FREQUENTLY ASKED QUESTIONS

 

Q: How do I know the amount officer wrote on the ticket is correct?
A: The minimum is $100. ($50 for the first 10 miles over the limit, plus another $50 ‘head injury surcharge,’ $20 of which is really a state speeding tax and doesn’t go into head injuries fund at all. The driver’s manual and the pre-printed tickets are wrong about this part.) Then beyond the first 10 miles over the limit, it’s an additional $10 for each mile over. So for example, if you were accused of a heinous crime of traveling 73 mph on a highway with a posted speed limit of only 55 mph, the scheduled fine should be $180.

 

Q: Doesn’t the police officer have to appear in court?
A: Massachusetts law says that the ticket itself is evidence. That means you are presumed guilty because there is a piece of paper saying so. The magistrate will usually find you guilty on this basis no matter what you say. You have the right to appeal the magistrate’s decision to a judge. In theory the same rules of evidence apply, but the judge will often find you not responsible if the police officer doesn’t show up.

In 2001 the Appellate Division of the trial court ruled that the police department must send a representative to the appeal hearing or lose the case. In theory, you should be able to cite Boston Police Department vs. Alfred M. Moughalian, 2001 Mass. App. Div 61, and Boston Police Department vs. Semyon Dukach if the judge finds against you when the police department does not show up.

 

Q: Will my ticket affect my insurance rates?
A: Generally, yes. The schedule of points is found at 211 CMR 134 (Code Of Massachusetts Regulations). Each point results in an approximately 5% per year insurance surcharge for 5 or 6 years.

Major offenses are reckless or negligent driving, DUI, vehicular homicide, hit-and-run, operating after suspension or revocation, and refusing to stop for an officer. They are five points. You should hire a lawyer if charged with any of these except the last.

Minor offenses include speeding, expired registration, expired inspection sticker, leaving the keys in a parked vehicle on a public street, and many more. These are two points.

 

Q: The court found me responsible. Can I appeal the points?
A: No. If you are convicted in court, the points are automatic.

If the judge finds you responsible on appeal from a magistrate, your only recourse is to appeal in the court system on the basis of a legal mistake by the judge. Believing the police officer is not a legal mistake unless you presented clear evidence that the officer was wrong; in particular if it is only your word against the police the judge is allowed to believe the police.

 

Q: Can I plea bargain to a non-moving violation? Or go to traffic school?
A: Massachusetts law prohibits alternative dispositions of noncriminal traffic offenses. You can’t elect traffic school or probation. The court must find you “responsible” or “not responsible.” There is also no legal basis for a plea bargain to a different offense, and I have never heard of a court accepting such a deal.

The court will probably offer you a reduced fine. If you are from out of state this might be a good deal — Massachusetts may not notify other states of the ticket. For a Massachusetts driver, or anyone who might move to Massachusetts in the next 6 years, this is a bad deal. The average insurance cost for a ticket is $500. If you can see even a 10% chance of winning (for example, because the officer doesn’t show up on appeal), you are better off fighting the ticket.

 

Q: What is the difference between MGL 90-17, MGL 90-18, and 730 CMR 7.08(6)(c)?
A: MGL 90-17 (that is, chapter 90, section 17 of the Massachusetts General Laws) begins

No person operating a motor vehicle on any way shall run it at a rate of speed greater than is reasonable and proper

This is the “basic rule,” and is the law in every state except Montana.

Section 17 continues to say the following are prima facie evidence of unreasonable speed:

  • Exceeding 30 MPH for 1/8 mile in a “thickly settled” area (business district, or where houses average less than 200 feet apart for 1/4 mile).
  • Exceeding 40 MPH for 1/4 mile on an undivided highway outside a thickly settled area.
  • Exceeding 50 MPH for 1/4 mile on a divided highway outside a thickly settled area.
  • Exceeding 20 MPH in a school zone while children are present. (The state MUTCD supplement says they are to be used only at times and places when children under grade 9 are crossing the street in marked crosswalks on designated school routes on their way to and from school.)

“Prima facie” evidence means that you can be convicted of speeding if you exceed these speeds and no additional evidence is required, but you are allowed to present evidence that your speed was reasonable. In most other states, speed limits are absolute; you are breaking the law by exceeding the speed limit regardless of whether you are driving safely.

Section 18 permits additional speed regulations, with the approval of the Highway Department and the Registrar of Motor Vehicles. Section 17 also says that exceeding a speed limit set by a section 18 regulation is prima facie evidence of unreasonable speed. Section 18 regulations must be posted to be effective, and supersede the unposted limits set by section 17.

Except for the basic rule, section 17 does not apply on the Massachusetts Turnpike, which for legal purposes includes US 1 from the south end of the Tobin Bridge to I-93, I-93 from US 1 in Charlestown to Southampton Street in Boston, and the three harbor tunnels. However, the Turnpike has passed a regulation (730 CMR 7.08(6)(c)) setting absolute speed limits. The fine is the same as for speeding.

 

Q: The officer didn’t ask me to sign the ticket.
A: MGL 90C-2 requires the police officer to request you to sign the ticket. They rarely, if ever, do. Judges will not usually dismiss a ticket for violation of this law.

 

Q: I got a notice of an “immediate threat” license suspension.
A: State law allows the RMV to suspend a driver’s license for almost any reason after a hearing, or without a hearing if they say the driver is an “immediate threat.” The RMV prefers to declare an immediate threat, because it allows them to skip the hearing and proceed directly to collecting the license restoration fee.

State law requires that an immediate threat suspension be based on a single violation of motor vehicle law. The notice must contain the date and location of the violation. The driver has a right to a hearing within 30 days.

As part of the “Road Rage” campaign the RMV will consider a letter from a police officer as sufficient evidence to suspend a driver’s license as an immediate threat. Police have taken advantage of this to retaliate against drivers. So until the law or RMV policy changes, it is a bad idea to annoy a police officer in Massachusetts. You are likely to face a $50 fine and a 30 day license suspension.

 

Q: Has laser received judicial notice in Massachusetts?
A: Massachusetts judges routinely allow laser (LIDAR) evidence of speed. No appeals court has given a definitive ruling on when laser evidence is admissible. In the absence of a more recent ruling, courts should follow the guidance from the case Commonwealth v. Kathleen Whynaught, 377 Mass. 14 (1979), where the Supreme Judicial Court allowed use of radar evidence, saying:

It is our opinion that some foundation requirement pertaining to the accuracy of the particular radar instrument is appropriate in order to ensure that the persuasive force of scientific results is not improperly triggered. At present, however, we do not insist that this foundation be based exclusively on any one or two of the three principal tests or that testing occur with any given frequency. Instead, in any case where the issue is raised by the defendant, we leave it to the discretion of the trial judge to determine when a sufficient showing of the particular radar instrument’s accuracy has been made. We assume that judges will closely examine the nature of all testing procedures and that they will be guided in their admission decisions by the quality of the tests performed, rather than by their quantity. At the same time, we expect that the testing requirements judges impose will not be so onerous as to make use of radar devices a practical impossibility.