Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

North Of Boston, A Convicted Drunk Driver Believes She Has Gotten A Gift…But Turns Out To Need A Defense Attorney To Go Along With It

North of Boston, Evelyn C., 74, (hereinafter the “Defendant”) thought she had reason to celebrate. Instead, she found that the gift she thought received from the Registry of Motor Vehicles (RMV) necessitated a little something extra…namely, a criminal defense lawyer
You see, like many of us, she was driving around the morning of December 17th. Unlike many of us, however, she was not supposed to be behind the wheel at all until 2015.

That’s what a Salem District Court judge had told her last August when he sentenced her after her third operating under the influence conviction.

She knew it and the court knew it…but, the RMV…not so much.

Just last month, in fact, they issued a brand new shiny driver’s license for the Defendant.

An isolated occurrence?

Again, not so much.

You see, her case is one of what the state auditor last summer estimated as thousands of drivers whose licenses were never yanked by the RMV despite court orders following drunken driving and other motor vehicle convictions.

No one is really certain of the number because so many cases are missing from the Registry database, according to an RMV spokeswoman.

Comforting.

Last month, court clerk magistrates around the state got a memo with the subject line “High Priority – Public Safety” and a request from the Trial Court for data on thousands of drunken-driving cases between 2003 and 2007.

At Salem District Court, clerks were asked to go through more than 140 cases from that time period, to determine whether notices were sent by the court to the RMV.

The Salem court has found that in most of the case files in question, there was evidence that the notices were sent, including fax transmission receipts. In the other 25 percent, it was not clear whether those notices were sent from the court.

The Defendant, a seemingly lucky winner of the “Falling Through The Criminal Justice Cracks” award, has had a history of driving offenses.

In September, 2005, she was arrested on Route 128 in Danvers, where police found her driving 30 miles an hour. When questioned, she told the state trooper she was heading home after a girls’ night out.

A few girls’ nights later, in August, 2007, she pleaded guilty and was ordered to serve 150 days in jail. The judge also suspended her driver’s license for eight years.

Last month, the Defendant went to the RMV to apply for a Massachusetts identification card, a photo ID. Instead, she got a call telling her to come by and pick up her new license according to her lawyer.

State law prohibits someone from having both a state photo ID and a driver’s license. It appears that when the Registry employee processed her application for a photo ID, the employee saw that her license was still valid and issued her a new one.

Merry Christmas!

According to her lawyer, the Defendant assumed that meant she could start driving again.

But, following the “Better Late Than Never” Rule, on November 18th, more than a year after her sentencing Salem District Court sent the Registry a notice of her conviction. On November 24th, the Registry suspended her license for eight years.

The Defendant should have received a letter from the Registry informing her of the suspension. However, it’s not clear from the case file whether a notification was originally sent in August 2007.

And so it was that, last week, shortly before 9 a.m., Manchester police arrested the Defendant for driving after license suspension for drunken driving, an offense that carries a minimum mandatory 60 days in jail.

She was released her on personal recognizance.

The situation has penalized otherwise law-abiding drivers, as well. Some drivers who plead guilty to traffic offenses or to drunken driving have complied with the judge’s order, then had their license reinstated, only to get a letter from the Registry telling them that their suspension was now going to go into effect, said lawyers who have handled drunken-driving cases.

In a report issued in July, state auditor Joe DeNucci estimated that in 2005 and 2006, between 7,500 and 9,000 drivers whose licenses were ordered suspended by a judge were allowed to keep their licenses for two to four years before their paperwork was processed.

A representative claims that part of the blame lies with the incompatible computer systems set up in the courts and the Registry. Rather than sending the information electronically, courts must send paper copies of the notices to the Registry, where an employee must enter the data manually into the computer system.

Samuel’s take:

It is hard to imagine that in the end-days of 2008, as we perfect wifi and GPS technology and “checking out” Mars is old news, that the system is being thwarted by incompatible computers who will not communicate with each other. One would think that someone would at least tell them about email or something…!

But then, I am not here to advise them; I am here to entertain and educate you. So, let’s focus on the Defendant’s part in all this.

I trust that it will not shock anybody that it is she who is in trouble here, not the RMV and not the court.

She had been in court when her right to drive was taken away. It is her responsibility to know and to remember that. Any defense on her part that she figured the judge woke up one morning and decided he had made a terrible mistake and so changed his mind and did not take away her license is not likely to go too far.

Further, she is not a complete novice of the criminal justice system which, of course, will work against her.

“But Sam”, you say, perhaps influenced by the holiday season. “C’mon…that does not seem fair. It was the system that messed up. You know, it is confusing out there, trying to keep all the agencies straight. After all, the RMV was the one who issued the license. She did not ask for it”.

This is all true. But it does not help. The RMV and the court are two different entities. Many are the cases where the court takes no action regarding a license, but leaves it up to the RMV to decide what it is going to do. In this case, the judge ordered that she not drive.

Let’s make it simpler. Let’s say that the RMV sent her a letter saying, “Enclosed you will find your new driver’s license. We know what that nasty judge said and we think he was too tough on you. Go ahead. Drive. Now. Please.” If she had driven, she would have disobeyed the court’s order and would have been driving without the right to drive.

In other words, while the RMV may have made a mistake sending her the license (which, it would seem was actually not the RMV’s error in this case, but the court’s delay), she had been, in effect, ordered by the judge not to accept it.

Again, you interrupt. “That’s not right, Sam! How are we to know all these competing rules? We, like the Defendant, don’t know all the intricacies involved. How are we supposed to know that if the RMV tells you to drive when the court told you not to drive that you cannot drive?”

Good question. Simple answer. Contact an experienced criminal defense attorney to advise you. Remember my previous blogs about ignorance of the law not being a defense? Well, it is applicable here.

I agree that the system should be simplified in many ways. However, it is what it is for now and any resulting confusion, while it might gain you some sympathy, is not a defense. Further, the courts tend to take a skeptical view of claims of ignorance, especially when one is a veteran of the system.

In our society today, it is quite fashionable to point the finger and blame someone else. Here, you see the Defendant doing it, the RMV doing it and the court doing it.

But it is still the Defendant’s responsibility when she is in court, ordered not to drive and then drives anyway without the court, in writing, allowing her to do so.

Sorry about that.

Samuel Goldberg is the senior criminal defense attorney at the firm of Altman & Altman, LLP. A former prosecutor in New York, he has worked as a Boston defense attorney over 18 years. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call 617-492 3000

The full article of this story can be found at http://www.salemnews.com/punews/local_story_352225405.html

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