Category Archives: DUI Hardship Licenses

DUI Alcohol Program Completion is Critical

Posted by Brian Simoneau on April 20, 2011 505 comments

Those who are convicted of DUI in Massachusetts or those who admit to sufficient facts in exchange for a continuance without a finding (CWOF) are routinely assigned to an alcohol education program.  This program assignment is an important part of the DUI case disposition and completion of the required alcohol program is almost always a condition of probation. First offenders are assigned to a 16 week outpatient alcohol program, known as the 24D program. DUI 2nd offenders are usually assigned to a 14 day in-patient program, known as the DUIL program, and 3rd offenders are routinely assigned to a ninety (90) day in-patient DUI alcohol treatment program.  For subsequent offenders, the alcohol programs also require completion of mandatory aftercare.

Completion of any assigned DUI alcohol program is critical because the failure to complete a program can result in a probation violation and possible jail time. For example, in the case of Com. v. Tarasuik, a District Court judge revoked the drunk driving defendant’s probation and imposed a suspended sentence of six months in the house of correction.  A probation violation notice issued after the defendant failed to appear at three consecutive required alcohol program classes. An arrest warrant issued when the defendant defaulted on the violation notice.

The defense claimed that the probation revocation for failure to enroll in the alcohol program, which the defendant claimed he could not afford, violated his constitutional rights. The Mass. Appeals Court upheld a probation revocation.  It held that, by continuously failing both to report to the probation department and to enroll in or complete a mandatory education program, the defendant engaged in an ongoing violation of his probation.

This case underscores the importance of completing an assigned alcohol program, to avoid potentially severe consequences in the form of a probation violation. Also, failure to complete a required program usually results in the revocation of any hardship license.

Massachusetts ignition interlock device installation procedures

Posted by Attorney Brian E. Simoneau on March 2, 2011 951 comments

Under Melanie’s Law, all second or subsequent DUI offenders are required to have an approved ignition interlock device installed in any vehicle which the DUI offender owns, operates, or leases. This requirement applies to DUI suspensions which were imposed on or after January 1, 2006, the effective date of the ignition interlock provision of Melanie’s Law. Interlock devices produced by Consumer Safety Technology (CST), Draeger, Guardian, LifeSafer Interlock, Sens-O-Lock, and Smart Start.

Interlock is required for any hardship or full license issued as a result of a second or subsequent DUI offense. Ignition interlock required drivers must have the device installed for the entire term of any DUI hardship license and for a two year period after getting a full license reinstatement.

The ignition interlock installation is a multi-step process which begins with obtaining clearance to drive, either with a Massachusetts hardship or full license. This clearance is obtained by going to a hearing, either at the Registry of Motor Vehicles or Board of Appeal. Once the driver is approved for either a hardship or full license, the driver must go to the Registry of Motor Vehicles to begin the ignition interlock installation procedure. This process begins by meeting with a Registry Hearing Officer who will review the driver’s record and confirm that he or she is eligible for either a full license reinstatement or a hardship license.

Once the Registry Hearings Officer confirms eligibility, he or she will give the driver an “ignition interlock package.” This package contains forms and affidavits which must be signed in the presence of a notary public. Also included in this package is a list of approved ignition interlock instillation locations. The driver should select an ignition interlock vendor and bring his or her vehicle to the installation location so that the device can be installed. While the device is being installed, the user will receive training on how to operate the device.

Once installation is complete, the driver should bring proof of installation to a Registry of Motor Vehicles hearing officer. The hearing officer will then issue the driver a license with a Z (ignition interlock) restriction. The driver can now legally drive his or her interlock equipped motor vehicle.

In cases where the driver does not own a vehicle and/or needs to get insurance, he or she should have the vehicle towed to the installation facility or driven there with a general registration plate, such a dealer plate. The driver would then have the device installed, get his or her license reinstated by showing proof of installation to a RMV hearing officer, go to his or her insurance company with the RMV-1 form, show the insurance agent that he or she is now licensed, get the RMV-1 form stamped by the insurance company, go back to the RMV and get the vehicle registered, and finally return to the ignition interlock facility and put the new plates on the vehicle.

Interlock required drivers who live out of state can have the device removed, or not installed, so long as they prove out of state residency and sign an affidavit stating that they live out of state and will not drive in Massachusetts without the ignition interlock device.

For interlock-required drivers who live in Massachusetts, there are no absolutely exceptions or ways to avoid the ignition interlock device. If a driver is legally interlock required, he or she must have the device for a minimum of 2 years. If there are violations, the Registry will extend the interlock requirement for a minimum of 6 months.

Interlock required drivers must have the device inspected, maintained, and monitored monthly. If the results of the monthly monitoring show certain alcohol readings, the driver will be called into the Registry of Motor Vehicles for an interlock violation hearing, which could result in a 10 year or lifetime license suspension. If you are facing an ignition interlock violation, please contact me. I have an outstanding track record in the area of interlock violation appeals and I have proven that the ignition interlock device is unreliable and registers false positive readings.

The Mass. 24D OUI First Offender Program

Posted by Attorney Brian E. Simoneau on March 2, 2011 2,984 comments

This post will explain the eligibility requirements and benefits of the Massachusetts DUI First Offender Program, which is commonly referred to as the 24D Program.

The Mass. 24D First Offender program allows Massachusetts OUI First Offenders to reduce the statutory one year license suspension for first offenders and, sometimes, the 2 year license suspension for second offense DUI to either 45 or 90 days. It also allows for participants to apply for a hardship license upon confirmation of enrollment in the 24D 16 Week Outpatient Alcohol Education Program.

The 24D program allows qualified first and second offenders to apply for a hardship license during the 180 day or 3 year breathalyzer refusal suspension period. This is the one exception to the rule that no hardship license can be issued while a chemical test refusal suspension is in effect.

A 24D disposition involves being placed on probation for at least one and up to two years and being assigned to a 16 week out-patient alcohol education program. If 24D participants fail to complete or drop out of the alcohol program, the Registry will likely take action against the individual’s driver’s license. The program also requires the payment of costs, fines, and fees.

Because of the ability to apply for a hardship license almost immediately after enrollment into alcohol education classes, the 24D program is oftentimes a desirable outcome, especially for repeat DUI offenders. However, the program is limited to first offenders and those second offenders whose first OUI conviction is 10 or more years prior to their second offense. Second offenders with sufficiently old first offenses may therefore be edible for what is known as a “second chance first offender” disposition. There is absolutely no way for a 3rd, 4th, or 5th OUI offender to get the first offender program. Even if a court awarded a 24D disposition in such a case, the Registry could legally refuse to reduce any suspension or consider the individual for a hardship license.

Please contact me if you have any questions regarding the Massachusetts 24D First Offender Program.

The Mass. RMV Board of Appeal: 2 Common Mistakes in Hardship License Cases

Posted by Attorney Brian E. Simoneau on March 2, 2011 986 comments

The Board of Appeal of the Massachusetts Division of Insurance has the authority to grant hardship licenses, even when the Mass. RMV has refused to do so. The majority of appeals which the Board hears are Massachusetts DUI License suspensions. A large number of appellants have contacted me for assistance after they made the mistake of trying to represent themselves before the Board of Appeal and lost. Once this happens, for all practical purposes, the only recourse is to seek reconsideration or permission to file a new appeal with the Board. Although it is technically possible to appeal further to superior court, these appeals almost always fail. Under Massachusetts law, the Board is vested with a wide latitude and discretion in DUI hardship license cases. When it comes to the issuance of a hardship license to a DUI offender, the Board of Appeal is extremely circumspect and judicious. The Board denies more hardship license applicants than it approves.

The two biggest mistakes that people make when trying to get a hardship license at the Board of Appeals is appealing too early and appearing before the Board unprepared, without a lawyer. Massachusetts DUI license suspensions are statutory and the law specifies when someone can be considered for a hardship license. DUI second offenders must serve 1 year of the 2 year license suspensions, 3rd offenders must serve 2 years of the 8 year loss of license, and OUI 4th offenders must serve 5 years of the 10 year DUI license revocation. Appearing before the Board too soon is generally not a good idea and the Board generally requires appellants to serve the minimum suspension periods listed above.

Secondly, trying to represent yourself before the Board can result in a denial of hardship license relief. Many who come before the Board without a lawyer do not know what to expect at their Board of Appeal hearing and they have not adequately prepared their cases. Most are exceptionally nervous and they cannot convey, to the Board of Appeal, the key points that will put them back on the road. They are unable to adequately document and present a significant hardship or they cannot convince the Board that their problems have been brought under control, such that they do not present a risk to public safety.

Both of these problems can be avoided by hiring a lawyer who specializes in Massachusetts Board of Appeal cases before filing your appeal. It is a misconception that a hardship license applicant has “nothing to lose” by going before the Board of Appeal too early, unprepared, or unrepresented. In speaking with desperate clients who contact me after they represented themselves and lost their cases, I have seen firsthand the outcome of many of these cases.

Mass. Appeals Court Upholds Lifetime DUI Revocation

Posted by Attorney Brian E. Simoneau on March 2, 2011 769 comments

In the case of Kelly v. Board of Appeal on Motor Vehicle Liability Policies and Bonds & the Registry of Motor Vehicles,  2010 WL 290502, January 27, 2010, No. 09-P-305, the Massachusetts Appeals court upheld the lifetime DUI revocation of Kelly’s Massachusetts Driver’s License.
Kelly had 5 DUI convictions. However, at his trial for the 5th DUI offense, the court only found him “guilty to so much of the complaint as alleges a 1st [OUI] offense.” In his appeal, Kelly claimed that that the lifetime 5th offense DUI suspension of his driver’s license by the Registry of Motor Vehicles was improper because the judge found him guilty of a first offense DUI, not a fifth offense as charged.

The Mass. Appeals Court summarily dismissed Kelly’s argument. The court agreed with the reasons cited by the superior court judge who upheld the lifetime loss of license. The law on 5th offenders states clearly that if a person has been  convicted of or assigned to an alcohol or drug treatment program 5 or more times, “such person’s license or right to operate a motor vehicle shall be revoked for the life of such person…” Thus, whether or not the court treated the DUI as a first or 5th offense does not matter at all. If the official records of the Registry show 4 prior offenses, the DUI defendant’s license will automatically be revoked for life. It may, however, be possible to obtain a hardship license.

In lifetime DUI license revocation cases, no hardship license application should be made unless and until the applicant has serve at least 5 years of the lifetime revocation.

Bus Driver Claimed to be Driving Under the Influence

Posted by Attorney Brian E. Simoneau on March 2, 2011 578 comments

The Worcester Telegram recently reported of a school bus driver who had his license suspended as a result of animmediate threat complaint filed by the Worcester Police Department. Apparently, the bus driver was involved in a “road rage” incident with a motorist who was following the school bus. The motorist reported that the bus driver was “exhibiting odd behavior” and the police stopped the bus as a result thereof.

When the bus driver, who apparently has a clean driving record, told the police that he had been prescribed Oxycontin, the police officer filed, with the Mass. RMV, an immediate threat report wherein he wrote “OUI,” suggesting that the driver had been operating under the influence. Immediately after the incident, the bus driver took drug and alcohol tests which were negative.

The bus driver has filed an internal affairs complaint against the Worcester Police Officer who stopped him and filed the immediate threat complaint. When the RMV receives immediate threat notices, it immediately suspends the driver’s license and schedules a hearing at the RMV Driver Control Unit in Boston. The Worcester Police claimed that the officer “erred on the side of caution” when he filed the report with the Registry.

Certainly, a school bus driver who is driving a busload of students while under the influence of Oxycontin is a serious issue. Here, however, it seems that the driver was no doing so. Instead, he was the victim of an angry motorist who reported him to the police, who “erred on the side of caution” when they filed the report which resulted in the immediate suspension of the driver’s license. The Worcester Telegram article was the most commented on Today, and it had received 94 comments at the time of this post.

The RMV Board of Appeal is on the Move

Posted by Attorney Brian E. Simoneau on March 2, 2011 733 comments

As of March 22, 2010, the Board of Appeal of the Division of Insurance of Consumer Affairs and Business Administration will be moving from its South Station location to the 8th floor of 1000 Washington Street, the former Teradyne Building in Boston’s South End.

The RMV Board of Appeal hears Massachusetts license suspension and reinstatement appeals, as well as ignition interlock violation appeals, and hardship license requests.

At the new location, the Board of Appeal will join other state agencies such as the Division of Banks, Division of Professional Licensure, and the Mass. Dept. of Telecommunications and Cable.

As a Massachusetts DUI Lawyer and hardship license specialist, I appear before the Board of Appeal at least on a weekly basis.

The Board’s new mailing address will be: 1000 Washington Street, 8th floor, Boston MA 02118-2218. However, hardship license and accident surcharge appeal forms will still be mailed to the post office box addresses appearing on the forms. In addition to holding hearings at its new Boston location, the Board will continue to hold hardship license, ignition interlock, and license suspension hearings at its other off-site locations such as the Marlborough District Court.

This move represents and effort on the part of the state to consolidate offices, increase efficiency, and save money on rent. The state executed a 10 year lease for the office space.

DUI Convictions, Accidents, & Tickets Sharply Increase Insurance Rates

Posted by Attorney Brian E. Simoneau on March 2, 2011 474 comments

Under the Massachusetts Safe Driver Insurance Plan, insurance companies sharply increase automobile insurance rates for those who have been convicted of drunk driving, operating after suspension, driving to endanger, or a variety of other traffic violations. Insurance companies will also increase your car insurance rates for 6 years if you have been found to be more than 50% at fault in a motor vehicle accident, no matter where the accident occurred. Massachusetts car insurance surcharges can cost thousands of dollars for those who have any DUI convictions, surchargeable accidents, or traffic tickets on their driving records.

One of the ways to avoid these expensive surcharges is to win your DUI case and appeal any citations and at fault accidents with the help of a surcharge appeal lawyer. My office is committed to helping our clients keep their insurance rates down by fighting DUI cases and other automobile surchargable events. Motorists have 20 days to appeal a civil motor vehicle citation and 30 days to appeal car accident surcharges. The instructions for both of these types of appeals are printed on the back of the traffic ticket or surcharge notice. Massachusetts surcharge appeal lawyers are available to help.

 

Proof of Prior Convictions Required in Mass. DUI cases

Posted by Attorney Brian E. Simoneau on March 2, 2011 778 comments

In the recent Massachusetts DUI case of Commonwealth v. Fisher, Lawyers Weekly No. 81-411-10, Appeals Court No. 09-P-154, the prosecution was unable to prove beyond a reasonable doubt that the DUI defendant had committed two prior operating under the influence offenses. Those arrested for second or subsequent DUI in Massachusetts are entitled to require the prosecution to prove not only that the defendant operated a motor vehicle while under the influence, but that the defendant had been previously convicted of DUI. The prosecution must prove each and every prior drunk driving offense.

Fisher was convicted in District Court of operating a motor vehicle while under the influence of liquor (OUI), 3rd offense, and leaving the scene of an accident after causing property damage. The Massachusetts Appeals Court ruled that Fisher’s DUI conviction, as to the third offense element.Melanie’s Law made it easier to prove prior offenses, but the Commonwealth must still introduce sufficient evidence, usually in the form of court and Registry records, to properly identify the drunk driving defendant and show that he or she was convicted of the prior offenses. The prosecution must prove, beyond a reasonable doubt, that the defendant in the courtroom is the same person named in records showing prior drunk driving convictions. Mere identity of name is not sufficient to indicate an identity of person. Identity must be proven by other demographical and biographical information.

Because the government is required to prove prior offenses beyond a reasonable doubt, it may make sense to take a DUI case to trial on that limited issue. If the Commonwealth is unable to prove its case, by showing prior convictions, the court will not be able to subject the defendant to the enhanced penalties associated with the subsequent drunk driving offense.

However, the Registry Motor Vehicles is not constrained by the requirement to prove prior offenses and, for ignition interlock and license suspension purposes, it can count prior offenses based on the official records of the Registrar.

Mass. DUI Hardship Licenses

Posted by Attorney Brian E. Simoneau on November 12, 2010 2,743 comments

 A Massachusetts Hardship License, which is a limited license, valid for 12 hours, may be an important part of recovering from a drunk driving conviction. Hardship licenses are issued after a DUI second offender serves 1 year of his or her 2 year suspension, after a DUI 3rd offender serves 2 years of his or her 8 year license revocation, and after a DUI 4th offender serves 5 years of the 10 year DUI license revocation.

Except in DUI 1st offender and “second chance” first offender cases, which are resolved pursuant to G.L. c. 90 § 24D, there is no ability to get a hardship license during the term of a breathalyzer refusal suspension period. In fact, the Board of Appeal has stated that it does not have jurisdiction over chemical test refusal suspensions. According to the RMV Board of Appeal, these breathalyzer suspensions must be appealed first to the Registry and then to the District Court having jurisdiction over the DUI offense.

For second and subsequent offenders, getting a hardship license is not easy. Both the Board of Appeal and the Registry require that the applicant provide certain documentation and that he or she convincingly demonstrates that his or her alcohol problem is under control and that he or she has a legitimate hardship which warrants relief. Even when this is successfully demonstrated, both the Registry and Board of Appeal still have the legal right to deny a hardship license request.

The purpose of a DUI hardship license is to allow the person who was convicted of DUI to be able to drive for work, school, or medical reasons. However, these are just the reasons of the issuance of the 12 hour limited license. Once issued, the hardship license holder is free to drive wherever he or she wants. The only distinction between a hardship license and a full license is that the holder of a hardship license, which is also referred to as a Cinderella license, or a 7 to 7 license, must only drive during the allowed 12 hour period.

I have helped hundreds of people begin to put their DUI convictions behind them by getting hardship licenses. I have also helped attorneys with hardship licenses and other legal issues involving the Massachusetts Registry of Motor Vehicles and the Division of Insurance Board of Appeal. If you need any information, assistance, or representation, please contact me.