Breathalyzer & Chemical Test Refusal Suspensions Reversed

SOUZA_CWOF_REGISTRYIf the RMV suspended or revoked your license for a chemical test refusal (CTR), which is also known as a breathalyzer refusal, for more than 180 days, and you have a previous DUI, the Registry may have improperly suspended your license.

The Registry has been using prior DUI cases which were resolved not by convictions, but by admissions to sufficient facts and continuances without findings to extend breathalyzer refusal suspensions from the 180 day minimum to 3 years, 5 years, and life.

The use of a prior DUI case which was resolved by an admission to sufficient facts and continuance without a finding CWOF to extend a chemical test refusal suspension appears to be unlawful. Indeed, on April 5, 2006, Lynda M. Connolly, Chief Justice of the District Court, issued a memorandum to District Court Judges, Clerk-Magistrates, and Chief Probation Officers regarding “Chapter 122 of the Acts of 2005: ‘Melanie’s Law.’”  In it she stated, “[t]he extended periods of suspension require a previous conviction; a program assignment, as a prior drunk driving disposition, will not trigger extended test refusal suspension.”

Nevertheless, the Registry counts admissions to sufficient facts and CWOFs as convictions, to impose enhanced suspension penalties on those who exercise their legal rights to refuse to submit to a breathalyzer test. Seven Massachusetts Superior Court judges have ruled that reliance on prior CWOFs to increase chemical test refusal suspensions is legally wrong and they have ordered the Registry to reduce these license suspensions.  In ruling against the Registry, these judges have ruled that if the Legislature wanted prior OUI cases which were continued without a finding and eventually dismissed to count as OUI “convictions,” for purposes of the implied consent law, it would have said so.

There are numerous cases regarding this issue pending in various Superior Courts and the highest court in Massachusetts, the Supreme Judicial Court is scheduled to ultimately rule on the legality of treating prior CWOFs as convictions. My office has been heavily involved in this issue from the start and I was pleased to have been able to file an appellate brief on this important legal issue.

If your license was suspended or revoked due to a breathalyzer or chemical test refusal  for 3 years, 5 years, or life, I urge you to contact my office for a free review if your situation. You may be entitled to credit for time served on your refusal suspension to be applied to any DUI suspension. You may also be entitled to a full license reinstatement.

Attorney Brian E. Simoneau

508-656-0057

E-Mail: brian@simoneau.com