Massachusetts Driving Laws

Students and Crimes - even driving can impact your record!

If you are the parent of a high school or college student who gets charged with a crime (or if you are a high school or college student)  you are probably worried about the effects will have on your future!

A criminal conviction can have an effect on your future!  It can effect your future job opportunities and even financial aid for college or post graduate education. 

There are several possible outcomes of a criminal charge, some will have a permanent effect and some will not.  Your case can be:

1. You can not be arraigned and it will never show up on your record.
2.  The case can be dismissed, and you can answer honestly that you were never convicted of a crime.
3. You can be given Pre-Trial Probation, and you can answer honestly that you were never convicted of a crime.
4.  You can be given a disposition of a continuance without a finding (a "CWOF"), where you can answer honestly that you have never been convicted of a crime.   (Please note that some applications will ask if you have received a CWOF as a result of a criminal charge.)
5. You can be found guilty (either via trial or via plea), and you will have to answer that you have been convicted of a crime.
6.  You can have a trial and be found not guilty.

One of the most important things to do if your children (or you) have been charged with a crime is to hire an attorney at the BEGINNING!  An experienced attorney can help you navigate the system and get the best possible outcome for your child.

An attorney can help you save your child's record! 

Attorney Jessica Foley has experience in both Juvenile and Adult court representing high school students, college students and post graduate students.  Contact her at jessica@jessicafoleylaw.com or call her at 617-934-0272. 

Breath Test at Police Station do not necessarily reflect BAC when driving.

You get pulled over, you take some field sobriety tests and consent to a breath test.  (NOTE: in Massachusetts you are not required to take a breathalyzer or any field sobriety tests.)  You take the Breathalyzer and you blow a .10.    You had a few drinks, and your last drink was right before you left the bar.  At the time you get pulled over, your blood alcohol content (BAC) could actually be lower than it was when you were driving.

The funny (not in a laugh out loud sort of way, but in an ironic sort of way) is that it is totally legal to have a blood alcohol of .08% when you are standing in the police station blowing into a breathalyzer.   Just because the machine says you have a .10 or .11 does not mean that an hour or so earlier, when you got pulled over, that you had a blood alcohol of .10 or .11, in fact it is possible that your BAC when you were driving was in fact below the legal 'per se' limit of .08.

Truth be told, if you are taking a breathalyzer at a police station, your blood alcohol when you were driving could actually have been higher then when you are standing at the station blowing into the tube.   When you are drinking your body is absorbing and eliminating alcohol simultaneous, and therefore your blood alcohol is always changing. 

If you tried to play it safe and wait a few hours after your last drink, and you consent to a blood alcohol test, your BAC when you were driving and got stopped was higher, and this argument won't help.  (There are other arguments and evidence that can be used to challenge the legitimacy of a breathalyzer so if you took one, it does not mean you will automatically be convicted). 

If you had a couple of drinks with friends and finished your last one just as you were leaving and you got pulled over on the way home (and felt relatively fine), and you take a breath test, there is a possibility that your BAC was higher at the police station than it was when you were operating your car.

If you took a breathalyzer you should contact an experienced defense attorney like me, Jessica A. Foley, you can email me at jessica@jessicafoleylaw.com or call me at 617-934-0272.

Junior Operators and Speeding.

A question that has come up a lot in my practice recently is whether or not a Junior Operator's license will be suspended for a moving violation that is not speeding.  

The answer, after a lot of research, basically ruling out all the alternatives is that the purpose of the new Junior Operator Statute is to prevent teens from speeding.   Other moving violations, such as running a stop sign, expired inspection sticker, or failure to yield do not carry with them an immediate suspension.  

That being said, moving violations add up quickly, and should always be appealed.  

For more information on Junior Operator Penalties in Massachusetts, please see: Junior Operators

If you are a junior operator, or the parent or guardian of a junior operator, and you get a moving violation, you should consult with an attorney to save your license (even if you think you can't win) and your insurance surcharge points.  Call Jessica Foley at 617-934-0272 or email me at jessica@jessicafoleylaw.com.  I'm an experienced driving lawyer and can help you win your case!

Elderly Drivers are in the News Again!

It is happening once again, a car accident, and an injury involving an elderly driver.  Accidents happen every day but when they involve someone who is considered elderly (and it is a slow news day) it makes the news! The Boston Herald, reports that an Elderly Driver slammed into a lot attendant at the Brookline, Massachusetts Trader Joe's.  (a photo diary of the incident by Onscene Photo Diary is available here)

Stories like this often get people thinking about their own driving, or the driving of an elderly loved one. There is definitely a complicated emotional divide once this worry occurs, that elderly drivers are concerned about is their continued independence and safety and loved ones are concerned about safety and the independence and well-being of their loved ones.

If you are concerned you can have your mom or dad or other loved one evaluated by their physician (of course mom or dad has to AGREE) and many area senior centers offer driver retraining for elderly drivers.  For a list of resources check out the Registry's website.

Also, whenever something like this happens and is strewn about the media there becomes an increased backlash against elderly drivers, many of whom are perfectly fine and safe drivers.  If this happens, you should consult with an attorney to help navigate the Judical System and the Registry of Motor Vehicles and help them get their license back.

A lawyer can assist you in navigating the Registry of  Motor Vehicles.  If you would like to set up a consultation call me at 617-3934-0272 or email me.

Speeding in Massachusetts

What's the big deal?  "It's just a speeding ticket."  "I would rather just pay the fine." Have you heard these statements, said them yourself?

Section 17 of Chapter 90 of the General Laws of Massachusetts defines speed limits as:   No person operating a motor vehicle on any way shall run it at a rate of speed greater than is reasonable and proper, having regard to traffic and the use of the way and the safety of the public. 

It is the consequences of Speed Limits, that lead many to loss of Safe Driver Points, heavy fines, and license suspensions.  Junior Operators fare the worst in that paying ONE speeding fine results in a 90 day license suspension.  This makes it difficult if not impossible for teenagers to drive themselves to school, sporting events and jobs! A license suspension usually means loss of income.  An income loss does not mix with increased insurance premiums.  You will bring home less income and have to pay more to operate your motor vehicle!

If you are cited for speeding and/or other traffic violations, time is of the essence, you must appeal your ticket.  You increase your chances of success if you have a lawyer who knows the system represent you at all phases of the appeal!  Our phones lines our open 24 hours a day, and we represent individuals for all court hearings, Registry Hearings, and Registry of Motor Vehicle Board of Appeal Hearings.  We fight for you!  Email or call 617-934-0272 to set up an appointment to fight your ticket and save you money!

Junior Operators

Massachusetts has recently enhanced the penalties for speeding and for Junior Operators receiving any motor vehicle citation.

JUNIOR OPERATORS FACE A LICENSE SUSPENSION FOR EVERY SPEEDING TICKET.

EVERY parent and junior operator should be aware of the license loss they face under Massachusetts drunk driving laws AND for other moving violations including speeding, operating with other passengers in the motor vehicle, or operating during night restriction (12 a.m. to 5 a.m.). EVERY junior operator has a right to appeal any citation they receive and they should appeal and hire a lawyer familiar with these appeals.

DON’T ARGUE WITH THE POLICE OFFICER. DON’T RELY ON INTERNET QUICK FIXES. IN MASSACHUSETTS CLERK MAGISTRATES OF EACH COURT HEAR TICKET APPEALS AND THE RIGHT ATTORNEY CAN MAKE THE DIFFERENCE FOR YOU AND YOUR FAMILY!

The tables below should assist you and every teen should be aware of these penalties BEFORE they get pulled over by the police. Knowledge and prevention beats hiring a lawyer every day.

Junior Operator speeding (in addition to fines):

• 1st offense: 90 day license suspension; plus $500 to reinstate license; plus completion of registry program that encourages attitudinal changes; plus completion of the state courts against road rage program; plus $50 reinstatement surcharge; plus must retake and successfully complete driving test

• 2nd offense: 1 year suspension; plus $500 to reinstate; plus completion of registry program that encourages attitudinal changes; plus completion of the state courts against road rage program; plus $50 reinstatement surcharge; plus must retake and successfully complete driving test

Permit Holder speeding (in addition to fines):

• 1st offense: 90 day license suspension; plus $500 to reinstate license; plus completion of registry program that encourages attitudinal changes; plus completion of the state courts against road rage program; plus $50 reinstatement surcharge; plus must retake and successfully complete driving test

• 2nd offense: 1 year suspension; plus $500 to reinstate; plus completion of registry program that encourages attitudinal changes; plus completion of the state courts against road rage program; plus $50 reinstatement surcharge; plus must retake and successfully complete driving test

Driving with other passengers in first six months :

• 1st offense: $35 fine; plus 60 day license suspension

• 2nd offense: $35 - $75 fine; plus 180 day suspension; plus completion of registry program that encourages attitudinal changes

• 3rd offense: $75 - $150 fine; plus 1 year suspension; plus completion of registry program that encourages attitudinal changes

Junior Operator Driving between midnight and 5 am :

• 1st offense: $100 - $1,000 fine; plus 60 day license suspension

• 2nd offense: $100 - $1,000 fine; plus 180 day license suspension; plus completion of registry program that encourages attitudinal changes

• 3rd offense: $100 - $1,000 fine; plus 1 year license suspension; plus completion of registry program that encourages attitudinal changes

Permit Holder driving without an adult or between midnight and 5 am:

• 1st offense: $100 - $1,000 fine; plus 60 day learner’s permit suspension

• 2nd offense: $100 - $1,000 fine; plus 180 day learner’s permit suspension; plus completion of registry program that encourages attitudinal changes

• 3rd offense: $100 - $1,000 fine; plus 1 year learner’s permit suspension; plus completion of registry program that encourages attitudinal changes

Junior Operator drag racing:

• 1st offense: $250; plus 1 year license suspension; plus $500 to reinstate license; plus completion of the state courts against road rage program

• 2nd offense: $500; plus 3 years license suspension; plus $1000 to reinstate; plus completion of the state courts against road rage program

Junior Operator operating recklessly or negligently (in addition to fines):

• 1st offense: 180 day license suspension

• 2nd offense: 1 year license suspension, if it occurs within 3 year period of first offense.

For more information email me at jessica@jessicafoleylaw.com or call 617-934-0272.

Habitual Traffic Offender - Hardship License

Have you received a notice that your license is suspended because you are a Habitual Traffic Offender (or "HTO")?   You may not have been paying attention to your driving record, or even been unaware of this possible license revocation.  The potential for being classified as an HTO and having your licenses suspended for FOUR or EIGHT years, is one of the reasons it is so important to fight EVERY speeding ticket, and EVERY surcharge!  But what happens if you haven't fought your tickets?  You will be classified as an HTO if you have three major moving violations or a combination of twelve major and minor moving violations within three years.

A Hardship License is only granted to Habitual Traffic Offenders at the discretion of the Massachusetts Registry of Motor Vehicles.  In order to qualify for a Hardship License after having been found to be a Habitual Traffic Offender you must meet certain criteria.  Once you meet this criteria you can have a hearing at the Registry of Motor Vehicles. You have the right to have a lawyer represent you at your hearing. 

HABITUAL TRAFFIC OFFENDER CRITERIA:

• NO evidence of operation since the effective date of the revocation.
• You must serve ONE year of the revocation.
• All other revocation periods have been COMPLETED (the only exception if you are applying for a Hardship License after multiple HTO revocations and you have not had any NEW incidents since the original revocation date).
• You must complete a National Safety Council Driver Retraining Course.
• You must have documentation of a legitimate hardship. 
• You will be required to have an Ignition Interlock Device installed if you have completed an OUI revocation while the HTO revocation has been in effect.
• You may be required to have an Ignition Interlock Device installed if you have two or more OUI's on your driving record.
• You may be required to have an Ignition Interlock Device if your license was never reinstated after a revocation for OUI, and you have two or more OUI's on your record.

You have the right to have an attorney at all Registry Hearings and all hearings before the Registry's Board of Appeals.  You need an attorney that knows how to handle license suspensions and revocations, and hearings before the Registry.  My firm has the experience to successfully  handle your hearing, call 617-934-0272 or email me at jessica@jessicafoleylaw.com to schedule a consultation.

But I will automatically lose my license if I refuse!

This is a common statement regarding the current state of the law regarding breath test (or other chemical test) refusal in Massachusetts.  It is true; if you don't take a breathalyzer your license WILL be suspended.  The length of the suspension depends on your age and whether or not you have previously been convicted of a operating under the influence. 

The most important thing to remember about breath tests is that if they are administered properly, they can be used against you as evidence by the Prosecutor and the Police. 

Currently, in Massachusetts, if you are under 21 and your blood alcohol comes back at a .02 or above,  you are considered to be intoxicated, and all the Prosecutor has to do is prove that you were operating a motor vehicle, on a public way, and under the influence of intoxicating liquor.  It doesn't matter if you have a high tolerance for alcohol or that you feel fine...all that matters is the number. If you are over 21 and your blood alcohol comes back at .08 or above you are considered to be intoxicated.  A properly administered breath test significantly increases your chances of being convicted of OUI.

Another thing to think about, is that if you have been drinking, it is likely that your judgment regarding how well you are going to perform on the breathalyzer, might be impaired.

You have the right to refuse a breath test!  It is one less thing that the Police and Prosecutor can use against you at trial!  If you have been charged with OUI please call me at 617-934-0272 or email me to set up a consultation!   

What happens at a Clerk's Hearing for a Speeding Ticket?

The time has come, you have gotten a speeding ticket (or a citation for some other civil moving violation), you mailed in the ticket, you got a notice for the date, and now it's game time.

Who is going to be there?

• Clerk Magistrate
• A Police Officer
• you (and your lawyer if you hire one to represent you)
• Any other witnesses

Is the officer who issued you the citation going to be there?  No, probably not.  All that is required under Massachusetts Law is that a representative from the police department be present.  The officer who gave you the ticket does not need to appear.

The officer will only go by the information that he received from his colleague who pulled you over and that is all he or she needs. 

The officer makes his or her case.

The Clerk Magistrate decides what to do about the citation.  Sometimes they will not issue the citation, sometimes they will reduce the fine and issue the citation, and sometimes they will issue the citation.

Does hiring an attorney to represent you help?

Yes, often it does (although nothing in is a guarantee) An attorney can advocate on your behalf.  Hiring an attorney to represent you at a Clerk's Hearing, is usually cheaper in the long run.  If the citation issues you will have surcharge points added to your driving record, and your insurance will increase 5% for each point!  This can get expensive.  (See Automobile Insurance Surcharges)

If you are not satisfied with the result of the Clerk's Hearing, you can appeal to a Judge.  At this hearing it is required that the police officer who issued the citation appear and give testimony.

For more information on Automobile Insurance Surcharges see:

Automobile Insurance Surcharges

Safe Driver Insurance Plan

What happens at arraignment?

Arraignment is when you are officially charged with a crime in front of judge. 

You get to arraignment one of four ways.  The first way is a little less pleasant.

1. Worse case scenario - You are arrested and brought to court either the same day or the next day.  Here are a few scenarios where this can play out:

• You get arrested sometime early in the morning, are booked at the police station and brought to court.
• You get arrested at night, are booked at the police station and are brought to court when it opens in the morning.
• You get arrested on Friday after 3 p.m., are booked, are held in jail over the weekend (hope it is not a long weekend) and are brought to court when it opens on Monday or Tuesday morning.

2. You get arrested, are brought to the police station and get bailed out of the police station on the night (or at the jail if you are being held over the weekend) and are allowed to appear in court the next time that court is in session (the next morning or first thing during the week).

The fee for the bail clerk is 40.00.  You will also have to pay any additional bail money that the clerk (who comes to set bail) deems appropriate.  If you are lucky, it will only cost you 40.00 to go home and take a shower, sleep and change before court.

3. You get arrested and are brought to the police station.  You get a summons to appear at court for a clerk's hearing.  The police department will present evidence to the Clerk Magistrate that probable cause exists to charge you with a crime.  If probable cause is found, you will be summonsed to arraignment.

4. You get a summons in the mail to come to court on a certain day for an arraignment.  (If this happens you should contact a lawyer as soon as possible to determine whether or not the complaint was validly issued.)

No matter how you get to arraignment, this is generally what happens:

• You will dress as though you are going to an important business meeting or church.
• You will arrive at court and check in with the probation department.
• You will find out (either via a posted list or asking in the clerk's office or from your lawyer) which courtroom to go to.
• You will go and sit quietly in the courtroom until the clerk calls your name.
• After the clerk reads the charges, you will answer 'not guilty', you will either be assigned a court appointed attorney (if you qualify) or you will be told that you should hire your own attorney - or be told you can represent yourself.
• You will get a date from the clerk to appear for pre-trial conference.

If you aren't going to qualify for a lawyer you can hire you own.  You should hire an attorney who is experienced in criminal matters.  If you have been charged with a crime, drunk driving, operating to endanger or another offense call me at 617-934-0272 or email me to set up a consultation.