Breathalyzer Refusals & the Hardship License Waiting Period

In Massachusetts Hardship License cases involving breathalyzer refusal suspensions, both the Registry of Motor Vehicles and Board of Appeal generally require that a hardship license candidate serves both the entire chemical test refusal suspension and the required minimum waiting period for the OUI suspension.

As background, Massachusetts DUI Law requires 2nd offenders to serve one (1) year of the DUI suspension, OUI 3rd offenders must serve two (2) years of the DUI license suspension, and 4th offenders must serve five (5) years of the OUI suspension. Additionally, 2nd offenders who refuse the breathalyzer will be suspended for 3 years, 3rd offenders will be suspended for 5 years, and 4th offenders will be suspended for life. These breathalyzer refusal suspensions automatically run from the moment of refusal and any DUI suspension does not start running until after the breathalyzer refusal suspension is served. Stated differently, breathalyzer refusal suspensions run consecutively and not concurrently with OUI suspensions.

For example, if a hardship license applicant has one prior DUI conviction, his license will be revoked for three (3) years for the breathalyzer refusal and two (2) years for the DUI conviction. The Board of Appeal and Mass. RMV would therefore require that the applicant serve the full three (3) years of the breathalyzer refusal suspension and one (1) year of the DUI suspension, for a total of four (4) years, prior to considering the applicant for a hardship license. As I explain herein, this is legally incorrect. The applicant is entitled for hardship consideration immediately after completing the 3 year breathalyzer refusal suspension.

The DUI Hardship License Law clearly states that 2nd offenders are eligible for consideration 1 year after conviction and 3rd offenders can apply 2 years after conviction. Therefore, in cases where the hardship license applicant serves either a 3 or 5 year breathalyzer refusal suspension, he or she can legally be considered for a hardship license immediately upon the termination of the refusal suspension.  There is absolutely no legal requirement that the hardship license candidate serve additional suspension time. This is the case because the breathalyzer refusal suspension would be over, as the law requires, and the hardship appeal would be filed more than 1 year after conviction for 2nd offenders and more than 2 years after conviction for 3rd offenders.

Additionally, it may be possible to successfully challenge the breathalyzer refusal suspension, so that a hardship license or the reinstatement of a full license can be obtained. Please contact me to find out about this.

Finally, it is important to note that the granting of a Massachusetts Hardship License is far from automatic, especially in 2nd, 3rd, and 4th offender cases. Both the Mass. RMV and the Board of Appeal are reluctant to put drivers on the road who have had multiple OUI incidents on their records. The more time served, the better the chances are that the Board of Appeal or the Registry will grant hardship relief. Therefore, even if a candidate is legally entitled to hardship consideration, depending on the particular facts and circumstances of the case, it may be advisable to serve additional time before filing for a Hardship License Hearing. This will depend on a variety of factors regarding risk to public safety, likelihood of recidivism, and need to drive. Please contact me if you have any questions regarding this important topic.