On October 28, 2005 the Legislature enacted a broad amendment to General Law Chapter 90, section 24. The amendment, Chapter 122 of the Acts of 20O5, now known as “Melanie’s Law”, was enacted on an “emergency basis to increase penalties for drunk drivers in the Commonwealth… necessary for the immediate preservation of the public safety.” One of the major amendments to Chapter 90 can be found in Section 24(1 )(f)(1) which requires longer license suspension periods for persons who refuse to submit to a chemical analysis of their breath at the time of arrest, and who have been previously convicted of an OUI. For example, if an individual has a prior DUI and refuses a breath test at the time of arrest, the suspension time is increased from 180 days to three years. Two prior drunk driving convictions will increase the penalty to five years, until the progressive sanctions escalate into a lifetime loss for someone with three prior DUIs on his or her record.

The progressive penalty for refusing the breathalyzer was emphasized further by the Legislature’s mandate in Chapter 90, section (1)(f)(1) that these suspensions should run consecutively and not concurrently with any OUI revocation, and there shall be no hardship license issued on a chemical test refusal suspension. In addition, the Legislature removed the prior fifteen-day “waiting period” and inserted language that the license suspension shall become effective immediately upon receipt of the notification of suspension from the police.

The breathalyzer refusal suspension remains effective as a separate and distinct administrative license suspension, even if the individual is adjudicated not guilty of the DUI offense. In those cases, one potential avenue of relief is a hearing before the district court where the defendant can petition for reinstatement. The judge can grant relief only if the prosecution is unable to establish by a fair preponderance of the evidence that restoration would likely endanger the public.

In certain circumstances, breathalyzer refusal suspensions can be appealed to the Division of Insurance Board of Appeal and in all cases, breathalyzer refusal suspensions can be appealed to the Driver Control Unit of the Registry of Motor Vehicles in Boston. However, direct appeals to the Registry must be filed within fifteen (15) days of the suspension. Unfavorable breathalyzer refusal suspension decisions can be appealed to the District Court having jurisdiction over the underlying DUI offense. If you are facing or serving a chemical test refusal or breathalyzer refusal license suspension, you should contact a lawyer for a free consultation and case review. The Registry charges a reinstatement fee of $500.00 to reinstate licenses which are suspended for breathalyzer or chemical test refusals.