Chemical Test Refusal Appeal Q&A

Question: I have a few questions about Melanie’s Law. I was recently charged with O.U.I. in Massachusetts and refused the Breath Test. I missed the 15 day window to appeal the BTR. Is there any way to get an appeal hearing? That being said there are a few thing that i feel should be considered.My charge was a result of a single car motor vehicle accident. I have been getting treated by a doctoer for Vertigo,Light headedness and Dizziness.I was taking medication for anxiety, and I have sleep apnea (now being treated)all in my medical records prior to the accident and is what caused the accident.

As a result of the accident I was knocked out cold, got a cracked skull(left temporal bone), released my bladder and got a concussion. The police didn’t offer any medical treatment and was more concerned about making an arrest. The police claim that I failed a field sobriety test and refused the breath test. I did consume 2 alcoholic beverage that night. It was 1 Sam Adams ale and 1 White Russian(store bought).

The night of the accident, I have no recollection of the crash or any police presence. I was not of sound mind or judgement due to my injuries.I apparently signed the BTR and Medical Refusal form but do not remember doing so. I believe I passed out once or twice while I was handcuffed to a bench at the police station.

I feel that the police departments first priority should be the safety of the people and they should have called an ambulance. I would have been brought to an E.R. where blood could of been drawn and prooved that my B.A.L. was well under the legal limit. I also would of gotten the medical attention that I obviously needed.

I didn’t get the letter from the R.M.V. stating that I had a fifteen day window to appeal because it went to my future ex-wife at my old house and she didn’t hand it to me until after the 15 days(opened). I also have my medical records that support this information and photos of my head hours after the crash that clearly show abnormalities and disfigurement.

I did get an O.U.I. charge in 2009 and it was CWOF. I am now learning that under Melanie’s law that this will count as a 2nd offense and it will be 3 years for BTR. I am fairly confident that the O.U.I. charge will get defeated in a courtroom if not thrown out all together. I want to know if there is any way to get an appeal now for the Breath Test Refusal?

To not have a Drivers License for three years because I have or had a medical condition or wasn’t properly dealt with by the police is an injustice. I believe I should get an appeal hearing considering the circumstances of this case. Any help would be greatly appreciated.

Answer: Chemical Test Refusal (CTR) Appeals are governed by G.L. c. 90 § 24(1)(g), which states that “any person whose license, permit or right to operate has been suspended under subparagraph (1) of paragraph (f) shall, within fifteen days of suspension, be entitled to a hearing before the registrar…” Therefore, you only had 15 days to appeal the 3 year breath test refusal suspension. You were issued a notice of suspension at the time of your arrest which notified you of the refusal suspension and your right to appeal.Also, the fact that you didn’t get the suspension notice which the Registry mailed is not sufficient to get around the 15 day requirement. Under Massachusetts law, it was your responsibility to notify the Registry of your address change.Even if you won the chemical test refusal appeal, the Registry would probably revoke your license under the immediate threat law, because you have vertigo, light headedness, dizziness. anxiety, and sleep apnea. The Registry would say that someone involved in a single car accident who experienced a loss of consciousness, with those medical conditions, is a danger to public safety and should not be driving.

In a recent case, I won a 3 year chemical test refusal appeal and the same day the Registry reinstated my client’s license on the CTR, they revoked my client’s license under the immediate threat law. The letter states as follows:

Pursuant to your client’s CTR Appeal, I have carefully reviewed our record and have allowed your appeal. This in no way implies a determination that the Massachusetts State Police Department lacked reasonable grounds or acted improperly at any time during their interaction with you. Since the suspension has been cleared, the $500.00 reinstatement fee has been waived.

NOTE: This is in regard to your client’s suspension for a chemical test refusal, only. At the present time there is also an Immediate Threat suspension affecting the license and that must be resolved separately before the license or right to operate is restored.
I can see the same thing happening in your case.

Unfortunately, you cannot get a hardship license on a CTR suspension. Therefore, they only way to get your license reinstated is to get a not guilty on the 2nd offense DUI charge.