Probation Violations in Mass. Hardship License Cases

If you are convicted of operating under the influence in Massachusetts or you admit to sufficient facts and receive a continuance without a finding (CWOF), you will be placed on probation. When you are on probation, you will be required to abide by certain terms and conditions. For example, you may be required to  maintain employment, or, if you re unemployed, you may be required to actively look for employment, you may also be required to attend and complete an educational program such as the § 24D first offender alcohol program, the DUIL 14 day residential program in Tewksbury, or another alcohol treatment program. You may have to adhere to travel restrictions and meet periodically with a probation officer.  In drunk driving cases, you will likely be required to refrain from drug or alcohol consumption. Other common OUI probation conditions include mandatory Alcoholics Anonymous attendance and/or individual alcohol counseling.  Financial obligations include the payment of monthly probation fees. Drug testing as well as breathalzyer tests may be performed to insure compliance.

For those seeking hardship licenses in Massachusetts, it is imperative to not violate the terms and conditions of probation. Both the Massachusetts RMV and the Board of Appeal of the Massachusetts Division of insurance look for letters from probation officers as part of hardship license hearings. These letters should state that the hardship license applicant has not had any probation violations and that he or she is in good standing with probation. Also, the Registry and Board of Appeal will review your probation record as part of an hardship license appeal and probation violations stick out like a sore thumb.

Having a probation violation on your record may disqualify you from being considered for a hardship license, especially if the probation violation is due to another alcohol related incident or being arrested for a new offense such as operating after suspension. Also, the Appeals Board and Registry take a negative view of any probation violations due to failure to complete a required alcohol program or court-ordered counseling. If you had a violation of probation on your record due to your most recent OUI, you should be ready to fully explain and address this at your hardship license hearing. A lawyer can help you with this.

The Registry’s Board of Appeal is hesitant to grant hardship licenses to those with probation violations because the Board members are concerned that if someone cannot follow their terms and conditions of probation, they may not be able to follow the rules associated with a hardship license and/ or they may be at risk of re-offending.

DUI Dismissed & License Still Suspended

Situation:

I was arrested more than a year ago for operating under the influence in Massachusetts and I refused the breathylyzer. I had previous offenses (one dismissed and one CWOF) from 30 yrs. ago. My current OUI case was dismissed in September. However, after dismissing the charges, the judge would not reinstate license. I have a hearing date with the board of appeals to try and reinstate my license

Answer:

Unfortunately, the Division of Insurance Board of Appeal will not help you in this situation. Appealing a judge’s denial of a motion to reinstate is a waste of your money and the Board’s time. In cases such as this, the Board has taken the position that it does not have the jurisdiction to hear appeals of this nature. The Board rationale is that G.L. c. 90, § 24(1)(f)(1) sets forth a statutory procedure for relief and that procedure is for the person seeking a driver’s license reinstatement after having been found not guilty of DUI or after having the DUI charges dismissed to appear before the judge who heard the operating under the influence case pursuant to a motion for license reinstatement.

Under Massachusetts law, when a person whose license was suspended due to a chemical test refusal is found not guilty of the drunk driving charges or the DWI charges are dismissed, the defendant is entitled to have a hearing on the reinstatement of his license and the termination of the breathalzyer refusal suspension. There is a presumption at this hearing that the person’s license should be returned unless the prosecution can convince the District Court Judge that reinstating the license would jeopardize public safety.

Although the Board of Appeal of the Division of Insurance has the legal authority to overrule any decision of the Registrar of Motor Vehicles, the Board is of the opinion that the above-listed procedure is the sole mechanism to pursue the return or a driver’s license after the favorable resolution of a DUI case and it will not hear suspension appeals in situation such as this.

From a practical standpoint, the Board of Appeal is rightfully concerned with public safety and that consideration is paramount in hardship license appeals. Since your motion for reinstatement was denied, the Commonwealth must have convinced the District Court Judge that returning your to the roadway would not be in the best interest of public safety and the Board of Appeal is highly unlikely to overrule this decision, which was made by a judge who assumedly heard the facts of the case and reviewed your driving and criminal history records.

In recent years District Attorney’s have been more vigorous in their oppositions to license reinstatements and judges seem to be more reluctant to order reinstatements in cases where the defendant has multiple DUI events on his or her record.

If the judge denied your motion to reinstate without prejudice, then you can refile the motion once you have undergone alcohol treatment, counseling, and probation supervision sufficient to demonstrate that any alcohol issues have been brought under control. If the motion was denied with prejudice against refiling, your only recourse is to have your lawyer file a motion for reconsideration of the denial decision. This must be filed in accordance with the standards and requirements set forth in the Massachusetts court rules.

A Court Order for License Reinstatement is necessary because in Massachusetts, being found not guilty of OUI or having the OUI charge dismissed does not automatically reinstate your license or driving privileges which have been revoked due to a chemical test refusal, which is an administrative suspension not directly tied to the outcome of the criminal case.

Hardship License Difficulty Increases with Number of DUI Offenses

In Massachusetts, when it comes to getting a hardship license for a DUI license suspension, generally the more DUI incidents, breathalyzer refusal suspensions, or other indicators of potential drunk driving incidents, such as leaving the scene of a property damage or personal injury accident you have on your record, the more difficult it becomes to obtain a hardship license from either the Registry of Motor Vehicles or Board of Appeal.

Most first offenders, for example, do not even need to hire a lawyer to obtain a hardship license from the Mass. RMV. Within 3-4 business days after a plea, so long as the 1st offender has acceptable proof of employment, proof of a lack of public transportation, and evidence of enrollment in the 24D first offender program, the Registry will generally grant a hardship license and no lawyer is necessary.

When it comes to second offenders, the documentation required for a hardship license increases substantially. The applicant must demonstrate not only that he or she has a bona fide hardship, but also that the applicant has his or her alcohol problem under control such that granting a hardship license will not endanger the public. An alcohol evaluation is required in these cases and the Registry will not accept a 1st offender 16 week outpatient program. Instead, the Registry will be looking for completion of the 14 day in-patient DUIL Program which is operated out of Tewksbury State Hospital.

Most third and fourth offenders end up at the Board of Appeal, because they do not have proof of completion of the 90-day residential alcohol treatment program which the Registry requires in all such hardship license cases.  These repeat offenders must present a convincing case regarding hardship and that reinstating their licenses does not pose an unacceptable risk to public safety. A hardship license applicant in this situation must convincingly show that the applicant’s alcoholism has been brought into remission and that he or she is highly unlikely to reoffend. A favorable alcohol evaluation is essential as well as a proven commitment to sobriety.

If you are a multiple offender who is seeking a hardship license in Massachusetts, I urge you to contact me for a free review of your situation and consultation regarding your options. I have helped large numbers of people legally reinstate their driver’s licenses and I may be able to help you get back on the road with a hardship or full license.

Hardship Licensing in Massachusetts

The loss of a driver’s license in Massachusetts can be devastating, due to the general lack of public transportation in the area. Fortunately, for those who have had their licenses suspended or revoked, it may be possible to obtain a hardship license. These licenses are issued to qualified applicants who have had their licenses suspended or revoked for operating under the influence, being a habitual traffic offender, drug convictions, 7 surchargeable events, license fraud, and various traffic violations.

Depending on the driver’s record and the type of license suspension or revocation, hardship licenses which allow the holder to drive for 12 hours each day, are issued by either the Massachusetts Registry of Motor Vehicles or the Board of Appeal of the Massachusetts Division of Insurance. Hardship licenses are issued for work, education, or medical purposes and sufficient documentation must be provided at the hardship license hearing. Legal representation at the these hearings is strongly recommended, especially if you are appearing before the Board of Appeal.

No hardship licenses are granted for suspensions due to non-payment of citations, child support, state taxes, or property damage claims. All outstanding financial obligations and must be paid prior to reinstatement, this includes any reinstatement fees which are mandated my Massachusetts Law. Also, required classes and courses must be taken as a condition of license reinstatement or the issuance of a hardship license.

Anyone who is obtaining a hardship license due to a DUI suspension, who has 2 more DUI convictions on his or her records will have a “Z” ignition interlock restriction on his or her license while on a hardship license and for 2 additional years after having the hardship restriction removed.

Hardship licenses are generally not available when a driver’s license is suspended or revoked due to an out of state suspension or a block in the National Driver Register. The driver must reinstate in the other state prior to attempting to obtain a hardship or full license in Massachusetts.

Those who are denied hardship licenses by the Massachusetts Registry of Motor Vehicles have the right to appeal the denial to the Board of Appeal, pursuant to G.L. c. 90 § 28. Those who are denied hardship licenses by the Board of Appeal have the right to appeal the denial to Superior Court in Suffolk County or in their county of residence, pursuant to G.L. c. 30A. Hardship licenses denials are very difficult to win in Superior Court, due to the wide latitude and discretion conferred upon the Board of Appeal and the substantial deference afforded to Board decisions.

Driver Arrested for 3rd Offense OUI with Ignition Interlock Device

The Lawrence Eagle Tribune reported yesterday that a repeat DUI offender was just arrested in Pelham, New Hampshire for a 3rd offense OUI charge while he was operating a motor vehicle which was equipped with an ignition interlock device. According to police, John T. LeVasseur was “all over the road.” He was reported to be highly intoxicated and he was arrested after he failed field sobriety evaluations and police found marijuana and empty booze bottles in his motor vehicle.

It remains unclear how LeVasseur was able to start and operate his vehicle in such an intoxicated condition. The ignition interlock device will not allow a vehicle to start if the driver’s blood alcohol content is at or above .02. Also, the driver is required to take rolling re-tests at random periodic intervals, while the vehicle’s engine is running. The driver claims that he blew into the IID and it allowed him to start the vehicle. The case is still under investigation and the Registry of Motor Vehicles will be able to receive the alcohol readings downloaded from the ignition interlock device.

In addition to any New Hampshire license revocations that LeVasseur faces, he will face an additional Massachusetts license suspension for violating the ignition interlock section of Melanie’s Law if he is found to have circumvented or tampered with the IID. Also, if he failed rolling re-tests or had someone else blow into the device so that he could start his vehicle, he will face an additional long-term license revocation for the ignition interlock violation.

The National Driver Register

National Highway Traffic Safety Administration of the U.S. Department of Transportation oversees the National Driver Register (NDR). This national database contains information regarding drivers who have had their licenses or driving privileges suspended, revoked, blocked, or otherwise taken away. The NDR records only point to records maintained by state motor vehicle departments such as the Driver Control Unit of the Massachusetts Registry of Motor Vehicles. Also, the NDR contains only identification information and not complete historical information. The state DMV records contain the substantive information regarding the actual license suspension or revocation.

The federal law governing the NDR mandates that all state motor vehicle departments and driver licensing officials must submit information regarding individuals whose right to drive a motor vehicle has been denied, suspended or revoked for cause, or who have been convicted of certain serious traffic related violations, such as DUI.

You have a right to request for any information regarding your driving record that may be contained in the National Driver Register by sending a written request to the NDR. If your status in the NDR is “ELG” or ELIGIBLE, this means that your privilege to drive in a particular state is valid. If your NDR status is “NOT,” this means that your privilege to drive is invalid. You would need to contact the department of motor vehicles to obtain the specific details relating to your NDR record(s). A NDR status of LIC means that you’re licensed in a particular state. The NDR code NEN means that your right to drive is invalid due to non-moving violations.

Although States use the NDR as part of their driver licensing process, it is the responsibility of each state’s motor vehicle agency, such as the Mass. RMV, to ensure the accuracy of the data submitted to the NDR. The NDR functions as the repository of the data it but can make no changes to this information. This is because each state’s DMV maintains the sale responsibility for the issuance and renewal of all driver licenses, which includes suspension/revocation actions that have been taken against your right to operate. Reinstatement requirements must be resolved directly with any state DMV which has taken the action against your license or driving privileges.

If the Massachusetts RMV is involved, you may contact a lawyer who specializes in Registry cases, such as Attorney Brian E. Simoneau.

Connecticut DUI Triggers Massachusetts Suspension

Being a Massachusetts Resident or License holder and being charged with operating under the influence (OUI) or driving while intoxicated (DWI) in another state can expose the unlucky motorist to license suspension consequences in both the state where the DUI occurred and in Massachusetts. This is because the interstate compact requires motor vehicle departments across the country to notify the DMV in a driver’s home state whenever the driver is convicted of DUI or a “like offense,” meaning anything substantially similar to DUI. Notification can be accomplished directly or through the National Driver Register which is a centralized database of DUI and other related driver’s license suspensions and revocations.

To further complicate the out of state DUI situation, each state has different ways of dealing with DUI offenses. In Massachusetts, for example, first offense operating under the influence charges are dealt with pursuant to G.L. c. 90 § 24D.  Some states mandate ignition interlock devices for first offenders, while others do not. States also treat breathalyzer refusals differently and some states have hardship licensing while others do not.

Pursuant to Conn. Gen.Stat. § 54–56g, the State of Connecticut has a pretrial DUI diversion program which is similar to the Mass. 24D program. Under the Connecticut program, a qualified DUI offender can earn a dismissal of the criminal drunk driving by successfully completing the alcohol education program. To be eligible for the alternative OUI disposition program in Massachusetts,  the defendant must admit that there were facts sufficient to support a conviction for operating under the influence. The Connecticut pretrial diversion program has no such requirement. Nevertheless, in the case of Scheffler v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, the Massachusetts Appeals Court has ruled that a Connecticut DUI which is resolved pursuant to their alcohol diversion program is the same as a Massachusetts DUI conviction for license suspension, revocation, and hardship licensing purposes.  Scheffler tried, unsuccessfully, to convince the Board of Appeal that the Registrar of Motor Vehicles should not have added the Connecticut DUI to his Massachusetts Driving Record, upon which MassDOT relies for the imposition of license suspensions and revocations as  well as determinations regarding ignition interlock device requirements.

7 Surchargeable Events Suspensions

The Board of Appeal on Motor Vehicle Liability Policies and Bonds, which was established pursuant to G.L. c. 26, § 8A within the Massachusetts Division of Insurance hears hardship license requests and driver’s license suspension appeals, such as those for 7 surchargeable events. The Board of Appeal also administers and interprets the Safe Driver Insurance Plan.

According to the Board, motor vehicle equipment regulations are in place to prevent dangerous roadway situations caused by improperly equipped motor vehicles. Brake lights signal other drivers that a vehicle is stopping, Defective or inoperative brake lights are clearly dangerous and a public safety issue. The Board of Appeal has ruled that a defective equipment/brake light violation is significant and merits inclusion as a reportable traffic law violation under the Safe Driver Plan. The Board has concluded that these violations which result in a responsible finding can count towards a 7 surchargeable events suspension.

Under G.L. c. 175, § 113B, a seventh surchargeable event within years will result in a license suspension and it has upheld license suspensions based on  defective equipment/brake light violations. The Board believes that Motor vehicle equipment regulations are in place to prevent dangerous roadway situations caused by improperly equipped motor vehicles. The Appeals Board has ruled that brake lights signal other drivers that a vehicle is stopping, Defective or inoperative brake lights are clearly dangerous and a public safety issue. According to the Board, a defective equipment/brake light violation is significant and merits inclusion in the calculation for a 7 surchargeable events suspension and as a reportable traffic law violation under the Massachusetts Safe Driver Plan.

The good news is that the Board of Appeal has the authority to grant hardship licenses and full reinstatements on 7 surchargeable events suspensions.

Board of Appeal Finding and Order is not a License

If you have appealed your license suspension to the Board of Appeal and the Board has granted you a hardship license or some other relief from the suspension of your license or right to operate in Massachusetts, you cannot begin driving until MassDOT has reinstated your license or right to drive.

After your Board of Appeal hearing, the Board will send a written decision which is called a “finding and order.” The Board will mail this finding and order to either you or your lawyer. The Board will not give you a decision over the telephone, as all decisions are required to be in writing.

Upon receipt of the “finding and order,” either directly or from your attorney, you must bring the document to a Registry Hearings Officer so that the hearings officer can enter the decision into the RMV computer system. Registry clerks cannot enter Board decisions, as they must be entered by hearings officers.

Once the Board of Appeal decision is entered into the computer, you have to pay any required reinstatement fees as well as any other financial obligations such as unpaid citations. Also, you may have to take driver retraining classes, a written test and/or a road test. Both the Board and the Registry have the ability to place restrictions and requirements on license reinstatements and you cannot legally drive unless and until you have satisfied all of the requirements.

I recently obtained a full license reinstatement for a client who had his license suspended for 7 surchargeable events. Prior to going to the Registry and getting his license reinstated, he was caught driving by the police, stopped, and arrested. He was charged with operating after suspension, which is a criminal offense which will trigger a new license suspension if he is convicted. Also, the Registry notified the Board of Appeal that the client was caught operating after suspension and the Board rescinded its order reinstating the client’s license and it issued a new finding in order wherein the Board affirmed the 60 day suspension for 7 surchargeable events. This case shows how important it is to follow reinstatement and hardship licensing requirements.

Hardship Licenses for 1st Offenders in Massachusetts

I have been getting a lot of calls from OUI 1st offenders who are looking for hardship licenses. They have had their licenses suspended for 180 days for breathalyzer refusals and, understandably, they want to get back on the road with hardship licenses. However, the general rule in Massachusetts is that you cannot get a hardship license while serving a breathalyzer refusal suspension.

There is an exception to the no hardship license during a refusal suspension rule. The exception is that 1st offenders who have their cases resolved pursuant to G.L. c. 90 § 24D can get be considered for 12 hour hardship licenses. However, the Registry of Motor Vehicles will not consider anyone for a hardship license unless and until the first offender is legally qualified and the operating under the influence case was resolved under § 24D. This means that you cannot be considered for a hardship license immediately after your drunk driving arrest. Instead, you must wait until the case is resolved in court. There are absolutely no exceptions to this rule, no matter how important you job is or how badly you need to drive. The Registry has no legal ability to consider you for a hardship license until your case is resolved.