Law Changes: Operating After Suspension No Longer Arrestable

Discussion in 'Patrol' started by Pac*Man, Jul 1, 2009.

  1. Simon

    Simon Guest

    Aggress that person until he or she attempts to assault us. hahahahaha.

    I have a better and more appropriate answer but its not for the media to read on here........... ;)
  2. j809

    j809 Subscribing Member

    What if you get someone with a suspended license. You charge him with 90-23 and 90-10 since he is operating unlicensed due to his suspension and still have the right of arrest.
  3. NEPS

    NEPS MassCops Member

    Hey, I've got the appropriate advanced degree for figuring out law, and I'm still scratching my head.

    First, John Scheft thinks that the new law makes "first offense" operating after suspension/revocation of license non-arrestable because it is a civil infraction. He says he is basing his judgment in part on a June 30 memo from the chief justice of the district court which I have not yet seen. I respectfully disagree.

    GL 90-21 has not changed. As quoted above, it says that a person may be arrested for operating with a suspended/revoked license. Section 21 does not even refer to section 23, where the offense of OAS is set forth.

    The revised section 23 just says that if a person has not previously been found guilty/delinquent of or admitted to sufficient facts to the offense of OAS, then the offense is punishable by a fine of no more than $500. Nothing in the revised 90-23 says that the offense is now civil only. (In fact, the statute already sets forth the crime of 2nd offense OAS which requires a guilty finding for a previous OAS. So now will there be a 2nd 2nd offense?) Also, this new fine-only penalty does not apply to OAS for an OUI.

    If the right of arrest is revoked, it would have to be owing to GL 90C-1 which defines civil infractions as follows:

    "Civil Motor Vehicle Infraction'', an automobile law violation for which the maximum penalty does not provide for imprisonment, excepting: (a) operation of a motor vehicle in violation of the first paragraph of section ten of chapter ninety; (b) a violation of section twenty-five of chapter ninety; and (c) any automobile law violation committed by a juvenile under the age of seventeen who does not hold a valid operators license.

    But the maximum penalty for OAS remains imprisonment. Only under certain circumstances is the offense of OAS subject to a penalty of fine alone. I view this as a sentencing matter, not as the difference in kind that stands between civil motor vehicle infraction and criminal offense. I find some support in this view because the things that an officer would have to look for to determine whether to issue a CMVI or make an arrest are things that may only be determined by examining a combination of BOP and drivers history so as to find out whether there are previous convictions, CWOFs, delinquency findings, or a suspension owing to some sort of OUI violation conviction or CWOF. These are matters far easier to determine at a court date rather than over the radio at 3 AM.

    But we will see.

    In the meantime, a person whose license is suspended or revoked is not licensed to operate a MV. If an arrest is required, I suggest charging 90-10 along with 90-23.

    Also, disorderly/disturbing the peace remain arrestable. A first conviction is punishable by fine only. The senate version, which would have made first offenses civil and explicitly not arrestable, was not the version that passed into law.
  4. OfficerObie59

    OfficerObie59 Public Trough Feeder

    I believe that may have been changed also.

    (Again, the issue is that I can only find the original senate text and whether those amendments made it through joint committee. If they were altered prior to the committee, as Timilty did to the disorderly amendment, it's all f*cked up. Trying my best with the info at hand. Committee results: http://www.mass.gov/legis/FY10Joint11A.pdf , Original text: http://www.mass.gov/legis/10budget/senate/fy10_outsides.htm)
    What circumstances? Like 1st vs. 2nd offense? I would say that they are per se different offenses and different crimes. That's why one has always had to note a subsequent OAS offense on the citation, no?

    We deal with that distincition frequently in the realm of OUI's, such as in the distinction between a misdemeanor OUI 2, and a felonious OUI 3. I think this situation is relatively analogous, just that instead of distinguishing between felonies and misdemeanors, it's misdemeanor and civil offense. Likewise, the maximum penalty for an OUI 1 is HOC time, which in turn changes the degree offense.

    While I conceed OUI is an imperfect example because of the ROA in the past on PC for it at the misdemeanor level, the way our archaic laws work, penalties often trigger the degree of action we can take, often via other statutes.
    Great point.

    However, are you unlicensed if that license is suspended? I don't know that you are. You still have a license, however, it along with your right to operate has been suspened, not necessarily taken away for ever as if you never had it to begin with. Think about the use of the word in other usages: If you were to be suspended from your job, are you not still employed? If usage of your bank account is temporarily suspended, do you no longer have a bank account?

    I know this is debating semantics, but that's what this is all about.
  5. NEPS

    NEPS MassCops Member

  6. OfficerObie59

    OfficerObie59 Public Trough Feeder

    Beautiful...thank you. Been looking everywhere for that...
  7. Kem25

    Kem25 MassCops Member

    What about taking the plates when the person has suspended license and the vehicle is registered to him? I am not doing that anymore for fear the person will file larceny charges against me and probably get the complaint issued! Lots of issues here that are going to need to be addressed.
  8. MetrowestPD

    MetrowestPD MassCops Member

    You can have a right of arrest with only a monetary fine as a penalty. How many towns have open container bylaws with a $300-$500 fine with a right of arrest. This argument won't be over until an appellate court decides the case, the problem is it will be a case where a good mv stop leads to an arrest for OAS, which then leads to a good felony charge as described in the previous posts.
  9. lpwpd722

    lpwpd722 Maddy B's grammy

    I think that motor vehicle registration plates still belong to the State and not the owner of the vehicle. I'm probably wrong, but that's what I've heard.
  10. OfficerObie59

    OfficerObie59 Public Trough Feeder

    There are arrestable MGL's that carry only a fine.

    Example: Minor in Possession/Transporting is just a $50 fine for the first offense and $150 fine for subsequent.

    This will probably be the next statute out genius legislators to change to a civil offense.
  11. Gil

    Gil Administrator Staff Member

    Special Legal Update Bulletin
    Date: July 1, 2009

    Re: Operating After Suspension and Operating Uninsured are now CMVIs.

    1st offense Disorderly and Disturbing the Peace draw a fine only.

    In an effort to raise money for the Commonwealth, the Governor added some surprising provisions to his latest budget that have important ramifications for the working street officer.

    Operating After Suspension. A first offense of Operating After Suspension (OAS), G.L. c. 90, § 23, has now been transformed into a civil motor vehicle infraction (CMVI) that draws an assessment of $500. Thus, police officers no longer have a right of arrest pursuant G.L. c. 90, § 21 for this offense.

    Officers must issue a $500 citation and, if circumstances warrant, tow the motorist’s vehicle. This change does not affect the criminal consequences and right of arrest for OAS if it is (1) related to any OUI issue, or (2) a subsequent violation of any kind.

    The information presented here was derived from a memorandum issued by Lynda Connolly, Chief Administrative Justice of the District Court, on June 30, 2009. There were other provisions of the Governor’s budget that affected the fees charged by the Trial Court. Of interest to officers, the filing fee for a citizen to appeal a motor vehicle hearing to a judge was increased to $50.

    Many officers have questioned the wisdom of allowing an arrest for operating unlicensed, while discarding that same authority for an operator who has actually had their license suspended. However, leaving aside the merits of this new development, G.L. c. 90, § 21 explicitly states: “Any arrest made pursuant to this paragraph shall be deemed an arrest for a criminal offense . . . and not for any civil motor vehicle infraction arising out of the same incident.” This language effectively rebuts any hope that officers have of still making an arrest for OAS in presence. Section 21 may be amended in the future but, for now, officers are advised not to arrest for a first offense of OAS, unless it is related to an OUI situation. Also see G.L. c. 90C, §



    Operating While Uninsured.
    A first offense of Operating a Motor Vehicle without Insurance, G.L. c. 90, § 34J, has also been transformed into a CMVI that draws an assessment of $500. For an uninsured motorist, officers should simply write a citation for $500 and tow the vehicle (since a vehicle without insurance may not be operated or even parked on a public or private way within the Commonwealth). Similar to OAS, Operating without Insurance is still considered a criminal offense for subsequent violators. In such a case, include the violation on a citation as a criminal complaint application.




    Disorderly Conduct & Disturbing the Peace. It is no longer possible to receive a sentence of incarceration for the first offense of either Disorderly Conduct or Disturbing the Peace, which are both found in G.L. c. 272, § 53. Instead, the maximum penalty is a $150 fine. Officers still retain their right of warrantless arrest – pursuant to G.L. c. 272, § 54 – for any violator committing either of these offenses in public. Finally, a second offense of either crime still draws a potential jail sentence of up to 6 months in the house of correction.


  12. OfficerObie59

    OfficerObie59 Public Trough Feeder

    Dito. I don't see how this changing to a civil offense effects this whatsoever. For that matter, I'll still be seizing the license, and faxing a Form D to the RMV before I run the thing through the shredder.

    I thought the whole point of grabbing the plates was so that the person couldn't drive the car out of the tow yard without getting their license affairs in order first. Because civil or not, you still have to tow the car because if Mr. Suspended drives away and careens over a flock of COA patrons on their way from bingo, you bet your sweet ass you're probably getting sued.
  13. SinePari

    SinePari Needs more complaints

    DO NOT seize licenses! Bad idea, trust me...

    90-23: Unless there were egregious reasons to arrest I would only summons anyway, rather than arrest. Not worth the headache, so civil works for me. Tow company-one, operator-zero.

    90-34J: So if they're not paying their insurance, what makes you think they'll pay another $500? Again, revo/insc is a BS crim app so civil works for me again. Tow company-two, operator-null.

    272-53: The whole point of arresting a disorderly is to make them ORDERLY. Arrestable is good but incarceration after being found guilty is just stupid, so monetary assessments are good in my book.

    Here's the new angle: If and when you encounter a first offense OAS and that person starts giving you lip, OBVIOUSLY that's disorderly on a public way, so.... :cool:
  14. Rock

    Rock Undefined

    Please expound.......
  15. Johnny Law

    Johnny Law Nemo me impune lacessit Staff Member

    I've seized many licenses and cut them up. Never had a problem at all.
  16. Delta784

    Delta784 Guest

    With our paperwork system, making an arrest is easier than a summons.
  17. Tango

    Tango Subscribing Member

    SO is OAS after a Chemical Test Refusal good for an arrest? I read the legal update,which says "unless its an OUI situation."..nothing like a little grace period before this change goes into effect to let us all figure out this crap.
  18. Robert35

    Robert35 Subscribing Member

    Also there is a 25.00 fee for a Magistrate Hearing on the First Ticket hearing, use to be 0.00 and if they want to appeal to a Judge (JA) the fee went from 20.00 to 50.00. Unless you are indigent or on reduced income.
  19. csauce777

    csauce777 Supporting Member

    Besides, requiring a tow release form from the PD generally avoids the release of the vehicle to unlicensed people anyway. Its easier than removing the plates.
  20. j809

    j809 Subscribing Member

    90-29 requires you to take the plates
  21. CJIS

    CJIS MassCops Member

    Oh this is just lovely
  22. Wolfman

    Wolfman "Ultima Ratio Civis" Staff Member

    When did all the cops get absorbed into the DOR?

    This has revenue gathering written all over it. Instead of paying for a court-appointed lawyer for a criminal offense that winds up being knocked down to civil 99% of the time and hit with a $100 fine the state just makes it a straight $500 cash cow. All profit and no cost. Just like pot, replace the prosecution with a fine - or may as well just call it a "you got caught" tax.

    Kill Quinn, cut back pensions, eliminate details...I guess the Commonwealth feels that police are just mobile tax collectors after all. No money for new classes but God forbid a welfare bum doesn't get their food stamps or free cell phone and state-provided car.

    Public safety and law enforcement is an ever-diminishing role in the police officer's job here in Massachusetts. Just shut up, go out and write tickets.
  23. OfficerObie59

    OfficerObie59 Public Trough Feeder

    Probably the main motivation behind taking away the jail time on disorderlies and distrubings. With no jail time, there's no right to a public defender.
    F*ckin' of course.
  24. Mikey682

    Mikey682 Subscribing Member

    Yeah, $500 seems like a big deal, but anyone that's ever witnessed magistrates or judge's appeals knows what happens 80% of the time. A big fat NR, especially in cases of 90-9's or 90-20's where they've rectified the situation or show proof of a renewed reg or sticker. I have a funny feeling proof a valid license come hearing time is going to wipe away the Gov's ambitions of $500 to the state's coffers each time a V is written out.
  25. TopCop24

    TopCop24 Working in the land of misfit toys

    Going back to Sine's do not seize the license comment I remember reading a daily trainer that said something along the lines of no longer seize the license, unless you were locking someone up for OUI. I used to seize suspendeds all the time before that, I just wish I remembered when that trainer came out.

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