Chemical Test Refusal Suspension Appeals

The Massachusetts Registry of Motor Vehicles imposes chemical test refusal suspensions ranging from 6 months to lifetime, depending on the driver’s age and record of prior DUI convictions or alcohol program assignments. The Registry imposes these administrative license suspensions in addition to any suspensions triggered by the underlying DUI conviction. Chemical test refusal suspensions go into effect immediately, as soon as driver who is arrested for OUI refuses to take a breath or blood test. In some other states, refusing to submit to a breath or blood test is an independent infraction or offense. In Massachusetts, it is a violation of the implied consent law but it does not carry a fine or penalty other than an administrative license suspension.

A driver whose license was suspended for breathalyzer refusal is legally entitled to have a hearing at the Registry in Boston regarding the legitimacy of the chemical test refusal suspension. This hearing must be held within 15 calendar days of the refusal, including weekends and holidays. The Boston Branch of the Registry is the only location where chemical test refusal suspension appeals are held and they are only conducted between 9:00 a.m. and 3:00 p.m.

As a preliminary matter, the police officer’s report of the chemical test refusal should be carefully reviewed by a lawyer to insure that all of the statutory requirements are met. If the breathalyzer refusal report is deficient in any material way, as a matter of law, the Registry is required to vacate the resulting suspension and reinstate the customer’s license if it is not otherwise suspended. By knowing what to look for, I have personally reversed 3 year and 5 year chemical test refusal suspensions which were based on legally deficient reports.

Assuming that officer’s report of the chemical test refusal is valid and meets the legal requirements, to reverse the suspension, the Appellant must prove any one of the following three items: (1) police officer did not have reasonable grounds to arrest the Appellant for operating under the influence, (2) the Appellant was not arrested for OUI; or (3)  the Appellant did not refuse to take the breath or blood test.

At a chemical test refusal hearing, the burden is on the Appellant to put the required facts on the record. I do this by supplying the hearings officer with a sworn affidavit from the client. It is imperative to create an adequate record at this hearing, because facts not properly placed on the record cannot be relied upon in the event of an appeal of the hearings officer’s decision.

Registry hearings officers do not announce the results of breathalyzer refusal hearings immediately. Instead, the hearing record is kept open for the submission of additional documentary evidence from the police and, if necessary, the Appellant or his lawyer. One the hearing record is declared closed, the hearings officer is required by Registry regulation to render a decision within 10 days.

If the hearings officer’s decision is unfavorable, the customer has 30 days to appeal the decision to the District Court having jurisdiction over the location where the operating under the influence (OUI) case occurred. An appeal is initiated by filing a Petition for Judicial Review. No new evidence can be introduced and this hearing is confined to the evidence contained in the Registry’s hearing record.

If the RMV hearings officer finds in favor of the Appellant, the chemical test refusal suspension will be vacated and the customer can reinstate his or her driver’s license, so long as it is not otherwise suspended or revoked.

Hardship licenses are not available during the term of chemical test refusal suspensions, unless the 1st offense OUI charge was resolved pursuant to G.L. c. 90 § 24D. There are no exceptions to this rule.