Submitted by Anonymous on Mon, 09/14/2009 - 09:10
In MA does a judge have any discretion in the application of consequences under a 24 D, continued without finding (CWOF)? (1st offence, .13 BAC)
Is the alcohol program absolutely mandatory or can the judge amend it ?
Can the judge immediately return your license on his own, or do you HAVE to go a RMV hearing ? Thanks for your help.
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24D Program
The short answer is no, the judge has no discretion with the alcohol program requirement of the 24D alternative disposition. The program is mandatory as part of that disposition. If you live out of state you may be able to speak with the probation office to determine if you may complete the program out of state.
However, the 24D program is alternative disposition. Meaning the statute says that the mandatory plea for OUI is Guilty with probation, fines, fees and license loss. To preserve a persons record the statute also allows for a person charged with OUI to enter a CWOF plea with the alcohol program, probation, fines, fees and license loss. You do not have to do the 24D program if you do not want to. However, you will loose your license for a longer period of time (either 90 days or 1 year, I can't recall the exact length), and the RMV may require you to do the program anyway to get your license back.
With respect to the judge returning your license - the judge may not return it after a plea. Your license will be suspended for a certain period of time (usually 45 days) immediately after the judge takes the plea. You may apply for a hardship license from the RMV once you have entered the alcohol program (you sign up for this after your plea at the probation department). The information presented in this response is not intended to form an attorney-client relationship nor is the colloquy protected by an attorney-client privilege or work-product rule. The answer provided is based solely on the minimal facts presented in the inquiry and represents only a preliminary and hypothetical response and analysis. It is not to be considered as legal advice and is for information purposes only. If you wish specific legal advice and recommendations about your particular situation, contact an attorney to schedule a consultation. This is not intended to constitute legal advertising or solicitation, but rather to educate.
Attorney Kevin Gaughen, Jr.