received a 1st offender disposition from the court, you probably don’t need a lawyer to handle your hardship license hearing. The vast majority of hardship license applicants receive work licenses without the need for an attorney.

It can be difficult to get a hardship license when it comes to a second, third, or fourth offense OUI and in those cases, it probably makes sense to hire a lawyer to represent you. In first offense cases, however, getting a hardship license is relatively easy. As long as you do not have anything out of the ordinary such as an immediate threat suspension, there is probably no need to hire a lawyer to represent you.

I get a large number of calls from concerned first offenders who are understandably desperate to get back on the road as soon as possible. I advise them of the hardship licensing requirements and instruct them to call me back if the Registry denies them a license. Since I don’t hear back from these people, it seems that they are being granted hardship licenses and have no need to appeal. Therefore, unless 1st offense your case is out of the ordinary, you probably can represent yourself at the Registry and you will most likely get a hardship license.

If you have a complicated case or if you have an out of state license, you should speak with a hardship license attorney. Otherwise, if you are a first offender and you have a valid work letter and proof of alcohol program enrollment, you can probably get a hardship license yourself. I am sure that the OUI case was costly enough and there’s no need to spend more money on a lawyer for your hardship license hearing.