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

In an effort to reduce drunk driving, the Honolulu, Hawaii Police Department will be posting the photographs of those arrested for OUI on the department’s website. This controversial move is bound to draw support from anti-drunk driving groups and criticism from others, who will likely claim that posting the photographs constitutes an unwarranted invasion of privacy.

It is important to remember that the individuals depicted have only been arrested and not yet convicted. There is a big difference between an arrest and a DUI conviction. Posting photos of those not yet convicted of drunk driving appears to run contrary to the “innocent until proven guilty” concept of due process.

Police have always been allowed to post photographs of wanted persons in an effort to locate and identify them. Here, however, there is no legitimate law enforcement purpose associated with posting the photos. Instead, they are meant to publically embarrass the offenders and serve as a deterrent to future OUIs. The efficacy of this practice in reducing drunk driving incidents has yet to be determined.

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A new law allows police in the State of Rhode Island to force drunk driving suspects who were involved in serious motor vehicle accidents to submit to compelled blood alcohol testing. If a driver refuses to submit to a breathalyzer test, police will now be able to obtain a warrant for his or her blood.

The warrant will allow the police to forcefully obtain the blood sample if the DUI suspect refuses to cooperate. Under the new law, the drawing of the blood must be audio and video recorded.

Approximately 44 states have similar laws, which allow police to obtain the blood of a driver involved in a motor vehicle accident that results in death or serious bodily injury. In Massachusetts, legislation is being considered (Senate Bill 1581) which would allow hospital personnel to inform the police of blood alcohol results. The Massachusetts legislature will likely try to enact a blood alcohol law similar to the Rhode Island law in the not too distant future.

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In the case of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009) (PDF), the United States Supreme Court declared that a defendant in a drug case had the constitutional right to confront and cross-examine a Massachusetts State Police chemist who produced a certificate indicating that a particular substance was, in fact, cocaine. Absent the ability to confront and cross-examine the chemist, the drug certificate was declared inadmissible.

The holding in Melendez-Diaz was based on the Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), wherein the court held that the Confrontation Clause of the U.S. Constitution rendered out of court “testimonial” statements are inadmissible.

This Supreme Court ruling has played out in various drug and gun cases across Massachusetts, where the prosecution has attempted to introduce certificates from chemists and ballisticians wherein items were certified as drugs or guns. Based on Melendez-Diaz, Courts have unanimously excluded this evidence.

The inability to introduce certificates without live testimony from the scientist who conducted the actual scientific testing may play a role in Massachusetts DUI cases. Specifically, Massachusetts courts may prevent the introduction of breathalyzer calibration certificates unless the chemist from the Office of Alcohol Testing who actually certified the breathalyzer is produced for confrontation and cross examination.

Massachusetts breath alcohol testing regulations mandate that breath testing devices and the simulator solution which they use must be tested and certified annually. Absent this annual certification, any breath tests conducted with the uncertified equipment will be rendered inadmissible in court. Although the police officer who administered the breath test routinely appears as a witness, the scientist who tested and certified the breathalyzer as accurate rarely appears. Instead, the prosecution relies on the certificate. This denies the defense the ability to test the veracity and competency of the chemist who issued the breathalyzer certificate.

With the substantial penalties associated with Massachusetts DUI convictions, Massachusetts DUI Lawyers are likely to launch Melendez-Diaz attacks on breathalyzer evidence in the near future.

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The State of New York has recently passed a tough new DUI Law entitled Leandra’s Law. This will mandate the use of the breath alcohol ignition interlock device for all New York DUI offenders, unless a judge makes specific findings that the DUI offender has no prior record of alcoholism. In Massachusetts, Senate Bill 1925 will dramatically strengthen Melanie's Law by requiring Massachusetts DUI first offenders to use the device as well. However, there will be no exceptions to the mandatory interlock requirement here.

In addition to requiring the use of the interlock device, Leandra’s Law increase the DUI penalties for commiting a DUI with a child passenger in the vehicle, and DUI while causing injury to a child passenger. Massachusetts already has laws which severely punish those who commit these offenses.

Leandra’s Law has been touted as one of the toughest DUI laws in the country. However, our Legislature may increase Massachusetts DUI penalties with the enactment of DUI laws which are being considered at the Statehouse. 

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In accordance with G.L. c. 90 Sec. 24.5, the Massachusetts Registry of Motor Vehicles requires anyone with 2 or more DUI convictions on his or her record, no matter where or when they occurred, who is getting a full license or coming off of a DUI hardship license on or after January 1, 2006 to have an ignition interlock device installed in any vehicle which the DUI offender owns, leases, or drives for a period of two years. The Registry also requires mandatory use of the breath alcohol ignition interlock device while the repeat offender is on a DUI hardship license. These requirements were implemented as a result of Melanie's Law. 

The ignition interlock device is not an evidentiary breath test instrument, even though it is used as such. The device has nowhere near the reliability and accuracy of an evidentiary breathalyzer, such as those used in DUI cases. The interlock device is a lockout device, the purpose of which is to lock the ignition of a driver who has a blood alcohol content which registers above a certain pre-set limit. In Massachusetts, that limit is .02. 

Notwithstanding the lack of scientific accuracy of ignition interlock devices, the Registry relies on their readings to impose 10 year or lifetime license revocations. The Registry has an interlock violation hearing process, whereby it provides the alleged interlock violator with a notice of the violations and an opportunity to explain them. In administering the Massachusetts ignition interlock program, the RMV has a difficult job. It must evaluate the IID readings and consider the user’s explanation for them to decide whether or not to take action against the driver’s license. The wrong decision results in either allowing someone to continue to drive who may be a danger to public safety or unfairly revoking someone’s license for 10 years or life. 

The interlock device is far from perfect and false positive alcohol readings sometimes occur. If this happens to you, you should immediately document all of the facts and circumstances of the incident. Important details include: the time and date of the incident, where you were coming from and going to, what happened immediately before the incident, whether you were eating or drinking anything, possible sources of breath sample contamination, the ideates of any witnesses, anything that would help describe or explain what happened, and any communication with the interlock company or service provider regarding the incident. Your notes regarding the alleged interlock violation should be as detailed as possible and made as close in time to the event as possible. 

Many interlock users panic when their devices register alcohol and they immediately turn the ignition off. To the Registry, this may look like incriminating evidence. In other words, it may appear as if the user really had alcohol on his or her breath and he or she turned the vehicle off to avoid additional alcohol readings. The better course of action is to leave the vehicle running and comply with any rolling re-tests. By taking follow-up re-tests, you are providing additional breath samples which, in most cases, show a sharp decline in alcohol readings. 

If feasible, you should immediately go to a police station or hospital emergency room and request a comparison breath or blood alcohol test. This is powerful exculpatory evidence which can be used to refute the false positive interlock reading. If the police refuse to conduct an evidentiary breath test, you should ask them for a preliminary breath test or PBT. In any event, you should request that the police make a log entry wherein they not your situation. 

In the event of a false positive alcohol reading which trigger a lockout, it is usually advisable to proactively notify the Registry’s interlock unit of the situation. By submitting a detailed letter to the RMV explaining exactly what happened and why the interlock alcohol reading is false, you may be able to avoid a Registry interlock violation hearing and possible a 10 year or lifetime license revocation. At minimum, you should record all of the facts and circumstances, as described above. 

If the Registry has charged you with an ignition interlock violation, do not take this situation lightly. Many believe that the Registry will not actually revoke someone’s license for 10 year or life because of an interlock violation, only to learn that they are wrong. The Registry routinely revokes licenses because of IID violations. By following the steps listed above, you may be able to prevent the loss of your license because of a false positive alcohol reading.

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Massachusetts Breathalyzer testing is governed by regulations promulgated by the Mass. Office of Alcohol Testing of the Massachusetts State Police Crime Lab. These detailed breath test regulations govern every aspect of Massachusetts alcohol breath analysis including certification and testing of breath test operators, simulator solution, and breathalyzers. The regulations also cover what training is required for police officers who administer breath tests. In short, the Massachusetts breathalyzer regulations cover nearly every aspect of breathalyzer certification, testing, maintenance, repair, and operation. Failure to comply with these detailed and comprehensive standards will result in the exclusion of breathalyzer evidence.

The breathalyzer is a scientific device which is not infallible. There are documented cases where breathalyzers have failed, malfunctioned, and otherwise produced inaccurate breath test results. Many of the false alcohol readings occur because the breathalyzer does not measure alcohol directly. Instead, the device is supposed to measure alcohol contained in deep lung air and multiply that by 2100. This is supposed to produce an accurate blood alcohol reading. However, many factors can cause an inaccurate reading.

Certain medical conditions such as diabetes, acid reflux (GIRD), and ketoacidosis can cause false breathalyzer readings. Also, burping, belching, and hiccoughing within 15 minutes prior to a breathalyzer test can result in artificially high alcohol readings. Likewise, alcohol trapped in the mouth can cause artificial readings which are sometimes extremely high.

Breathalyzer readings can also be affected by radio frequency interference or RFI. This is caused by radio emissions from cell phones, police radios, and other electronic devices interfering with the electronics of the breathalyzer.

In every DUI case involving breathalyzer evidence, it is essential to investigate the facts and circumstances of the breath test to see if the test was valid. Failure to comply with the Massachusetts breath test regulations is grounds for exclusion of breathalyzer readings. It is also important to see if any of the known causes of false or inaccurate alcohol readings may have influenced the readings. Breathalyzer malfunction and inaccuracy is not only a problem in OUI arrest cases. Blood Alcohol Ignition Interlock Devices are also plagued with accuracy and reliability problems.

In cases where the Massachusetts DUI defendant refused the breathalyzer, the facts and circumstances of the refusal should be thoroughly investigated to see if the breath test refusal was valid under Massachusetts law. To trigger a license suspension, the police must properly document the refusal and the defendant must have been given certain information regarding the breathalyzer refusal penalties.

To summarize, whether you refused the test or not, the case should be investigated by a qualified and experienced Massachusetts DUI Attorney. It may be possible to vacate a breathalyzer refusal suspension or prevent the breathalyzer evidence from being used against you.

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There is a substantial amount of confusion and some misconceptions regarding the level of alcohol intoxication required to be convicted of OUI in Massachusetts. Courts have ruled that a person is considered legally "under the influence," for DUI arrest and conviction purposes, if the individual's consumption of alcohol has diminished his or her ability to safely drive a car. This means that not everyone who has gotten behind the wheel after drinking is "legally intoxicated." Not every motorist with an odor of alcohol on his or her breath deserves to be arrested. Only those drivers who have ingested so much alcohol so as to reduce their ability to drive safely are legally "under the influence."
 

Conversely, a driver does not have to be falling down drunk in order to be considered under the influence of alcohol. Indeed, the line lies somewhere between completely sober and highly inebriated.In order to address this question, in 2003 the Massachusetts DUI Law was amended such that the prosecution in a Massachusetts "drunk driving" case is allowed to proceed on two theories: impairment, as discussed above, or "per se."
 

A per se OUI case is established by proving that the driver's blood alcohol content was at or above .08. Once the prosecution proves this by introduction of breathalyzer or blood alcohol readings, the judge or jury is legally required to find the DUI guilty. This is why many people decide not to take the breathalyzer. By denying the prosecution this critical piece of evidence, it makes a not guilty verdict more likely. Consequently, to encourage people to provide this key evidence, the Mass. RMV imposes breathalzyer refusal license suspensions.
 

The impairment theory requires the prosecution to prove, beyond a reasonable doubt, that alcohol diminished the driver's ability to safely operate a motor vehicle. In a Massachusetts DUI trial, the judge or jury must make this determination by applying their knowledge of alcohol intoxication to the facts of the case. Jurors are expected to decide whether alcohol diminished the driver's capacity by considering the signs and symptoms of intoxication, the driver's behavior, and the arresting police officer's opinion. In cases were evidence of intoxication is severely lacking, at the conclusion of the prosecution's case, a DUI defense attorney can make a motion for a required finding of not guilty. In other OUI cases, where there is at least some credible evidence of diminished capacity, the jury will decide whether there is sufficient evidence to warrant a DUI conviction under the diminished capacity standard.
 

It is important to remember that not everyone who gets stopped and even arrested for DUI is actually intoxicated at the level required for a conviction. There have been numerous cases of people who were arrested for drunk driving taking the breathalyzer and getting a blood alcohol reading of .05 or below. The law requires the police to immediately release these drivers from custody.

If you have been arrested for DUI in Massachusetts, contact an experienced Mass. DUI Lawyer for help.

 

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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.
 

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In rare cases, as a last resort, it may be possible to vacate a Massachusetts DUI conviction by filing a motion for a new trial. In situations where an OUI defendant pled guilty to the crime and did not have a trial by judge or jury, it is sometimes possible to vacate the guilty plea by asserting that, at the time he or she pled guilty to operating under the influence, the defendant was not advised of the collateral consequences of his plea or his constitutional rights to confront witnesses and have a trial by jury. Basically, the motion for a new trial would allege that the guilty plea in the DUI case was not made knowingly and intelligently.
 

The prosecution, of course, has the right to challenge and oppose the motion for a new trial and if the prosecution produces documentation showing that the drunk driving defendant voluntarily waived his rights to a jury trial, the motion must be denied. In Massachusetts DUI cases, there is no time limit for filing a motion to vacate a guilty plea, which must be addressed to the judge who initially handled the DUI case, unless he or she is unavailable, as is often the case.
 

In the case of Padilla v. Kentucky, which is pending before the United States Supreme Court, it will be determined whether an attorney's failure to notify his client about the consequences triggered by a guilty plea constitutes ineffective assistance of counsel, which would allow the guilty plea to be vacated. Depending on the court's decision, this case may have a substantial impact on guilty pleas in Massachusetts OUI cases. Indeed, many attorneys fail to inform their clients about the harsh and severe license suspension penalties which they will face because of Melanie's Law.
 

If the above-described motion is successful, it may be possible to have the DUI charges dismissed or to obtain a not guilty verdict. If any one of these outcomes is achieved, as is often the case, then the guilty charge on the DUI defendant's record is replaced with either a not guilty or dismissal. The clerk's office of the District Court should notify the Massachusetts Merit Rating Board and Registry of Motor Vehicles by sending a new abstract of the case, either electronically or by mail. Once this occurs, the driver can go to the Registry for a hearing and request that any resulting DUI license suspension be reduced or eliminated completely.

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The Massachusetts Registry of Motor Vehicles sometimes commences DUI license suspensions years after the driver has been convicted of the offense. These late suspensions often occur due to a court's failure to notify the Registry of the conviction. Without the necessary conviction information, the Registry is unable to add the suspension to the driver's record. In order to address this issue, in partnership with Massachusetts Courts, the Mass. RMV implemented a computerized notification system whereby the court clerk's office can now efficiently and electronically notify the Registry of Motor Vehicles of a DUI, drug, or motor vehicle law conviction.

This system will undoubtedly streamline and improve the notification process. This is one example of the major technological improvements which Registrar Rachel Kaprielian has implemented. Other such improvements include free electronic license expiration notifications and providing enhanced services through the Registry's website, such as the ability to instantly obtain your Massachusetts Driving Record.

Prior to the implementation of the new electronic notification system, the Registry relied on paper record which were supposed to be mailed in by the courts. This did not always happen and conviction information sometimes never made it into the Registry's computer. In some cases, the Registry added DUI convictions and automatically imposed OUI license suspensions years after conviction. The Registry was without the legal authority to do this.

In no less than five (5) Massachusetts Superior Court Decisions, in Massachusetts OUI cases, it has been unanimously and emphatically stated that the defendant's license is revoked immediately upon conviction, no matter what the Registry does. It is the DUI conviction which automatically and instantly revokes the license, not the Registry. Consequently, years later, the Registry cannot suspend someone's license after the suspension window has been closed. For example, a 2nd offense DUI conviction results in a 2 year license revocation. The RMV only has the legal authority to suspend that person's license within a 2 year window after conviction, and the suspension must expire exactly 2 years after the conviction date, no matter when the Registry imposed it. The plain language of the Massachusetts DUI law supports this. The statutory language reads, in pertinent part, as follows: "[a] conviction of a violation of subparagraph (1) of paragraph (a) shall revoke the license or right to operate of the person so convicted..." Noticeably absent is any mention of the Registry having to do anything. Indeed, it is the conviction and not the Registry which triggers the automatic DUI license revocation.

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Attorney Paul B. Watkins, a former Massachusetts Police Officer and Certified Drug Recognition Expert, recently achieved an excellent result for his client at the Registry of Motor Vehicles. The client faced an automatic revocation of her vehicle's registration for allowing her husband, whose driver's license was suspended, to drive her vehicle.

A little-known provision of Melanie's Law makes it a crime to knowingly allow someone whose license is suspended to drive your car. Through his effective legal advocacy, Attorney Watkins was able to completely vacate the pending revocation of his client's registration.

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There is a widespread misconception among those charged with DUI in Massachusetts that the court’s treatment of a Mass. OUI offense will determine the length of the resulting Massachusetts license suspension. For example, many clients, and even some lawyers, mistakenly believe that if an individual who has multiple DUI convictions is charged as first offender, the Registry will treat him as such. This is absolutely not true. Some also believe that, because the Registry is not bound by the court’s treatment of a particular OUI case, the Registry had discretion and it can do whatever it wants regarding an OUI offense. This is also untrue. 

With respect to DUI license suspensions, the Massachusetts Registry of Motor Vehicles is bound by the law. The Mass. OUI Law requires the RMV to suspend 2nd offenders for 2 years, 3rd offenders for 8 years, 4th offenders for 10 years, and 5th offenders for life. DUI Second Offenders are eligible for consideration for a hardship license after 1 year, 3rd offenders are eligible after serving 2 years, 4th offenders are eligible after serving 5 years, and 5th offenders are not technically eligible to be considered for hardship licensing. However, in some cases, it is possible for a 5th offender to receive hardship consideration from the Massachusetts Board of Appeal.

The OUI license suspensions listed above are mandatory and no judge or court can reduce or eliminate them. Under Melanie’s Law, there is a lifetime lookback period when counting prior OUI offenses and offenses committed anywhere in the world count. Also, it does not matter that the prosecution was unable to prove a previous conviction in the criminal case. The Registry will likely still be able to count this against the driver when calculating the length of the OUI suspension.
In addition to the above-listed OUI suspensions, if there was a breathalyzer refusal, the Registry will impose an additional Chemical Test Refusal Suspension. DUI First Offenders are suspended for 180 days, 2nd offenders are suspended for 3 years, 3rd offenders are suspended for 5 years, and 4th offenders who refuse the breathalyzer are suspended for life. Anyone facing a breathalyzer refusal suspension has a right to challenge the suspension. However, appeals regarding the validity of the CTR suspension must be filed within 15 days of the suspension date.

Those arrested for OUI in Massachusetts should understand these suspensions and not be lured into thinking that because the driver was only charged with a first offense DUI, or a charge was reduced to a lesser DUI, that he or she will get a reduced DUI license suspension. It will not happen. The Mass. RMV will suspend the driver’s license based on his driving record and the law. The Registry will show no lieniency, as the suspension is governed by law.

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I am writing to dispel some myths and misconceptions regarding Melanie's Law, St. 2005, c. 122, which was an act to increase the penalties for drunk drivers in Massachusetts, which was passed and approved on October 28, 2005.

Melanie's law substantially increased the penalties for refusing the breathalyzer and operating under the influence in Massachusetts. It also implemented strict requirements regarding the use of ignition interlock devices for second and subsequent DUI offenders. Under Melanie's Law, there is a lifetime look back period when counting prior offenses.

Many believe that Melanie's Law is unconstitutional because it is "ex post facto." Individuals suffering with long license suspensions and revocations, and those forced to use the ignition interlock device, have expressed a desire to challenge the law on constitutional grounds. Others hope that the Legislature will amend the law to soften its impact. The reality is neither the law makers nor the courts are going to, in any way, water down Melanie's Law. In fact, there is legislation pending to make Melanie's Law even tougher. Indeed, Massachusetts DUI laws are very likely to get more stringent in the future.

In the recent case of Joseph Gordon v. Registry of Motor Vehicles, Gordon challenged the Registry's requirement that he use an ignition interlock device. He based his challenge on the fact that the interlock requirement, which was triggered by two DUI convictions which pre-dated Melanie's Law by several years, violated his constitutional right to be free from "ex post facto" laws. The Massachusetts Appeals Court determined that holding a driver's license is a privilege and not a right. It further determined that Melanie's Law was constitutional and not an "ex post facto law."

The Registry can legally go back into your record for your entire lifetime to find old DUI convictions, to determine the length of a driver's OUI license suspension. It also can use those old OUI convictions to require any repeat OUI offender who is reinstating his or her license, as a result of OUI suspension, on or after January 1, 2006, to use the ignition interlock device during the term of any hardship license and for 2 years after getting a full license. These requirements have been judicially determined to be constitutional and enforceable.

If you have questions regarding how Melanie's Law applies to your particular situation, please contact me for a free consultation and review if your case. 

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Prominent Needham, Massachusetts attorney and Mass. DUI Defender Timothy M. Burke is the author of The Paradiso Files: Exposing Boston's Unknown Serial Killer. Burke, a former Suffolk County Homicide Prosecutor artfully tells of how Leonard "the Quahog" Paradiso was suspected to be a serial killer who operated undetected in the Boston area. Based on his knowledge and experience as a homicide prosecutor, Burke believe that Paradiso killed several young women including Joan Webster, who mysteriously disappeared in 1981.

The Paradiso Files chronicles Burke's investigation of "Lenny the Quahog" and describes how he and his partner, Massachusetts State Trooper Andy Palumbo doggedly pursued the suspected killer. Paradiso died in prison only 9 days after the book was published.

After leaving the Suffolk District Attorney's Office, Attorney Burke went into private practice and he now operates a very successful law office in Needham, Massachusetts. Attorney Burke has successfully prosecuted and defended numerous OUI cases throughout the Commonwealth. You can contact Attorney Burke by completing the contact form on this site. The Paradiso Files is available in hardcover, paperback, and electronic versions. Attorney Burke is currently working on his second book.

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To sustain a DUI conviction, the Massachusetts OUI Law requires that the crime be committed on a public roadway or one that is available to the public as invitees or licensees. Recently, in the case of Commonwealth v. Stoddard, the Massachusetts Appeals Court overturned a DUI conviction because the intoxicated operation did not occur on a public roadway. 

Brian Stoddard drove while he was intoxicated on the roadways of a privately-owed campground in Salisbury, Massachusetts. There was only one gated entrance to the campground and access was controlled by electronic key cards, which were issued to registered campers. Certain visitors were also given gate cards. 

In overturning Stoddard's OUI conviction, the Appeals Court announced the following rule: "[T]he essential question ... is whether the way is available for public use ... If the invitation or license is one that extends (or appears, from the character of the way, to extend) to the general public, the way is covered; if instead the license or invitation is privately extended to a limited class, the way is not covered." 

The Appeals Court further noted that the decision in this case may call into question the enforceability of the Massachusetts OUI Law in "gated communities," gated private resorts, or even some college campuses, where public access is restricted. 

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I am writing this post because of the high number of clients who have had their licenses suspended because they made an uninformed decision regarding the payment of a citation or pleading out to a criminal offense such as OUI, drug violations, driving on a suspended license, and operating to endanger. These motorists were unpleasantly surprised by sharp insurance premium increase and license suspensions as a result of their decisions.
 

Unbeknownst to most Massachusetts drivers, getting a speeding ticket or another surchargable moving violation can have unforeseen and severe consequences. Violations are reported to the Massachusetts Merit Rating Board, which maintains a database of speeding citations, traffic citations, and other motor vehicle related offenses such as OUI convictions. Courts also report drug offenses to the Mass. Merit Rating Board, whether they are motor vehicle related or not.
 

When a motorist pays a Massachusetts Uniform Citation (traffic ticket), he or she is admitting responsibility. This means that the Mass. RMV can count the violation against the motorist for insurance and license suspension or revocation purposes. Payment of a citation is an admission of “guilt” and it cuts off the right to appeal. It is, therefore, not possible to contest, challenge, or appeal a speeding ticket or other traffic citation once it is paid. Neither the Registry of Motor Vehicles nor the Massachusetts courts will accept these appeals.
 

To appeal a citation, you must check off “box 2” on the back of the citation and mail it to the Massachusetts Registry of Motor Vehicles using the envelope provided. The Mass. RMV will then notify the district court having jurisdiction over the location where the motor vehicle violation allegedly occurred. You will be notified by mail of the hearing date. In most cases, your hearing cannot be rescheduled and, in all cases, you must appear in person. Hiring a lawyer to represent you does not excuse you from personally appearing.
 

Consequences of a traffic violation can include: a 30 day suspension for getting 3 speeding tickets in any 12 month period, an indefinite suspension for getting 5 surchargable events within any 3 year period (this requires taking the NSC Driver Re-Training Class to avoid a suspension), 7 surchargable events within any 3 year period (this triggers an automatic 60 day suspension), or a 4 year Massachusetts Habitual Traffic Offender for getting 12 minor violations, certain major violations, or any combination thereof.
 

Additionally, convictions for DUI, driving on a suspended license, driving to endanger, and driving an uninsured motor vehicle will result in automatic license suspensions. These violations are among the 64 ways to lose your Massachusetts Drivers License.
 

It is a complete misconception and falsity that the Massachusetts Registry of Motor Vehicles is bound by anything that a court does with respect to the counting of prior convictions or sentencing. The Mass. RMV follows Massachusetts License Suspension Laws which dictate that certain convictions, guilty pleas, breathalyzer refusals, and alcohol program assignments automatically trigger certain license suspensions. No judge can overrule, override, or supersede these laws. Massachusetts courts and judges only have jurisdiction over breathalyzer refusal suspensions if the individual is found not guilty of OUI or the alcohol related charges are dismissed. In all over cases, excepting administrative appeals from Mass. RMV or Board of Appeal decisions, Massachusetts courts have no jurisdiction over license suspensions.
 

When deciding whether or not to appeal a citation or “plead out” to a criminal motor vehicle offense such as driving on a suspended license, it is critical to consider the consequences. You cannot depend on the police, court, judge, or prosecutor to inform you of these consequences. Many lawyers who do not understand the complex laws governing license suspensions also do not understand the consequences which a plea, conviction, or citation payment can trigger. The decision of whether or not to pay a citation or plea bargain a case should only be made after a thorough review of your criminal and driving record by a qualified attorney; anything short of this may result in an unpleasant surprise in the form of a substantial increase of your automobile insurance premium or, worse, a license suspension or revocation.
 

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In the case of Padilla v. Kentucky, the Supreme Court will decide whether a lawyer’s failure to inform his or her client about the collateral consequences of a guilty plea, such as automatic deportation, constitutes ineffective assistance of counsel which would warrant overturning the guilty plea.

The 6th Amendment to the U.S. Constitution requires that criminal defendants receive effective assistance of counsel. A violation of this constitutional standard warrants reversal of a conviction. In Padilla v. Kentucky, the defendant’s attorney never told him that he would be automatically deported if he piled guilty to felony drug charges. Padilla got his guilty pleas vacated on appeal, because his lawyer never informed him of the automatic deportation. The prosecution appealed further and obtained a ruling from the Kentucky Supreme Court which overturned the lower court’s decision. The Supreme Court heard oral arguments last month and it will decide the case in the near future.
 

The Court’s ruling may have important implications in Massachusetts OUI cases. Many times a lawyer may not inform the client about license suspensions which are triggered by a guilty plea. Some of these suspensions, which are automatically triggered by a guilty plea, can last a long time. Many criminal defense lawyers, and even some DUI lawyers, are not aware of the license suspensions which can result from guilty pleas. It is therefore critical to hire a lawyer who knows not only the criminal aspect of your case, but also what will happen to your license. Many people have been given wrong information from their lawyer and unpleasantly surprised by the Mass. RMV when they try to reinstate their licenses or get a hardship license. Depending on the court's decision, Padilla v. Kentucky may allow drivers in these situations to vacate their guilty pleas and avoid long license suspensions.
 

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If passed, Massachusetts House Bill 3336 which was filed on January 6, 2009, would create a new crime of felony reckless driving, which is also known as negligent operation, or driving to endanger. If such operation results in a collision with a person or otherwise causes serious injury, the driver would be punished by up to 5 years in state prison and a fine ranging from $1,000 to $10,000.

Additionally, a first offense conviction of this new crime would result in a 2 year license revocation and second conviction would trigger a 5 year license revocation.

Currently, the crime of operating to endanger is a misdemeanor. The proposed law would make it a felony. A public hearing on the bill was scheduled to be held last month at the Massachusetts Statehouse.

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Many Massachusetts license holders contact me after the Mass. RMV has informed them that they will need to use a certified breath alcohol ignition interlock device in any vehicle which the own, lease , or drive. This requirement must remain in place during any Massachusetts hardship license and for 2 years after the driver gets the restricted hours removed from his or her license. Not a week goes by where someone does not question whether, in their particular situation, the use of an ignition interlock device is really required.

In this post, I will explain the Registry's Ignition Interlock requirement.

Breath alcohol ignition interlock devices are lockout devices which prevent a vehicle from starting if the driver’s blood alcohol registers above .02. To insure that the driver did not have someone else blow into his or her device, the interlock device requires drivers to provide breath samples at random intervals while the vehicle is being driven.

Ignition interlock devices are required, by Melanie’s Law, to be used by anyone with 2 or more OUI convictions or alcohol program assignments on his or her record who is reinstating a license or coming off of a hardship license after January 1, 2006. In the vast majority of cases, if the Registry of Motor Vehicles states that a driver is interlock-required, there is no way to get around the requirement. Neither the Mass. RMV nor the Board of Appeal will “bend the law” or make exceptions. If you are legally required to have the interlock device, there is no way around it.

Both the Massachusetts Registry of Motor Vehicles and the Board of Appeal view the ignition interlock device as an effective tool which protects the public by physically prohibiting someone who has consumed alcohol from driving. Neither agency has any interest in excusing people from using what its proponents tout as a lifesaving device. In fact, there is legislation pending at the Massachusetts Statehouse which would toughen Melanie’s Law by requiring even first offenders to use the ignition interlock device. It is likely that this legislation will pass. 

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