Problems with a CWOF

[Chevy 2 65]

.

 

[Rob Boudrie]

My personal belief (keeping in mind that I am not a lawyer) is that in Tirado the SJC designed its ruling as it did to ensure compliance with federal prohibition on masking CDL holders MV violations.

It would have made more sense, from a legal perspective, to just prohibit CWOFs for driving offenses by CDL holders.

MA already has an "anti-masking" policy for moving violations. Magistrates and judges are specifically prohibiting from imposing any alternative finding/sentence that would allow the defendant to avoid the insurance rating supplemental punishment.

 

[Knuckle Dragger]

My personal belief (keeping in mind that I am not a lawyer) is that in Tirado the SJC designed its ruling as it did to ensure compliance with federal prohibition on masking CDL holders MV violations.

That is exactly correct.

 

[teaser452]

^^

I was surprised to learn that a CWOF is not always accompanied by ASF. I was attending an LTC denial hearing last week where the petitioner had an old CWOF, but no ASF.

Did the person win? Get his LTC?

 

[Knuckle Dragger]

Did the person win? Get his LTC?

Yes. There were two appeals that day, both from the same town and both suitability denials based upon long ago police 'contact' and did not result in convictions. These denials were based upon old police reports.

Interestingly, the judge read the updated public safety related requirement for suitability denials to mean that the police chief bore the burden of justifying suitability denials. The chief did a poor job of justifying his actions and the judge easily rule in favor of both petitioners.

 

[Chevy 2 65]

Yes. There were two appeals that day, both from the same town and both suitability denials based upon long ago police 'contact' and did not result in convictions. These denials were based upon old police reports.

Interestingly, the judge read the updated public safety related requirement for suitability denials to mean that the police chief bore the burden of justifying suitability denials. The chief did a poor job of justifying his actions and the judge easily rule in favor of both petitioners.

Excellent ! Thanks for the update

 

[inkdesigner]

Yes. There were two appeals that day, both from the same town and both suitability denials based upon long ago police 'contact' and did not result in convictions. These denials were based upon old police reports.

Interestingly, the judge read the updated public safety related requirement for suitability denials to mean that the police chief bore the burden of justifying suitability denials. The chief did a poor job of justifying his actions and the judge easily rule in favor of both petitioners.

Interesting. If you can say, what town was this in? Also, are these rulings helpful in setting precedent for other folks in the Commonwealth who are/might challenge denials?

 

[Len-2A Training]

They are district court rulings, so they set no precedent for any future cases, even out of the same courthouse.

 

[42!]

They are district court rulings, so they set no precedent for any future cases, even out of the same courthouse.

Still would really love to have the case info. It could be a real help.

 

[Knuckle Dragger]

A somewhat related observation.

Every time I see/hear a discussion on a CWOF it's always a continuation after a guilty plea along with an admission of sufficiant facts...But

From the "Massachusetts Rules of Criminal Procedure Including amendments effective January 1, 2016"
Rule 12: Pleas and Withdrawals of Pleas
(2) Admission to Sufficient Facts. In a District Court, a defendant may, after a plea of not guilty, admit to sufficient facts to warrant a finding of guilty.

I haven't been able to find anything that allows a ASF following a guilty plea... other than lots of people saying it's done that way.

So why do I always see it as a CWOF after a guilty plea?

When I say that a CWOF with an ASF is a 'guilty plea-light', I'm speaking euphemistically. Some consider it like a guilty plea because the defendant has basically said in open court and for the record: "Yes, there's enough evidence to convict me", in return for an agreement to dismiss the charges. In the process they waive all rights to a trial or any due process if they violate the terms of their pre-trial diversion. You only need to read Triado to see where this can go:

An admission to sufficient facts to warrant a finding of guilty "triggers the same safeguards required when a defendant offers to plead guilty." Commonwealth v. Lewis, 399 Mass. 761 , 763 (1987). See Mass. R. Crim. P. 12 (a) (2), (a) (3), as appearing in 470 Mass. 1501 (2015). "The judge shall conduct a hearing to determine the voluntariness of a plea or admission and the factual basis of the charge" (emphasis added). Mass. R. Crim. P. 12 (c) (5), as appearing in 442 Mass. 1511 (2004). The rule further describes the procedures to be followed for a plea or admission to sufficient facts. Commentators and the established practice in the District Court indicate that a judge would not and should not accept an admission to sufficient facts unless that admission had a factual basis to support a finding of guilt of the crime charged. See E.B. Cypher, Criminal Practice and Procedure § 24:76 (4th ed. 2014). Indeed, it is illogical to conclude that a defendant could receive the disposition of a CWOF without first admitting to sufficient facts that satisfied the judge that he or she was guilty. See Mass. R. Crim. P. 28 (b), 378 Mass. 898 (1979). See also Commonwealth v. Norrell, 423 Mass. 725 , 727 n.5 (1996).

The reason an admission to sufficient facts triggers the same safeguards as a guilty plea is that a violation of the conditions of a CWOF may result in the immediate adjudication of guilt and imposition of sentence without requiring the Commonwealth to offer any further evidence of the underlying offense. See Commonwealth v. Tim T., 437 Mass. 592 , 596-597 (2002). See also Commonwealth v. Mahadeo, 397 Mass. 314 , 316 (1986). If a judge can enter a finding of guilty and impose sentence without taking any further evidence of the underlying offense after a violation of the conditions of a CWOF, it follows that an implicit determination has been made that the defendant "has violated or failed to comply with the law." We therefore conclude that a CWOF falls within the definition of "conviction," as that term is used in G. L. c. 90F, § 1.

Judge McGill not withstanding, do I think that the proceeding typically follow the safeguards described above? Probably not.

Anyone accepting a CWOF with an ASF is living the the proverbial Sword of Damocles over their head for the term of the CWOF and potentially well beyond that.