Hardship License for OUI 3rd Denied By Appeals Court

In WILLIAM B. DIGREGORIO vs. REGISTRAR OF MOTOR VEHICLES 78 Mass. App. Ct. 775 (2011) the Registry of motor vehicles denied the issuance of a hardship license for an OUI 3rd offender. The case clarifies some language regarding time frames of suspensions and when they begin/end. Specifically that the registrar is prohibited from restoring the driving rights of a third time offender “until eight years after the date of conviction.” not from the date of notice.

The Appeals court in deciding stated “In a civil action challenging a decision of the board of appeal on motor vehicle liability policies and bonds (board), the plaintiff, who had been convicted three times of operating a motor vehicle while under the influence of intoxicating liquor, failed to demonstrate that the board erred in declining to issue him a hardship license, where there was a question whether the plaintiff actually requested a hardship license from the Registrar of Motor Vehicles, and where, in any event, the plaintiff had not pointed to any evidence in the record documenting the extent of the burdens he faced in having to hire a driver to get to work.

Discussion. 1. Length of the revocation. We begin by providing a quick road map to the applicable statutory provisions. Along with its neighboring sections, G. L. c. 90, § 24, governs the licensing consequences of driving while intoxicated. With certain exceptions not here applicable, § 24(1)(b) requires the registrar to revoke the driver’s license of anyone convicted of OUI in violation of § 24(1)(a)(1). This subsection does not itself specify how long the mandated revocation is to last. However, § 24(1)(c) serves to prohibit the registrar from restoring the driving privileges of the offender before a specified date. See Breslin v. Board of Appeal on Motor Vehicle Liability Policies & Bonds, 70 Mass. App. Ct. 131 , 134 (2007). That date is determined by the number of previous convictions that the offender has had for OUI or “a like offense” (regardless of whether such convictions are in “a court of the commonwealth or any other jurisdiction”). See G. L. c. 90, § 24(1)(c), as amended through St. 2006, c. 428, § 13. Fifth-time offenders lose their privileges permanently. See G. L. c. 90, § 24(1)(c)(3 3/4).

Because DiGregorio’s most recent OUI conviction was his third such offense, the applicable provision here is § 24(1)(c)(3). Under the express terms of that subsection, the registrar is prohibited from restoring the driving rights of a third time offender “until eight years after the date of conviction.” Notwithstanding this language, the defendants argue that the registrar’s hands remain tied until eight years after she learned of the third conviction (which occurred here more than three years after the conviction), at least where the conviction that triggers the statutory provision occurs outside Massachusetts.

The defendants have not pointed to any ambiguity in the language of § 24(1)(c)(3); indeed, they pay virtually no attention to that language. Instead, they focus on § 22(c), which states that upon receiving official notice of out-of-State violations, “the registrar shall give the same effect to said conviction for the purposes of said suspension, revocation, limitation or reinstatement of the right to operate a motor vehicle, as if said violation had occurred in the commonwealth.” G. L. c. 90, § 22(c), as amended by St. 2006, c. 134, § 1. But DiGregorio does not question the registrar’s authority to rely on the 2000 and 2004 Connecticut convictions once she received official notice of them or to treat these out-of-State convictions as if they had occurred in the Commonwealth. Section 22(c) simply does not speak to the question at hand: how long a suspension based on those convictions must last, regardless of whether they occurred in or out of State. That issue is addressed by § 24(1)(c)(3), not § 22.

Even if we could deviate from the unambiguous language that the Legislature has enacted, the defendants have not presented any compelling reason to do so. Their principal argument is that relying on the date of conviction for out-of-State violations would create serious adverse policy consequences, because the registrar retains no control over the timeliness of the information that other States enter into the NDR system. Specifically, they suggest that relying on the “date of conviction” will allow hazardous drivers back on the road sooner or allow them to escape due punishment. This argument ignores the maxim that “[w]here . . . the language of the statute is clear, it is the function of the judiciary to apply it, not amend it.” Bulger v. Contributory Retirement Appeal Bd., 447 Mass. 651 , 661 (2006), quoting from Commissioner of Rev. v. Cargill, Inc., 429 Mass. 79 , 82 (1999). We also note, however, that the record before us reveals that the state of interstate coordination is hardly as dire as the registrar (or the dissent) suggests. For example, even though Connecticut did not post formal notice of the April 18, 2000, OUI conviction in the NDR database until 2007, the registrar’s records indicate that Connecticut posted notice of its action suspending DiGregorio’s driving privileges based on that conviction on May 24, 2000 (on, or directly after, the date that the suspension occurred). This information has thus been accessible to the registrar since that time. When the registrar checked the NDR records in January of 2004, she learned of the 2000 suspension and immediately suspended DiGregorio’s license effective February 15, 2004, on this basis. As a result, DiGregorio has been without his driving privileges continuously since February of 2004, and — absent the issuance of a hardship license — he is automatically prohibited from regaining them until October of 2012, a period of more than eight years.

In light of the unambiguous language of the statute, we conclude that the registrar is prohibited from restoring DiGregorio’s license only until October 4, 2012, the eighth anniversary of his third OUI conviction. Our holding is narrow. We need not, and do not, decide the extent of the registrar’s discretion to refuse to restore DiGregorio’s license after October 4, 2012, in the event the registrar at that time considers him a menace on the road. Such questions are for another day.

2. Denial of hardship license. DiGregorio also seeks to challenge the board’s declining to issue him a hardship license. The registrar urges us not to reach the issue on the ground that DiGregorio’s request for a hardship license was premature even under his interpretation of the statute. Whether his request was premature cannot be definitively resolved on the current record. For an additional reason that neither side has addressed, there is substantial doubt whether DiGregorio’s request for a hardship license was ever properly before the board. Applications for a hardship license are to be filed with the registrar, and the applicant “shall be granted a hearing before the registrar.” G. L. c. 90, § 24(1)(c). As with other licensing decisions of the registrar, one denied a hardship license can appeal that decision to the board. G. L. c. 90, § 28. However, “[t]he board has no independent statutory power to issue a license.” Breslin v. Bd. of Appeal on Motor Vehicle Liability Policies & Bonds, 70 Mass. App. Ct. at 135. There is no evidence before us that DiGregorio ever actually requested a hardship license from the registrar. This may explain why the board never formally ruled on his hardship request.
In any event, DiGregorio has not shown that the board erred in denying him hardship relief. It is certainly true that having to hire a driver to get to work could amount to more than an “inconvenience” (the board found he was “inconvenienced” but did not suffer a hardship), especially where, as here, the board acknowledged that the applicant faced financial difficulties. However, DiGregorio has not pointed to any evidence in the record documenting the extent of the burdens he faced, such as, for example, what he had to spend on his driver and whether he could afford this. His arguments that the board erred in denying him a hardship license therefore would fail on the record here even if his request were properly before the board.

Conclusion. For the reasons set forth above, we conclude that the judge erred in affirming the decision of the board insofar as the board ruled that DiGregorio’s license revocation must by statute extend to January 8, 2016, rather than to October 4, 2012, the eighth anniversary of his third OUI conviction. Accordingly, the judgment is vacated, and a new judgment shall enter directing the board to revise its decision consistent with this opinion to order the registrar of motor vehicles to correct the termination date for the mandatory revocation of the plaintiff’s license to October 4, 2012.
So ordered.”

Attorney Ronald A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to RSellon@PoliceLegalPromotions.com
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