Massachusetts DUI Law : Mass Lawyer & Attorney for Drunk Driving Arrests in Boston, Worcester, Framingham

The Worcester Telegram recently reported of a school bus driver who had his license suspended as a result of an immediate 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.
 

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The Massachusetts License Suspension Law requires that whenever a Massachusetts resident or license holder is convicted of a crime in another jurisdiction, the Registry must treat the offense as if it had been committed here in Massachusetts, for license suspension purposes. 

One issue which often arises because of the above-cited law is whether or not lesser forms of operating under the influence of intoxicating liquor such as Driving While Alcohol Impaired (DWAI) is similar enough to the Massachusetts offense of OUI to be treated as such by the Mass. RMV and Board of Appeal. This situation comes up where Massachusetts residents and/or license holders are cited in New York and Colorado, both states which often allow DUI charges to be reduced to DWAI.

In the case of Brestien v. Board of Appeal, which was published today, the Massachusetts Appeals Court ruled that the Colorado offense of DWAI is sufficiently similar to the Massachusetts offense of DUI so that it should be treated as such for license suspension purposes. The Mass. Appeals Court reached this conclusion because both the Massachusetts and Colorado statues require proof that a driver’s ability to drive is impaired by alcohol.
 

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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.

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In a civil rights complaint (PDF) filed regarding the death of Kenneth Howe, who died as a result of injuries sustained at a Massachusetts DUI sobriety checkpoint in North Andover, Howe’s estate claims that Howe was “physically removed out of the vehicle, forced to the ground, beaten, handcuffed and placed in leg irons, and dragged to the police cruiser. As a result of the physical beatings and/or the delayed calling for medical services, Kenneth died in North Andover Police and/or Massachusetts State Police custody on or about November 26, 2009. The Office of the Chief Medical Examiner has ruled that Kenneth’s death is a homicide, caused by a ‘blunt impact of head and torso with compression of chest.’”

The complaint (PDF) also admits that Howe, who was riding in his friend’s pick-up truck, was smoking a marijuana cigarette as it approached the DUI checkpoint. The complaint further states that Trooper Gerardi forcefully removed Kenneth from the truck and screamed, “He assaulted me!” It seems that the police smelled marijuana, were investigating further, and Howe became combative, resistant, and physically assaulted Trooper Gerardi. The complaint denies that Howe struck Trooper Gerardi. However, Howe’s attorney would not know if he did or not. Also, it is highly unlikely that Gerardi spontaneously exclaimed that she was assaulted without a reason. 

The complaint states that there was a pit bull riding in the vehicle and it goes on to describe the pit bull as a “docile family dog.” A newspaper photographer from the Eagle-Tribune newspaper took 43 photogrpahs of the incident, according to the complaint.

The case is still being investigated. 

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What should have been a routine interaction between a motorist and police at a North Andover, Massachusetts DUI checkpoint resulted in the 45 year old man’s death. Today, the man’s family IS slated to file a wrongful death suit in U.S. District Court in Boston.

The day before Thanksgiving, Kenneth Howe was a passenger who was riding in a motor vehicle which was stopped by police at a DUI “roadblock.” The medical examiner ruled the death a homicide, which simply means that it was death at the hands of another. The ruling does not indicate whether the homicide was justifiable or not. The Essex County District Attorney’s Office is investigating the death and no criminal charges have been filed. The officers involved have not been placed on administrative leave or restricted duty.

What exactly happened at the DUI checkpoint is unclear. However, it appears that Howe had been smoking marijuana on the night of the incident and he fled from the vehicle which was stopped at the DWI checkpoint. New England Cable News (NECN) displayed some photographs of Howe’s arrest in a recent story. The lawyer for Howe’s family is claiming that police beat Howe and used excessive force. Attorney Lenny Kesten, who was recently named one of the most influential lawyers in Massachusetts, is representing the police officers. Attorney Kesten is an outstanding lawyer and a good friend. In a news interview with Channel 5 last night, he declined comment because he had not been served with the complaint, which names approximately 30 Massachusetts Police Officers and State Troopers as defendants. More information on this case will be posted as it becomes available.

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I routinely get questions and inquiries from Massachusetts residents who were arrested in for DUI New York and convicted the lesser offense of DWAI, which stands for driving while alcohol impaired. In New York, this is the least serious of DUI offenses and it is considered a non-criminal traffic violation, which does not result in a criminal record. In New York, a first offense DWAI results in mandatory 90 day suspension of the driver’s license or right to operate.

Numerous Massachusetts driver’s license holders have asked me how the Mass. RMV will treat a New York DWAI. This article will hopefully answer that question.

First, an out of state license suspension will generally trigger an automatic license suspension in Massachusetts under reciprocity. This means that when the Massachusetts Registry of Motor Vehicles gets notified via the National Driver Registry of an out of state suspension, a mandatory NDR suspension will be imposed. To clear this suspension you must bring 3 items to the Mass. RMV: (1) a clearance letter from the other state evidencing that you have served your time and are clear to drive in that state, (2) a certified copy of the out of state driving record, and (3) a certified copy of the out of state driving record. This will clear the indefinite NDR suspension.

However, the Massachusetts Registry of Motor Vehicles will treat the NY offense of DWAI just like a Massachusetts DUI. This is because the Massachusetts License Suspension law states that “if the registrar receives official notice...that a resident of the commonwealth or any person licensed to operate a motor vehicle under the provisions of this chapter has been convicted in another state, country or jurisdiction of a motor vehicle violation, the registrar shall give the same effect to said conviction for the purposes of suspension, revocation, limitation or reinstatement of the right to operate a motor vehicle, as if said violation had occurred in the commonwealth.” The Registry of Motor Vehicles and the RMV Board of Appeal have determined that a NY DWAI is to be treated like a Mass. DUI.

Further, the Mass. DUI law states that “like violations” committed in other jurisdictions count as Massachusetts DUI offenses for license suspension purposes. Therefore, in summary, the Registry of Motor Vehicles and the Board of Appeal will treat driving while alcohol impaired convictions just like convictions for operating under the influence of alcohol, OUI / DUI.

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A Not Guilty Does Not Automatically Restore Your License on a Mass. Breathalzyer Refusal Suspension

Mass. Drivers who refused the breathalyzer in and were found not guilty of a Massachusetts DUI offense do not automatically get their licenses reinstated. Instead, in cases were all alcohol related charges were resolved in the Mass. DUI defendant’s favor, the defendant can petition the court for a restoration of the driver’s license.

There is a legal presumption that the license should be restored and, to block the license restoration, the prosecution must establish that it is more likely than not that returning the DUI defendant’s license would endanger public safety. The judge hearing the breathalyzer refusal case is required to make written findings of facts regarding his or her decision.

The ability to try to get a breathalyzer refusal suspension vacated may encourage Massachusetts DUI defendants to take the case to trial. A dismissal or not guilty verdict on the OUI charges, at least, gives the driver a chance to get his or her license returned.

Massachusetts DUI lawyers should approach these license reinstatement hearings very carefully. In cases involving repeat DUI offenders, it is important not to apply for license reinstatement too early and it is critical to have a plan. There should be some mechanism in place to insure the judge that the OUI defendant has his or her alcohol issues under control such that he or she is not likely to reoffend. No judge want to learn of a tragedy caused by someone he or she put back on the road. Sometimes a judge will initially deny a DUI license reinstatement motion and allow the DUI lawyer to apply for reconsideration after additional time has elapsed.

In summary, it may be possible to vacate a breathalyzer refusal suspension in Massachusetts DUI cases where the alcohol related charges are resolved by a dismissal or not guilty verdict. It may be also possible to challenge the breathalyzer refusal through other legal means.

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In an article entitled “Drunken driving arrest doesn’t keep Milton school official off road,” the Patriot Ledger Newspaper makes a veiled attempt to criticize the Massachusetts Drunk Driving Law, because it allowed Christopher Huban, a member of the Milton School Committee, to obtain a hardship license, after he admitted that there were sufficient facts to convict him of operating under the influence, first offense.

Like most everyone else who is arrested for 1st offense DUI in Massachusetts, Huban was entitled to participate in the Massachusetts 24D Alcohol Program, which reduced his DUI license suspension from 1 year to 45 days. He will be required to complete a 16 week alcohol program and be on probation for 1 year.

The article seems to be written to spark controversy regarding the practice of allowing those arrested for a first offense DUI to get back on the road with a hardship license, so they can continue to work and support their families. In previous articles, the Patriot Ledger has been critical of hardship licensing. The paper fails to recognize the general lack of public transportation in Massachusetts and the resultant need to drive. The loss of a driver’s license can be an extreme punishment which often results in the loss of employment.

In Massachusetts, a hardship license is valid for a pre-determined 12 hour period each day. The article notes that residents were calling the Milton Police Department, when they saw Huban behind the wheel. The police checked his license and determined that he was legally able to drive. Incidentally, being caught driving on a license that is suspended for DUI will result in mandatory jail time.

The Patriot Leger article also mentions that Massachusetts DUI First Offenders may soon be required to use the ignition interlock device, if Mass. Senate Bill 1925, which is sponsored by Sen. Robert Hedlund, (R) Weymouth passes. Currently, under Melanie's Law, the Massachusetts Registry of Motor Vehicles requires second and subsequent DUI offenders to use Ignition Interlock devices, which sometimes register false positive alcohol readings and trigger 10 year or lifetime license suspensions. The devices prevent a vehicle from starting if the driver’s blood alcohol content is above .02, a very low threshold. If enacted, the new Massachusetts Ignition Interlock Law would require OUI first offenders to use the interlock device during the term of any hardship license and for a 6 month period after getting a full license reinstatement. Interlock-required drivers must pay for installation, inspection, and monitoring.

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Massachusetts DUI Law provides an important right to those arrested for operating a motor vehicle while under the influence of intoxicating liquor, the right to an independent medical examination. The law, G.L. c. 263, § 5A, requires police to inform Massachusetts DUI defendants of this important right “immediately upon being booked” and it requires that the police give those arrested for DUI in Massachusetts a “reasonable opportunity” to exercise this right. Of course, because blood alcohol evidence is “extremely fleeting,” time is of the essence in obtaining a comparison blood test.

In order to exercise the right to an independent medical examination, which may yield exculpatory evidence, the police must notify the person arrested and provide him or her with use of a telephone. The police have no duty to affirmatively assist a DUI defendant with the exercise of his or her right to an examination, but the police cannot prevent or hinder the DUI defendant's reasonable and timely attempt to obtain such an examination.

For example, in DUI cases, the police must promptly contact a bail commissioner to arrange for the defendant’s release on bail, so that he or she can get an independent examination. The law requires that Massachusetts bail commissioners respond promptly to requests for bail hearings.

If the police fail to afford a Massachusetts DUI defendant the right to an independent medical examination, or prevent the defendant from exercising that right, it may be possible to have evidence excluded or the DUI charges dismissed.

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