Today, in Souza v. Registrar of Motor Vehicles, SJC-11123 (2012),Massachusetts Supreme Judicial Court
ruled that a Continued Without Finding (CWOF) dismissed after probation does not count as a conviction for the purpose of driver’s license suspension for refusal to take breathalyzer.
Pursuant to G. L. c. 90, § 24
(1) (f) (1) (§ 24  [f] ), the Registrar of Motor Vehicles
is required to suspend an arrested driver’s license for three years for refusal to submit to a breathalyzer test if the driver has been previously “convicted” of an OUI offense. If the driver has not been previously convicted, the license suspension period is 180 days.
If you have had a second offense OUI conviction but your first offense was continued without a finding, you may be able to get your license back now or at least shorten your suspension period to 180 day. You may also be able to shorten your suspension period if you have had more than one prior offense.
He Court held held “[i]f the Legislature
, in enacting Melanie’s Law, had wanted to include an admission to sufficient facts in the definition of “convicted,” it could have done so explicitly”
The court “recognized that an admission to sufficient facts and an associated continuance without a finding constitute ‘a procedure which often serves the best interests of both the Commonwealth and the defendant. The benefit to a defendant is obvious: he may be able to avoid a trial and ‘earn’ a dismissal of the indictment or complaint, thereby avoiding the consequences of having a criminal conviction on his record.’” One consequence of the conviction being the longer suspension of the license.
Undoubtedly, this decision will raise the ire of many people who felt the Melanie’s Law was designed to combat the surge of repeat offenders. They will surely push the legislature to amend Melanie’s Law right away to close this loophole. If you have had your license suspended by the Registry of Motor Vehicles after any criminal case, you need to have your case reviewed by an attorney right away to see if your suspension can be removed or shortened in duration, before the legislature takes action. For a evaluation of your case, contact
the Law Office of Isaac J. Mass.