# Oper after susp for OUI



## Lookinforacopjob (Sep 9, 2008)

Last night I stop a guy for speeding. A check of his KQ shows a 3 year revocation due to a chemical test refusal on 5/30. He hasn't even been arraigned on the charge yet. So his license status is suspended due to to the refusal. A few guys I work with are telling me he can only be charged with straight 90/23 and not for op after for OUI. They said he has to have a disposition on his criminal case and then the registry imposed sanction due to the guilty or CWOF finding. 

There is no way they are right... Can anyone clarify their thoughts or can anyone post a link to the actual statute that applies. I can't find it. 

PS. He's getting charged with it anyway and court can drop it down if they see fit.


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## Guest (Jun 3, 2013)

It appears that way when you dissect 90/23 which references 90/24/1/a and 90/24D. I'll let you know - I have a 3rd motion to dismiss (aka: 3rd grasp to avoid a man/min sentence) coming up for the very same thing because the guy was suspended for a 24D CWOF and the lawyer is claiming it isn't a qualifying suspension (which, IMO, is a trial matter not a motion matter). I'll let you know how it goes.


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## 263FPD (Oct 29, 2004)

Essentially speaking, yes. There has to be a a suspension for an OUI conviction. Suspension for Admin Per Se, be it a refusal or even the suspension for a completed BT, you can not charge (successfully prosecute) as suspended for OUI. Straight 90/23 charge is appropriate here.


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## Bloodhound (May 20, 2010)

263FPD said:


> Essentially speaking, yes. There has to be a a suspension for an OUI conviction. Suspension for Admin Per Se, be it a refusal or even the suspension for a completed BT, you can not charge (successfully prosecute) as suspended for OUI. Straight 90/23 charge is appropriate here.


What he said.


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## Lookinforacopjob (Sep 9, 2008)

Ok so I called the RMV enforcement division because this is driving me crazy. They said that if a person is suspended due to a per se or refusal they are suspended for OUI It is also for the time period after a conviction They went on to say that say the perp was a per se and it was 35 days ago and that susp has since expired and they have not reinstated their license they are STILL suspended for OUI. They are faxing me the chap and sec info. I will post when I get it. Thanks for the responses though


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## Bloodhound (May 20, 2010)

Lookinforacopjob said:


> Ok so I called the RMV enforcement division because this is driving me crazy. They said that if a person is suspended due to a per se or refusal they are suspended for OUI It is also for the time period after a conviction They went on to say that say the perp was a per se and it was 35 days ago and that susp has since expired and they have not reinstated their license they are STILL suspended for OUI. They are faxing me the chap and sec info. I will post when I get it. Thanks for the responses though


What the RMV says, and what my district court believes, are two different things, unfortunately.


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## 269 (Oct 2, 2008)

OAS for OUI only applies if the suspension relates to an OUI conviction (or CWOF), not for a BT failure or refusal. OAS for OUI also only applies during the suspension period for the OUI. For example, if someone is convicted or pleads for OUI and get hit with a 45 day license loss, they can be charged with OAS for OUI for operation during the 45 day suspension. If they operate after the 45 day suspension period but before actually reinstating, they are only OAS, not OAS for OUI. It sounds like the people you talked to at the RMV don't know what their talking about. 

As far as charging the person with OUI for OAS anyway and letting the court knock it down, while there may be something to be said for sticking it to the guy, in the long run if you make a habit of overcharging or incorrectly charging people, you may earn a reputation with the court as someone who does not know the law or is vindictive and does not care about the law. Neither is good.


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## Guest (Jun 4, 2013)

Lookinforacopjob said:


> Ok so I called the RMV enforcement division because this is driving me crazy. They said that if a person is suspended due to a per se or refusal they are suspended for OUI It is also for the time period after a conviction They went on to say that say the perp was a per se and it was 35 days ago and that susp has since expired and they have not reinstated their license they are STILL suspended for OUI. They are faxing me the chap and sec info. I will post when I get it. Thanks for the responses though


I'd like to see that. My reading of 90/23 indicates it has to be a conviction or 24D related suspension, not BT suspension. I'm not so sure about when the suspension expires pending reinstatement, as reading 90/23 doesn't differentiate.


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## 263FPD (Oct 29, 2004)

Lookinforacopjob said:


> Ok so I called the RMV enforcement division because this is driving me crazy. They said that if a person is suspended due to a per se or refusal they are suspended for OUI It is also for the time period after a conviction They went on to say that say the perp was a per se and it was 35 days ago and that susp has since expired and they have not reinstated their license they are STILL suspended for OUI. They are faxing me the chap and sec info. I will post when I get it. Thanks for the responses though


Wrong. Wrong. wrong.

Don't call the registry. Call the DA with questions like that.


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## mpd61 (Aug 7, 2002)

269 said:


> OAS for OUI only applies if the suspension relates to an OUI conviction (or CWOF), not for a BT failure or refusal. _* It sounds like the people you talked to at the RMV don't know what their talking about.*_


Wouldn't be the first time either. Like when "they" decided to ignore MGL and stopped issuing ticket books to certain State agencies...Legislature fixed that one!


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## 263FPD (Oct 29, 2004)

"As far as charging the person with OUI for OAS anyway and letting the court knock it down, while there may be something to be said for sticking it to the guy, in the long run if you make a habit of overcharging or incorrectly charging people, you may earn a reputation with the court as someone who does not know the law or is vindictive and does not care about the law. Neither is good"

100% agree with this^^^

Lets not forget Lookingforacopjob, that you are still fairly new to the job, and there for you are still building that rep in the courts. I don't know how many OUI trials you have under your belt, but I do know that with every one of them, you are building your reputation. 

I have been grilled harder on drunk driving trials, than major cases in the Superior Court. They do it, because they can. There are shitload of loopholes that defense can use. One of the most common tactics is trying to impeach your credibility. Don't get me wrong. I also charge the maximum that I can (in most cases). But what I try to make certain of, is that my charges are actually chargeable. All I am saying, if you aren't sure of something, do not do it unless you know for a fact that you can. Believe it or not, some of those people you work with, really know what it is they are talking about. 

On the flip side, I know some ranking cops, that do not know what's what. I had a boss tell me one time that the guy I locked up for B&E in to MV, was not subject to arrest because the B&E occurred during the daylight hours. I actually had to show him the book and prove that there was a right of arrest. It doesn't make him a bad boss per sé, but it shows that people don't know everything just because they have a title. Odds are that the guy who is doing the job out there every day, may actually know a thing or two. To be perfectly honest with you, you should call the DA's office and have them change the charge to a straight OAS. My .02¢ worth.


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## Bloodhound (May 20, 2010)

263FPD said:


> I have been grilled harder on drunk driving trials, than major cases in the Superior Court. They do it, because they can. There are shitload of loopholes that defense can use.


This has definitely been my experience too. I love having to stand in front of a jury to demonstrate FSTs.


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