Appealing a 5 year Chemical Test Refusal Suspension

Here’s a situation involving a 5 year breathalyzer refusal suspension.

I’m contacting you to seek your assistance in getting my license reinstated, at least  to some degree if possible. Living and working without the ability to drive is very challenging under these circumstances.

My story is as follows: Nearly a year ago to the day I was pulled over. The police officer walked up to my window as I was searching for my valid registration. It wasn’t located in the glove box as I had needed it for insurance purposes earlier in the week. The officer mentioned this in her police report as me talking away from her which was not the case at all. Upon locating the valid registration in my center console the officer took my ID and asked if I had been drinking to which I replied I had a couple. She went back to her vehicle returning however a short time later.

At that point she asked me to step out of my vehicle and led me away from the scene to a darker area on a slope. Still not knowing why I had been pulled over in the first place she immediately began conducting a field sobriety test. She began to explain the walk, pivot and return test of which I completed without issue. This was the first point where I noticed the officer’s irritation.

She then began the eye test asking me to follow her pen. I obliged however her irritation rose when she kept yelling to me to follow the pen. I was following her instructions however the pen was pulled out of my peripheral view negating my ability to look at it without moving my head. As she completed this test my irritation of the situation rose as the officer was rude and unprofessional.

She explained the final test, I had to raise my leg up 6 inches and count of by 1000-s until she told me to stop. I carried through to 18 and stopped out of frustration that the officer was obviously just going to leave me hanging up there. She yelled at me again for stopping so I resumed until she stopped the test several seconds later. At this point my frustration level was at its peak. She led us back to our vehicles where she instructed a second officer to ready the roadside breath test to which I said don’t bother. Whether that was the right thing to do or not didn’t matter at the time as her un-professionalism and rudeness left me frustrated.

She then arrested me for DUI and at that time I asked her why she pulled me over. She said for marker light violation. Which is a complete fabrication as all the lights on my vehicle were operational at the time. At the station I was not given the option of taking the breathalyzer, not provided with any explanation as to the consequences of not doing so and no documentation for me to sign off on refusing. I was released on PR as soon as booking was completed. I ended up finding out the next day the suspension would be 5 years long.  As there was no mention by the officer of blood shot eyes, slurred speech, unsteadiness on my feet, odor of alcohol, etc. I wasn’t sure the exit order was valid or legal however my attorney didn’t seek suppression during pre trial. My case at any rate was dismissed this past May as the arresting officer had been terminated from the department for her mishandling of dui arrests. Based upon my view of the exit order I wanted to appeal to the registry however by the time I got the hearing notice from my Post Office Box, the 15 day period had since expired. I hadn’t realized there was a limit at the time to which to appeal.

My life a year later has changed profoundly as I am embarking on a new career and bringing a child into the world both of which require my ability to drive.

The Answer:

You can challenge your breathalyzer refusal suspension only between 9:00 A.M. and 3:00 P.M. within fifteen (15) days of your DUI arrest. The Registry only conducts breathalyzer refusal hearings at the Boston Branch which is located at 630 Washington Street and scheduled to move to 136 Blackstone Street in September of 2014. You do not need an appointment for a chemical test refusal (CTR) hearing.  You must appear in person and you have the right to be represented by a lawyer. You can present any witnesses, documents, or other evidence you wish to have considered. Once the hearing record is closed, you cannot present any additional evidence. The law does not provide for any extension of this 15 day appeal period, and no letter, phone calls, or other communication to the RMV will serve to extend the CTR appeal period beyond the 15 days or allow for a hearing to be conducted at any location other than the Boston Branch of the Registry.

Unfortunately, absolutely no hardship licenses or Cinderella or work licenses are authorized by law during a breathalyzer refusal suspension unless he Operating Under the Influence charge has been properly and legally resolved pursuant to G.L. c. 90 § 24D, which applies only to first offenders or “second chance first offenders.” Melanie’s law requires that the CTR suspension is served prior to any resulting DUI suspension. This means that the suspensions are served consecutively and not concurrently.

In the case listed above, the only recourse is to petition the District Court Judge who presided over the OUI trial for a return of the driver’s license, because the OUI charge was dismissed. There is a presumption in favor of returning the license, but it is not automatic. There is no other way to appeal the suspension so long after it was imposed and there is no possibility of a hardship license.