CWOFs & Breathalzyer Refusal Appeals: “Loophole” in Melanie’s Law

NEW BREATH TESTFor years prior to December 10, 2009, the Board of Appeal had been ordering the Registry to reduce breathalyzer refusal suspensions which were increased based on the driver having a prior DUI which was resolved by an admission to sufficient facts and continuance without a finding (CWOF). The basis for reducing these license suspensions was that a CWOF was not a conviction and the Massachusetts implied consent law required convictions.

On December 10, 2009, the Registry filed a legal memorandum opposing the reductions, claiming that admissions to sufficient facts were pleas of guilty and, therefore, convictions. The Registry convinced the Board of Appeal to stop reducing breath test refusal suspensions and, not surprisingly, the issue was appealed.

Aggrieved drivers challenged the Board’s departure from its prior practice of reducing CTR suspensions that were enhanced based on an admission to sufficient facts, a CWOF and dismissal.  The first challenge resulted in a judge finding that there were “problems of a legal nature associated with the agency’s final determination” that a CWOF counts as a conviction, and ultimately decided that “the legislature has not granted the Registry of Motor Vehicles the authority to administratively suspend the plaintiff’s driver[’]s license for the period of time it seeks to do so in this case.”  Accordingly, the court held “the agency decision upholding the Registry’s action violates Ch. 30A s. 14 in that it is ‘in excess of (the) statutory authority’ granted to the agency by the legislature.”
Numerous Superior Court Judges agreed with me, that an admission to sufficient facts and resulting CWOF was not a “conviction” under the Massachusetts Breathalyzer Refusal law. However, in the case of Paul Souza v. Registrar of Motor  Vehicles, a Norfolk Superior Court Judge sided with the Registry and refused to order the reduction of a 3 year chemical test refusal suspension to 180 days. This ruling was appealed to the Massachusetts Supreme Judicial Court and I had the privilege of submitting an amicus brief to the Court.

On Thursday, May 17, 2012, the Mass. SJC decided that I was right and the Registry was wrong. Admissions to sufficient facts and CWOFs cannot be used to increase Massachusetts chemical test refusal suspensions. The Boston Herald reported that “Registrar of Motor Vehicles Rachel Kaprielian said the agency is reviewing the decision ‘and determining the administrative course of action to be taken as a result.’” The day after the decision was released, Senator Bruce Tarr filed a bill with the Massachusetts Legislature  to make CWOFs count towards breath test refusal suspensions. It is scheduled to be debated in the senate next week. Lawmakers claim that the Court’s ruling has created a “loophole” in Melanie’s Law, which they need to close.