Breathalyzer Refusal Appeal Filed Too Late

breathalzyer_refusal_lawyerThe case of Dascoli v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, 80 Mass. App. Ct. 1111 (2011), illustrates the importance of appealing chemical test refusal suspensions to the Registry in Boston within the statutory 15 day appeal period. Dascoli claimed that the police gave him incorrect information in connection with this decision to refuse to submit to a breath test as a result of his being arrested for OUI 3rd offense. He alleged that the police informed him that his license would be suspended for 18 months instead of the statutorily correct 5 year period.

This may have been a very good reason to reverse the 5 year chemical test refusal suspension. However, Dascoli failed to appeal the suspension to the Registry of Motor Vehicles within 15 days from its imposition. Instead, he appealed in the first instance to the Board of Appeal on Motor Vehicle Liability Policies and Bonds of the Division of Insurance. The Board voted to affirm the 5 year chemical test refusal suspension on the grounds that Dascoli should have appealed to the Registry and then, if necessary, to the District Court.

Essex Superior Court Justice Howard Whitehead agreed with the Board’s decision and ruled as follows: “it may well be that the petitioner’s suspension was invalid as the result of incorrect information provided to him at the time of his refusal. However, within two days, the Registrar sent notice to him that should have alerted him to the fact that he had grounds for appeal (i.e. the actual suspension was longer than stated at the time of the refusal). The petitioner did not appeal within the requisite 15 days and, hence, deprived the Board of the power to correct any error.” The Appeals Court agreed, ruling that “the motor vehicle board of appeal, before which the plaintiff brought the instant appeal of the suspension, has no authority under the statute to grant the plaintiff the relief he seeks.”

Had Dascoli consulted with a DUI lawyer or a lawyer specializing in license suspensions, he would have learned that time was of the essence and he may very well be driving now, instead of serving a 5 year chemical test refusal revocation which was allegedly predicated on erroneous information.