How to Win Your RMV Refusal Hearing

While retaining a RMV attorney is usually the best way to increase your chances of winning your breath test refusal hearing, there is no reason you cannot do it yourself with a little preparation. We have compiled key information which you can use to challenge your breathalyzer refusal suspension.

4 Steps to Winning Your Refusal Hearing

There are four steps you must follow to win your refusal hearing.

  1. Spend an hour or two reviewing the law and procedures applicable to all hearings. Pay particular attention to the material dealing with the statutory requirements and elements of a successful chemical test refusal appeal, as they will help you develop and establish the record necessary to succeed.
  2. Master the four elements the RMV needs to prove at the refusal hearing to uphold the suspension of your license so you can begin to focus on the defenses that can actually win the case for you.
  3. Review the defenses typically available to a refusal hearing and identify the ones you can use based on the facts of your own case.
  4. Prepare a written plan of attack so that your case is organized, you won’t forget anything, and you can stay calm and focused no matter what happens at the hearing. It is imperative that you put the helpful facts on the record at the Registry hearing, because later hearings, such as the District Court Appeal, are limited to the record developed at the RMV.

Breathalyzer test refusal

If despite your best efforts the hearing officer upholds the suspension of your license for 6 months up to life, you will have hopefully maximized your chances of getting the adverse decision overturned at the District or Superior Court.

Understand the Basics of all RMV Hearings

Many of the issues you will encounter in an admin per se hearing are common to all RMV hearings.

For example, every RMV hearing is governed by specific regulations. You should view this hearing as your opportunity to tell your “side of the story” and to present evidence that is favorable to your case. You are allowed to submit sworn affidavits and documentary evidence.

Know the Elements of a Breath Test Refusal Hearing

At a refusal hearing, the RMV must prove four things to suspend your license:

  1. That the officer had reason to believe you were DUI;
  2. That you were lawfully arrested for DUI; and
  3. That you were advised if you refused to complete a chemical test that your license would be suspended or revoked for 6 months up to life; and
  4. That you refused or failed to complete a chemical test.

The first two elements of a refusal case really come down to the same issue: were you arrested on reasonable grounds?  The third element focuses on the way the officer advised you of the consequences of refusing (called the “admonishment”), and is a frequent topic of appeals actions.

Your Actual Refusal

The final element is your actual refusal, but note that it is more broadly worded to include “failure to complete.” That language puts the burden on the motorist to complete the test – you don’t actually have to refuse to be considered as having refused for suspension purposes. Also, refusals must be properly witnessed and documented.

If the hearing officer fails to address these elements (or if you refute any of them when it’s your turn to present your case), the RMV cannot legally suspend your license. Remember that the police have the burden of proving these elements; you do not have to disprove them. Sometimes,  just objecting to the evidence may prevent the RMV from relying on it to rule against you. The formal rules of evidence do not apply to refusal hearings. However, the evidence must have some level of reliability to be introduced and it can be challenged in some situations.

MA Hardship License for Non-Residents

You cannot get a Massachusetts Hardship License if your are not a Massachusetts Resident. This is because in order to be issued any type of Massachusetts driver’s license, including a Cinderella or work license, you must be a resident of Massachusetts and you will be required to prove residency.

The good news is that if your right to operate has been suspended or revoked by the MA Registry of Motor Vehicles, you may be able to get “hardship relief” by going before the Board of Appeal. This appellate board has the legal authority to order the Registry of Motor Vehicles to remove the National Driver Register (NDR) block which will prevent you from being issued a driver’s license in any state. If the Board orders the Registry to remove the block, you will be able to apply for a driver’s license in your home state and your Mass. suspension or revocation will not prevent you from being granted the right to drive where you live.

If you are an out of state resident, the Board of Appeal is the only source for relief from a license suspension on the grounds of hardship. The Registry will not grant you this type of relief, under any circumstances, without a “Finding and Order” from the Appeals Board instructing the Registry to allow you to reinstate.

If you are Ignition Interlock Device (IID) required, you will need to either have the IID installed or apply for consideration for a waiver of the IID requirements based on non-residency. If you are granted a waiver by the Registry, you cannot operate a motor vehicle in Massachusetts without a certified IID. In order to get any further exemption from the IID requirement, if you are a repeat offender, the Board of Appeal must specifically state in the “Finding and Order” to “reinstate without the IID.”

The option of seeking hardship relief instead of a hardship license allows those faced with Massachusetts license suspensions to appear before the Division of Insurance Board of Appeal to be considered for relief which allows them to legally drive, so long as the motorist’s home state is willing to grant him or her a driver’s license. Hardship relief results in removal of the NDR block which is automatically applied to a driver’s record when his or her right to operate has been suspended or revoked in any state. Motor Vehicle departments are required to check the NDR prior to issuing a license. This requirement prevents individuals from obtaining a license in one state while his or her license is suspended in another state or jurisdiction. The Board’s ability to have this NDR block removed on the basis of hardship allows deserving drivers who qualify for relief a second chance.


Risk of Recidivism and the Board of Appeal

Risk of recidivism or relapse is a key factor in any hardship license case which goes before the Division of Insurance Board of Appeal. Board members are rightfully concerned about an Appellant obtaining hardship relief from the Board and re-offending. Therefore, if you are seeking a hardship license, which is discretionary and considered “extraordinary relief” by the courts, you must successfully address recidivism concerns.

One of the ways you can increase your chances of being granted a reinstatement by the Board is to have a completed an alcohol education program which is commensurate with your DUI offense and the required aftercare component of this program. Being classified by the aftercare provider as having a low risk of recidivism is an important component of any hardship license appeal. However, the discharge summary must accurately describe your entire DUI history and prior drinking behavior, which must match your driving and criminal records, both of which the Board of Appeal will review as part of your hearing.

Another way to convince the Board of Appeal that your risk to re-offend is low is to actively participate in a self-help program such as Alcoholics Anonymous, Alanon, Narcotics Anonymous, or Smart recovery. Documented participation can show that you’re serious about not re-offending. Participation in individual counseling can also establish that you are not likely to relapse and re-offend, so long as it is properly documented.

One of the best ways to get information showing that you are a good risk to be issued a hardship license is to have a well-credentialed and experienced clinician, who has a good reputation, conduct a comprehensive substance abuse evaluation and write a report regarding your history and current prognosis as it relates to the potential for a future repeat offense. These reports can be extremely helpful when the clinician applies his or her expertise and explains why you are a good risk.

The Board of Appeal expects hardship license candidates to have well-prepared cases and the Board will not make calls or hunt for documents and reports. It is expected that when the case is presented the Appellant is able to establish a legitimate need for a license and that returning him or her to the road will not endanger public safety because any alcohol or substance abuse issues have been sufficiently brought under control. A lawyer who specializes in hardship licensing can help you prepare your case and increase your chances of getting your license back.

The 24D First Offender Program

In certain cases, a person charged with Operating a Motor Vehicle While Under the Influence of Liquor (DUI), may elect to dispose of his/her case pursuant to G.L. c. 90 § 24D. Under this disposition, the defendant must attend and satisfactorily complete an approved driver Alcohol Education Program. This structured program which consists of sixteen (16) educational classes, one two (2) hour evening per week, two (2) hours per session. In addition there will be an intake interview, an exit interview, two (2) mandatory Alcohol Anonymous meetings and one (1) required Mothers Against Drunk Driving (MADD) Forum. The cost of the 24D Alcohol Education Program is approximately $710.00.

Under this DUI disposition, the defendant’s driver’s license or right to operate a Motor Vehicle in Massachusetts will be automatically suspended for a minimum of 45 days and a maximum of 90 days, at the discretion of the judge who handles the case. This suspension runs after any chemical test refusal suspension. This 24D suspension is dramatically shorter than the 1 year suspension which a first offense DUI conviction normally carries in Massachusetts. The 24D suspension period does not include any suspension time served prior to the arraignment such as the 30 day admin. per se suspension period.

A DUI defendant receiving a 24D disposition will be placed on probation supervision for at least one year. While on probation, the defendant must report monthly, pay a monthly probation fee, and comply with all terms and conditions, which will be explained in detail by the supervising probation officer. Those receiving this first offender disposition usually have to surrender their driver’s licenses to a probation officer and the license is destroyed. This requires the probationer to get a new license upon the final resolution of the case or sooner if a hardship license is authorized by the Registry.

Any drunk driving defendant who fails to comply with the conditions of probation, will be brought back before the court for a violation of probation hearing and he or she may face the possibility of incarceration or some other consequence, such as a 1 year license suspension, for a probation violation.

If all of the conditions of probation have been met satisfactorily, the probation supervision will be terminated and the defendant will be discharged.

Hardship Licenses for DUI 3rd Offenders

If you are a Massachusetts resident with 3 DUI convictions, you will have an 8 year OUI 3rd offense license revocation. You can be considered for a hardship license. However, you will likely be denied at the Registry and forced to go before the Board of Appeal. The Registry requires completion of a specific 90 day residential (in-patient) alcohol program as a condition for the issuance of a 3rd offender hardship license and few applicants have this required program.

Fortunately, the Board of Appeal can grant you a hardship license even if the Registry initially refuses to so. Massachusetts law gives the Board the legal authority to order the Registry to issue a license. Getting one of these orders from the appeals board will require scheduling and attending an evidentiary hearing before the 3 member Board. The Board members will be looking for certain documentation and information showing that the Appellant has a legitimate need to drive and his or her alcohol or drug issues have been brought under control such that granting a license would not represent a threat to public safety.

It is strongly recommended to have a lawyer represent you at the Board of Appeal because this is often your one and only opportunity to be granted hardship relief. If the Board denies your appeal, you may be forced to serve the remainder of your revocation period with no driver’s license. This often occurs because the person seeking hardship relief is unable to demonstrate, to the Board’s satisfaction, that he or she qualifies for relief and that any alcohol or substance abuse problem is being effectively addressed so that there is a low probability of relapse or recidivism.

There are many other things that can derail a hardship license appeal such as recent evidence of operation, unpaid child support, being suspended in another state, unresolved criminal charges, open cases, active warrants or defaults, insufficient documentation regarding alcohol or drug treatment, inadequate “sober time,” and/or violations of terms and conditions of probation.

If you are facing an 8 year license revocation as a third offender, please contact my office to discuss your case and how a hardship license attorney may be able to help you get back on the road, so that you can go to work and continue to support yourself and your family.

No Hardship License for Child Support Suspension – No Exceptions

license_suspensionIf you owe child support to the Massachusetts Department of Revenue, you may be at risk of having your driver’s license indefinitely revoked by the Registry of Motor Vehicles. G.L. c. 90, § 22(g) requires MassDOT to indefinitely and automatically revoke a person’s driver’s license once the Massachusetts DOR has made a final determination regarding child support delinquency and the delinquent amount due remains unpaid. The law provides no right to a Registry hearing regarding this type of license revocation. Instead, an appeal hearing can be held at the Mass. Dept. of Revenue. This DOR Child Support Enforcement (CSE) hearing, which is held pursuant to G.L. c. 119A § 16 is the only avenue available to contest this type of mandatory license revocation. Absolutely no hardship license is available while a non-payment of child support revocation is in effect and there are no exceptions to this rule.  Neither the Registry nor the Division of Insurance Board of Appeal will grant hardship relief for this type of license loss and it makes no sense to hire a Registry lawyer to fight this type of suspension.

Child support arrearages are often the result of unfavorable divorce or other probate and family court judgments. The best away to avoid this type of situation is to hire the best divorce lawyer you can find, such as Attorney Mary Jo Hart, whose office is located at 290 West Main Street in Northborough, Massachusetts.

Once you have addressed the delinquency with the Child Support Enforcement Unit of the Massachusetts Dept. of Revenue (DOR), your license will not automatically be reinstated. Instead, you must pay a $100.00 reinstatement fee to resolve the indefinite revocation. The DOR is supposed to electronically notify the RMV that the delinquency has been addressed. If this does not happen automatically, you can bring a copy of the DOR release to a Registry Hearings Officer for entry into the MassDOT computer system.

Again, do not bother trying to get a hardship license if the Mass. DOR has revoked your license. No hardship licenses are available in this situation and, unfortunately, there are absolutely no exceptions. Instead, you must address the issue through the state Department of Revenue.

Senate to Debate Ignition Interlock License Bill

On Saturday, July 23, 2016 the Massachusetts State Senate is scheduled to debate a Bill which would remove the waiting periods for hardship licenses and allow those who refused to submit to a chemical test or those who fail a breathalyzer test to immediately obtain ignition-interlock-restricted licenses.

If passed, the law will also allow those convicted of DUI, DUI causing serious bodily injury, and Motor Vehicle Homicide involving alcohol, to appeal their licenses suspensions to the Registry of Motor Vehicles and be considered for full time license reinstatements, without having to serve any minimum-mandatory suspension periods. Any license issued under this law would have a mandatory ignition interlock device (IID) requirement.

Under the proposed legislation, the Registry retains the authority to establish requirements and restrictions in addition to mandatory use of the IID. The proposed legislation requires completion of any jail or prison sentence as well as enrollment in an approved alcohol education program.

For those DUI offenders who are on probation, any violation of the terms and conditions of probation would result in the immediate revocation of the ignition interlock license.

Currently, repeat DUI offenders in Massachusetts are required to install a certified ignition interlock device in any vehicle which the repeat offender owns, leases, or operates. This law appears to remove that requirement and it only requires IID installation in any vehicle which the drunk driving offender operates. Therefore, it appears possible for a driver with an ignition interlock license to be able to legally own and lease a vehicle not equipped with a certified IID, so long as the offender does not drive that vehicle.

If enacted, this legislation will allow repeat DUI offenders to be considered for ignition interlock licenses regardless of the number of prior drunk driving convictions the offender has. It also makes ignition interlock licenses available to those who have been convicted of vehicular homicide and those who have permanently lost their driving privileges due to breathalyzer refusals with multiple prior operating under the influence convictions.

Once the Bill is passed in the Senate, it still needs to be passed in the Massachusetts House of Representatives and signed by the Governor. Assuming that it passes and is enacted, it is scheduled to take effect on January 1st of next year.

Common Hardship License Denial Reasons

There are many reasons why you may be denied a hardship license either at the Registry of Motor Vehicles or the Board of Appeal. Some denial reasons include: recent evidence of operating after suspension, the lack of adequate paperwork or documentary evidence, recent criminal activity, probation violations, a high breathalyzer reading, prior hardship relief, a high risk of recidivism / relapse, failure to satisfy treatment goals, a court-ordered license suspension, being blocked in the National Driver Register (NDR) and an inadequate showing of hardship.

Effective case preparation is essential to avoid being denied a hardship license for one of the above-listed reasons. One of the services that my office provides to our clients is a complete review of your situation prior to your Board of Appeal hearing. We work to anticipate and address potential problems and pitfalls as part of a case screening process. This will reduce your chances of being refused relief and increase your chances of success before the Board.

You should satisfy all unpaid obligations prior to your hearing before the Board of Appeal. This includes parking tickets, excise tax, and registry defaults. Any relief afforded will be contingent upon satisfying these obligations and paying them in advance of your hearing shows responsibility and that you are serious about obtaining a hardship license.

You should be prepared to explain anything that appears on your criminal record and any open or closed restraining orders. The Registry’s advocate and the Board members will be on the lookout for anything that suggests an alcohol problem or substance abuse issue, even if it does not relate to the operation of a motor vehicle.

Between the time your appeal is filed and your hearing is scheduled, you will have time to review your driving record, criminal record, Registry documents and your court records. My office can assist with this review as part of the case preparation process. Do not take a chance before the Board of Appeal without adequate preparation. Appearing unprepared could result in denial which would require you to serve the full suspension with no relief.

No Hardship Available for Immediate Threat Revocation

Lately, my office has received numerous hardship license inquiries from people who have had their licenses indefinitely taken away due to Immediate Threat Medical and Complaint Medical revocations. Unfortunately, under these circumstances, no hardship or Cinderella license is available. The rationale for denying hardship relief on immediate threat and medical suspensions is that if a particular driver represents a danger or threat to public safety, he or she should not be driving at all. Therefore, the only way to regain your right to drive is to obtain a full license reinstatement.

In many cases, as soon as a driver is notified that the Registry of Motor Vehicles has indefinitely revoked his or her right to operate due to an immediate threat medical complaint, the driver asks his or her physician to write a letter to the Registry stating that the person is medically fit to safely operate a motor vehicle. This is the wrong approach. The Registry has specific forms that address medical problems, psychological and mental health issues, vision, and loss of consciousness. Instead of writing a generic letter, the driver’s treating physician, psychiatrist, optometrist, or psychiatric nurse practitioner should complete the appropriate forms. Additionally, the medical professional should only complete the forms after he or she has carefully read the immediate threat complaint. A letter written or form completed by a treatment provider who is unfamiliar with the facts and circumstances alleged in the complaint will carry little to no weight at a reinstatement hearing.

Dealing with immediate threat and complaint medical suspensions can be frustrating and confusing. Hiring a lawyer can simplify the process and increase your chances of getting your Massachusetts Driver’s License fully reinstated. The first step in these situations is to obtain a copy of the report which was filed with the Registry. In most cases, these reports are filed by police officers who witness dangerous driving, accidents, or other incidents which give rise to a safety concern. Although these indefinite license suspensions are not supposed to be punitive, getting them resolved can often be difficult and time consuming. The Registry errs on the side of caution and hearings officers are largely unsympathetic regarding the difficulties associated with the unexpected loss of a driver’s license.

Surchargeable Events License Suspensions

If you receive a letter indicating that the Massachusetts Registry of Motor Vehicles intends to suspend your Driver’s License and/or right to operate a motor vehicle, I invite you to contact my office for a free review of your situation. Depending on your driving record, you may be able to avoid the loss of your license or right to drive.

If you receive a notice of intent to suspend for thee surchargeable incidents, you can prevent the indefinite license suspension from going into effect if you take and pass an approved Driver Retraining Program within 90 days of issuance of the notice of intent to suspend. If the suspension is valid, and you fail to complete the required course in time, G.L. c. 175 § 113B authorizes the RMV to indefinitely suspend your license and right to drive in the Commonwealth of Massachusetts. The suspension will remain in place until you successfully complete the National Safety Council (NSC) driver re-training program. If you are required to complete the class to avoid the loss of your license, within 10 days of receipt of the Registry’s suspension notice, the NSC will send a registration packet to the mailing address which is on file with the Registry. If you have multiple surchargeable event suspensions, the Registry may require you to take the class several times. You may be able to take the course on-line, after completing it in person.

Taking the course will not prevent a 60 suspension for 7 surchargeable events or a 4 year Habitual Traffic Offender Revocation. If you are facing one of these, you should contact a lawyer for a free consultation and review of your situation. It is sometimes possible to completely avoid these license losses, shorten their duration, or get a limited hardship license which allows you to legally operate for 12 hours a day.

Once your license is suspended for revoked for surchargeable events, you will be required to pay a $100.00 reinstatement fee. If your license is revoked under the Massachusetts Habitual Traffic Offender Statute, G.L. c. 90 § 22F, you will be required to pay a $500.00 reinstatement fee.

Most importantly, if you have received a suspension notice, you do have the right to a hearing and you have the right to be represented by an attorney at that hearing. The Registry holds hearings on a walk-in basis at Customer Service Centers located in Braintree, Lawrence, Springfield, Worcester and 136 Blackstone Street, Boston, 3rd floor. If you have questions regarding a license loss, you can contact the Suspension Department of the Mass. RMV at 857-368-8200. The Registry’s general customer service number is 857-368-8000.