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Suspension Appeals for Constructive Breathalyzer Refusals

Melanie's Law was enacted in October 2005, as comprehensive revision of the Massachusetts drunk driving laws. Its statutory purpose was to better protect the public through stricter penalties, restrictions, and sanctions imposed on those suspected or convicted of operating under the influence. One means of doing so was to impose license suspensions ranging from 6 months to lifetime for anyone arrested for DUI who refuses to submit to a chemical blood or breath test.

In order to effectuate the purpose of Melanie’s Law, the Massachusetts breathalyzer refusal regulations require that a person arrested for DUI provide 2 valid breath samples for a chemical breath test to be considered valid and admissible as evidence of a driver’s blood alcohol content. The failure to provide the required 2 breath samples may be considered a “constructive refusal” which will trigger a license suspension under the implied consent law.

Specifically, Massachusetts breath test regulations provide that “if the arrestee fails to supply the required breath samples upon request, the test shall be terminated and it shall be noted as a refusal.” Absent this requirement, someone arrested for OUI could avoid an automatic chemical test refusal suspension by agreeing to submit to the breath test and then no supplying the 2 required breath samples during the actual test. This would allow the person to escape the consequences of the refusal and deny the prosecution the blood alcohol evidence that the breath test is supposed to provide. Refusing to provide a sufficient breath sample to register a reading is known as a “constructive refusal.” Some people who are arrested for DUI may try to subvert the breath test by not blowing hard enough, not blowing long enough, or blowing with an open mouth so not enough deep lung air gets into the breathalyzer. Therefore, a deliberately defiant act on the part of the driver is not required to support a ruling against the driver at a Registry breathalyzer refusal hearing.

However, there may be compelling and factual medical reasons which would prevent a person from successfully completing a breath test, which requires a prolonged exhalation of deep lung air. In order to have any chance at winning a chemical test refusal appeal hearing, you must provide medical or other acceptable third party documentation to substantiate the medical condition. Unsubstantiated self-serving claims of an inability to provide the breath samples due to anxiety, nervousness, stress, difficulty breathing, and similar excuses are generally rejected as not credible.

Once a valid “Report of Chemical Test Refusal” which meets the statutory requirements is transmitted to the Registry of Motor Vehicles, the burden shifts to the person appealing the refusal suspension to produce evidence indicating that he or she did not refuse to submit to the breathalyzer test. Therefore, in a Massachusetts chemical test refusal revocation hearing, a Registry hearings officer is permitted to draw an adverse inference against the person appealing the suspension if the person fails to provide an explanation for the insufficient breath samples. This means that the hearings officer is entitled to conclude that a refusal was deliberate and intentional if the person challenging the refusal fails to provide exculpatory information.

A lawyer may help you prove your case at breathalyzer refusal suspension hearing, which must be requested in-person at the Boston Branch of the Registry of Motor Vehicles, during normal business hours, within fifteen (15) days of the breath test refusal suspension.