The Massachusetts Supreme Judicial Court Holds That A Continuance Without A Finding Is Not A Prior Conviction When Calculating Prior Offenses In The Context Of An Administrative Driver's License Suspension Hearing
The Massachusetts Supreme Judicial Court in Souza v. Registrar of Motor Vehicles held that a continuance without a finding is not a prior conviction for the purpose of calculating prior offenses for the purposes of an Administrative Driver's License Suspension.
By way of background, Massachusetts General Laws Chapter 90 section 24 (1) (f) (1) provides that a driver faces suspension of his or her driver's license for refusing to submit to a breathalyzer test following an arrest for operating under the influence of alcohol. In the event that the driver has previously had a "conviction" for operating under the influence of alcohol the amount of time that his or her license is suspended increases, relative to the number of prior "convictions."
In Souza, the plaintiff had a "continuance without a finding" for an operating under the influence of alcohol back in the 1990's and was arrested again 2010. The Registry maintained the position that the "continuance without a finding" counted as a prior conviction and suspended his license for three years. As Souza discusses, "Pursuant to G.L. c. 90, § 24(1) (f ) (1) (§ 24 [f ]  ), the registrar 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. Id." As indicated above, in this case the petitioner's license was suspended for three years. The plaintiff appealed the finding of the Registry. The Supreme Judicial Court held that the "cwof" cannot be considered a conviction in the context of an Administrative License Suspension Hearing.
The lion's share of the opinion discussed whether a "continuance without a finding" (cwof) is a conviction in this administrative context. In the criminal law context, a "cwof" is NOT considered a criminal conviction, however a case that is disposed of in that manner will appear on a CORI check and law enforcement and some employers will have access to that information. Additionally, if an individual receives a "cwof" on the offense of driving under the influence of alcohol, it will count as a "conviction" and if the individual gets arrested for that offense again, he or she will be charged as a second, third or fourth offender as indicated by his or her CORI.
When a defendant admits to sufficient facts and receives a "cwof"--the case is continued for a period of time without a finding of guilt and then dismissed provided the defendant satisfies all conditions of probation. In most Massachusetts District Courts a "cwof" is a common disposition for defendants disposing of a first offense operating under the influence of alcohol case. The benefit of this type of disposition is that if an individual applies for a job he or she does not have indicate that he or she has been convicted of a crime because a guilty finding did not enter. However, if a defendant who receives a "cwof" is found to be in violation of his or her terms of probation he or she can be surrendered and a guilty finding may enter. Furthermore, a defendant in that situation faces the possibility of being sentenced to jail for a term of two and one half years if he or she is found to be in violation of the probationary terms.