Bill S.2305

SENATE DOCKET, NO. 2445 FILED ON: 3/4/2010

SENATE . . . . . . . . . . . . . . No. 2305

The Commonwealth of Massachusetts

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In the Year Two Thousand Ten

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An Act Text of the Senate amendment to the House Bill relative to safe driving H4475.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Section 1 of chapter 90 of the General Laws is hereby amended by inserting after the definition of “Department”, as appearing in the 2008 Official Edition, the following definition:-

“Electronic message”, a piece of digital communication that is designed or intended to be transmitted between a mobile electronic device and any other electronic device; provided however that electronic message shall include, but not be limited to, electronic mail, electronic message, a text message, an instant message, a command or request to access an internet site, or any message that includes keystroke entries sent between mobile devices.

SECTION 2. Said section 1 of said chapter 90 is hereby further amended by inserting after the definition of “Mobile construction crane”, as so appearing, the following definition:-

“Mobile telephone”, a handheld or portable cellular, analog, wireless, satellite or digital telephone, including a telephone with 2-way radio functionality, capable of sending or receiving telephone communications and with which a user initiates, terminates or engages in a call using at least 1 hand. For the purposes of this chapter, “mobile telephone” shall not include amateur radios operated by those licensed by the Federal Communications Commission to operate such radios, or citizen band radios.

SECTION 3. Said section 1 of said chapter 90 is hereby further amended by inserting after the definition of “Transporter”, as so appearing, the following definition:-

”Voice-operated device”, a device which allows a user to compose, send or receive an electronic message while operating a motor vehicle without the use of either hand except to activate, deactivate or initiate a feature or function.

SECTION 4. Section 8 of said chapter 90 of the general laws, as so appearing, is hereby amended by inserting, in line 4, after word ‘registrar’ the following words :- nor any person who is an to illegal or undocumented alien.

SECTION 5. Said section 8 of said chapter 90, as so appearing, is hereby further amended by adding the following paragraph:-

An applicant for a license or renewal of a license appearing in person at a registry branch shall take and pass a vision test administered by the registry; provided, however, that an applicant may provide a vision screening certificate signed by an optometrist or ophthalmologist to demonstrate compliance with the minimum visual standards to obtain and hold a license.

SECTION 6. Said chapter 90 of the General Laws is hereby amended by inserting after section 8L the following 2 sections:-

Section 8M. (a) For purposes of this section “hands-free mobile telephone” shall mean a hand-held mobile telephone that has an internal feature or function, or that is equipped with a hands-free accessory, whether or not permanently part of such hand-held mobile telephone, by which a user engages in a call without the use of either hand, whether or not the use of either hand is necessary to activate, deactivate or initiate a telephone call.

(b) No person under 18 years of age shall use a mobile telephone or hands-free mobile telephone while operating a motor vehicle on any public way. For the purposes of this section, a junior operator shall not be considered to be operating a motor vehicle if the vehicle is stationary and not located in a part of the public way intended for travel.

A junior operator who violates the preceding paragraph shall be punished by a fine of $100 and shall have his license or permit suspended for 60 days for a first offense and shall not be eligible for license reinstatement until he also completes a program selected by the registrar that encourages attitudinal changes in young drivers, by a fine of $250 and shall have his license or permit suspended for 180 days for a second offense, and by a fine of $500 and shall have his license or permit suspended for 1 year for a third or subsequent offense.

It shall be an affirmative defense for a junior operator to produce documentary or other evidence that the use of a mobile telephone that is the basis of the alleged violation was made for emergency purposes. For the purpose of this section, an emergency shall mean that the junior operator needed to communicate with another to report any of the following: (i) that the motor vehicle was disabled; (ii) that medical attention or assistance was required; (iii) that police intervention was necessary for the personal safety of the operator or a passenger; or (iv) the presence of a disabled vehicle or an accident in the public way.

A penalty under this section shall not be a surchargeable offense under section 113B of chapter 175.

Section 8N. (a) For purposes of this section, a "health care provider'' shall be a primary care physician or other treating health care professional, as defined in chapter 112, with knowledge of an applicant’s overall physical and cognitive abilities.

(b) Notwithstanding any provision of the first paragraph of section 8, an applicant for a license, or the renewal of a license, age 75 or older shall apply in person. The applicant shall submit an elderly driving assessment form completed by the applicant’s health care provider in the health care provider’s professional capacity and the applicant shall submit the assessment form to the registrar. The elderly driving assessment form shall assess the applicant’s cognitive and physical ability, including a vision test, which shall include, but not be limited to, contrast sensitivity testing, and any other condition that might prevent such applicant from operating a motor vehicle. The elderly driving assessment form shall be developed by the registrar in consultation with the medical advisory board established in section 8C. An applicant for a license renewal shall complete the form upon the expiration of 60 months from attainment of the age of 75 years, and every 36 months thereafter. No license shall be issued until the registrar is satisfied that the applicant is a qualified person to receive such a license. The registry shall charge a fee not to exceed $30 for purposes of this paragraph.

An applicant age 75 or older who, after having submitted the assessment form, has been determined by the registrar not to meet the minimum cognitive, visual and physical abilities required to safely operate a motor vehicle, may petition the registrar for a road test as prescribed by the registrar to demonstrate the requisite driving skills necessary for licensure. Unless the registrar determines that permitting the driver to take a road test would present a safety risk to the general public, the driver shall be permitted to take a road test to determine proficiency operating a motor vehicle. The registrar shall make a determination as to whether licensure is warranted.

A person age 75 years or older, whose license to operate a motor vehicle has been suspended or revoked by the registrar under this chapter or section 113B of chapter 175, may request reconsideration by the registrar. Upon reconsideration, the registrar shall determine whether the person has demonstrated that the person is capable of safely operating a motor vehicle and the registrar shall issue findings to support the registrar’s determinations which shall be based on standards developed by the registrar, in consultation with the medical advisory board.

Any such determination by the registrar under this section may be appealed under section 28.

With respect to any person whose license to operate a motor vehicle is not renewed under this section, the registrar shall provide an identification card as provided for in section 8E.

SECTION 7. Said chapter 90 is hereby further amended by inserting after section 12 the following section:-

Section 12A. (a) No operator of a vehicle or vessel used in public transportation, including a train, passenger bus, school bus or other vehicle used to transport pupils, taxi, passenger ferry boat, water shuttle or other equipment used in public transportation owned by, or operated under the authority of the Massachusetts Bay Transportation Authority, the Woods Hole, Martha's Vineyard & Nantucket Steamship Authority, Massachusetts Port Authority, or the Massachusetts Department of Transportation, shall use a mobile telephone, hands-free mobile telephone or other mobile electronic device while operating such vehicle or vessel. Whoever violates this section shall be punished by a fine of $500. A violation of this section shall be a moving violation for purposes of the safe driver insurance plan under section 113B of chapter 175.

(b) It shall be an affirmative defense for an operator under this section to produce evidence that the use of a mobile telephone that is the basis of the alleged violation was made in the case of an emergency. For the purpose of this paragraph, an emergency shall mean that the operator needs to communicate with another person to report any of the following: (1) that the vehicle or vessel is disabled; (2) that medical attention or assistance is required on the vehicle or vessel; (3) that police intervention is necessary for the personal safety of a passenger or to otherwise ensure the safety of the passengers; or (4) the presence of a disabled vehicle or an accident on a roadway.

SECTION 8. Section 13 of said chapter 90, as appearing in the 2008 Official Edition, is hereby amended by striking out, in line 5, the words “citizens band” and inserting in place thereof the following words:- federally licensed 2-way.

SECTION 9. Said chapter 90 is hereby further amended by inserting after section 13A the following section:-

Section 13B. (a) No operator of a motor vehicle shall use a mobile telephone, or any handheld device capable of accessing the internet, to manually compose, send, or read an electronic message while operating a motor vehicle unless using a voice-operated device. For the purposes of this section, an operator shall not be considered to be operating a motor vehicle if the vehicle is stationary and not located in a part of the public way intended for travel.

(b) A violation of this section shall be punishable by a fine of $100 for a first offense, by a fine of $250 for a second offense and by a fine of $500 for a third or subsequent offense.

SECTION 10. Subsection (a) of section 22 of said chapter 90, as appearing in the 2008 Official Edition, is hereby amended by adding the following sentence:- An operator whose license is suspended or revoked on suspicion of mental or physical disability shall be entitled to a hearing within 3 business days, but may postpone the hearing for up to 30 days at the operator’s discretion.

SECTION 11. Subsection (b) of section 22 of said chapter 90 , as so appearing, is hereby amended by adding at the end thereof the following paragraph:

In any hearing where an a licensee’s has potential suspension or revocation is due in whole or in part to the operator’s physical or mental disability, the hearing shall be held within 14 days of the event which prompted the registrar to initiate said hearing, unless otherwise agreed upon by the involved parties. The registrar will consider all written and oral submissions by any interested parties at the hearing, and any and all medical evidence offered shall be made public for purposes of the hearing only. Any public record of the hearing shall have any and all medical evidence redacted, and any person, entity or agency present at the hearing that later disseminates said medical evidence without permission from the operator shall be liable to the operator for a sum of not less than $1,000 and not more than $5,000 for each violation under this section. If a person who disseminates medical evidence offered at a hearing under this paragraph without permission from the operator is an employee of the commonwealth, that person shall be immediately suspended without pay from the person’s position, pending a disciplinary hearing in accordance with the regular procedures of the agency by which the person is employed, unless the dissemination of the medical evidence was otherwise authorized or required by law. For purposes of the hearing, medical evidence shall only be accepted if reported or recorded by a qualified, licensed medical professional. The registrar shall notify the involved parties in writing of the registrar’s decision whether or not to revoke the operator’s license not later than 7 days after the hearing.

SECTION 12. Said chapter 90 is hereby further amended by inserting after Section 22H the following new section:-

Section 22I. (a) For purposes of this section, "health care provider'' shall mean a registered nurse, licensed practical nurse, physician, physician assistant, psychologist, occupational therapist, physical therapist, optometrist, ophthalmologist or podiatrist who is a licensed health care provider under chapter 112.

(b) If a health care provider acting in the health care provider’s professional capacity or law enforcement officer has good cause to believe that an operator is not physically or medically capable of safely operating a motor vehicle, the provider or officer may make a report to the registrar, requesting medical evaluation, as the registrar may prescribe, provided that such report is not made solely on the basis of age. The report shall state the provider’s or officer’s good faith belief that the operator cannot safely operate a motor vehicle. In making such report to the registrar, a health care provider shall disclose the medical information underlying his good faith belief in his report to the registrar. The good faith belief shall be based upon personal observation, physical evidence, or, in the case of a law enforcement officer, an investigation which shall be described in the report.

A health care provider or law enforcement officer who reports, in good faith, pursuant to this section shall be immune from civil liability that might otherwise result from making the report. A health care provider or law enforcement officer who does not report shall be immune from civil liability that might otherwise result from not making the report.

Upon receipt of the report, the registrar shall suspend the license of the operator. Not later than 30 days after receipt of the report, the registrar shall conduct a review to determine the operator’s capacity for continued licensure to operator a motor vehicle. The registrar shall develop standards, in consultation with the medical advisory board established under section 8C, by which the determination shall be made.

(c) Reports to the registry under this section shall be confidential and shall be used by the registrar only to determine a person’s qualifications to operate a motor vehicle. All reports made and all medical records reviewed and maintained by the registry under this section shall be confidential, except upon order of a court of competent jurisdiction or upon the written request of the respondent to examine any medical records or reports made about the respondent under this section.

A report made under this section shall not be a public record as defined in section 7 of chapter 4.

The registrar shall include the information about the procedures authorized in this section on the electronic website of the registrar.

SECTION 13. Section 24 of said chapter 90, as appearing in the 2008 Official Edition, is hereby amended by inserting after the word “vehicle”, in line 730, the following words:- or whoever while operating a motor vehicle in violation of section 12A or section 13B, such violation proved beyond a reasonable doubt, is the proximate cause of injury to any other person, vehicle or property by operating the motor vehicle negligently so that the lives or safety of the public might be endangered.

SECTION 14. Chapter 90 of the General Laws is hereby amended by striking out section 24G, as so appearing, and inserting in place thereof the following section:-

Section 24G. (a) Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of .08 or greater, or while under the influence of intoxicating liquor, or of marihuana, narcotic drugs, depressants, or stimulant substances, all as defined in section 1 of chapter 94C, or the vapors of glue, and so operates a motor vehicle recklessly or negligently so that the lives or safety of the public might be endangered, and by any such operation so described causes the death of another person, shall be guilty of homicide by a motor vehicle while under the influence of an intoxicating substance, and shall be punished by imprisonment in the state prison for not less than 2 ½ years nor more than 15 years and a fine of not more than $5,000, or by imprisonment in a jail or house of correction for not less than 1 year nor more than 2 ½ years and a fine of not more than $5,000. The sentence imposed upon such person shall not be reduced to less than 1 year, nor suspended, nor shall a person convicted under this subsection be eligible for probation, parole or furlough or receive any deduction from the person’s sentence until such person has served at least 1 year of such sentence; provided, however, that the commissioner of correction may, on the recommendation of the warden, superintendent or other person in charge of a correctional institution or the administrator of a county correctional institution, grant to an offender committed under this subsection a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at the institution; or to engage in employment under a work release program. Prosecutions commenced under this section shall neither be continued without a finding nor placed on file.

The provisions of section 87 of chapter 276 shall not apply to a person charged with a violation of this subsection.

(b) Whoever, upon any way or in any place to which the public has a right of access or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of .08 or greater, or while under the influence of intoxicating liquor, or of marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section 1 of chapter 94C, or the vapors of glue, or whoever operates a motor vehicle negligently so that the lives or safety of the public might be endangered and by any such operation causes the death of another person, shall be guilty of homicide by a motor vehicle and shall be punished by imprisonment in a jail or house of correction for not less than 30 days nor more than 2 ½ years, or by a fine of not less than $300 nor more than $3,000, or both.

(c) Whoever, upon any way or in any place to which the public has a right of access or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle recklessly so that the lives or safety of the public might be endangered and by any such operation causes the death of another person, shall be guilty of reckless homicide by a motor vehicle and shall be punished by imprisonment in a jail or house of correction for not more than 2 ½ years, or by imprisonment in the state prison for not more than 10 years, or by a fine of not more than $3,000, or by both such fine and imprisonment. For the purpose of this section, a person operates recklessly when he consciously disregards a substantial and unjustifiable risk that the lives or safety of the public might be endangered.

(d) The registrar shall revoke the license or right to operate of a person convicted of a violation of subsection (a), (b) or (c) of this section or punished under section 13 ½ of chapter 265 when a motor vehicle is the instrument of the offense for a period of 10 years after the date of conviction for a first offense. The registrar shall revoke the license or right to operate of a person convicted for a subsequent violation of this section for the life of such person. No appeal, motion for a new trial or exceptions shall operate to stay the revocation of the license or of the right to operate; provided, however, such license shall be restored or such right to operate shall be reinstated if the prosecution of such person ultimately terminates in favor of the defendant.

SECTION 15. Section 113B of Chapter 175 of the General Laws, as so appearing, is hereby amended by striking out the fourteenth paragraph and inserting in place thereof the following paragraph:-

Upon receiving notification from the merit rating board that a driver has had 3 surchargeable incidents within the past 24 months, the registrar shall, after a hearing based solely on the accuracy of the merit rating board’s records, require the driver to participate in and complete a driver education program satisfactory to the registrar. If the driver fails to provide to the registrar proof of completion of the driver education program within 90 days after the registrar mails to the driver notice of the requirement, the registrar shall suspend the driver’s license or right to operate a motor vehicle until the registrar receives proof of completion of the driver education program.

SECTION 16. Notwithstanding any general or special law to the contrary, the registrar of motor vehicles shall notify all persons whose license to operate a motor vehicle is set to expire by mail, not later than 30 days before the expiration.

SECTION 17. Notwithstanding any general or special law to the contrary, the registrar of motor vehicles shall not impose any additional fee for transactions conducted via telephone or in person at any registry location in excess of those fees charged for transactions conducted via the commonwealth’s web portal.

SECTION 18. Upon revocation of a license to operate a motor vehicle under section 8 of chapter 90 of the General Laws, the registrar shall provide a list of alternative means of transportation options to the person whose license has been revoked. The list shall include at least 1 paratransit option that is in compliance with 42 U.S.C. § 12101.

SECTION 19. There shall be a special commission to study the long-term alternative transportation needs of senior citizens. The commission shall consist of the secretary of elder affairs or the secretary’s designee who shall serve as chair; the secretary of transportation or the secretary’s designee; the director of the office on disability or the director’s designee; 1 person to be appointed by the president of the senate and 1 person to be appointed by the speaker of the house of representatives; and 2 persons to be appointed by the governor, 1 of whom shall be a representative of the Massachusetts Chapter of American Association of Retired Persons and 1 of whom shall be a representative of a disability rights organization. Each member shall serve without compensation.

The commission shall review the public transportation alternatives for seniors citizens and the disabled and may develop model plans that could be utilized by municipalities, state agencies and regional transportation authorities. The commission shall: (1) examine the transportation needs of senior citizens in the commonwealth; (2) examine and evaluate transportation services for senior citizens inside and outside of the commonwealth; (3) establish best practices and evaluate programs and services available to urban, suburban and rural populations; (4) evaluate regional disparities in transportation options and explore solutions to those disparities; (5) provide recommendations for improvements in the management of local and regional transportation services for seniors; (6) examine and develop recommendations on ways in which the commonwealth and its municipalities can meet the transportation needs of senior citizens for the next 15 years: and (7) examine and develop recommendations on methods by which the commonwealth may meet the transportation needs of senior citizens, including, but not limited to, recommendations regarding revenue sources and establishing new incentives for public-private partnerships in the development of transportation services.

The commission may hold public hearings to assist in the collection and evaluation of data and testimony.

The commission shall submit its findings and recommendations relative to public transportation options for seniors citizens and the disabled, together with drafts of legislation necessary to carry those recommendations into effect, by filing the same with the clerks of the house of representatives and senate, the house and senate committees on ways and means, the joint committee on elder affairs and the joint committee on transportation not later than March 1, 2012.

SECTION 20. Notwithstanding any general or special law to the contrary, section 30A½ of chapter 90 of the General Laws shall not apply to section 8N of chapter 90.

SECTION 21. Section 15 of this act shall apply to surchargeable offenses that occur on or after the effective date of this act.