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Breathalyzer Refusal Suspension Appeals

In a Massachusetts DUI trial, evidence that the person accused of operating under the influence of alcohol refused to submit to a breathalyzer or blood test is completely inadmissible. This means that a jury is not allowed to hear breathalyzer refusal evidence and the Assistant District Attorney who is prosecuting the case will proactively inform the police witnesses that they are not to mention the refusal, as it may cause a mistrial.

The rationale for excluding breathalyzer refusals in Massachusetts criminal trials is that admitting such evidence violates the privilege against self-incrimination under Article 12 of the Declaration of Rights the Massachusetts State Constitution. The obvious benefit to refusing to take a breathalyzer or chemical test is that it denies the prosecution evidence which could be used to convict you of operating under the influence.

The downside to refusing to submit to a breath or blood test is that, under the implied consent law, the Registry of Motor Vehicles will automatically suspend your license or right to operate for a minimum of 180 days, for a first offense if you are 21 or older, 3 years for a 2nd offense or if you are 21 or under, 5 years for a 3rd DUI offense, and life for refusing the breathalyzer with 3 prior OUI convictions, regardless of where or when the prior convictions occurred. Fortunately, Massachusetts Chemical Test Refusal Suspensions can be appealed to the Registry of Motor Vehicles in Boston and then, if necessary, to the District Court having jurisdiction over the OUI case. Adverse District Court decisions in breathalyzer refusal suspension cases can be appealed to Superior Court pursuant to G.L. c. 249 § 4.

Most aspects of Mass. Chemical Test Refusal Suspensions must be appealed within fifteen days of the refusal. The CTR appeal must be filed during normal business hours at the Haymarket Registry Branch during regular business days. Only certain specially trained RMV hearings officers conduct these CTR suspension appeal hearings, which are limited in scope. Once the hearing is commenced, the hearings officer will request evidence from the police such as copies of reports, refusal forms, the statutory rights and consent form, booking room videos and electronic recordings (if any), and breathalyzer printouts. After the RMV hearing officer receives and reviews the evidence, the Appellant will be given an opportunity to review the evidence and file a responsive pleading. Once the evidence is closed, the hearing officer will take the matter under advisement and render a decision within 10 days.

Before a driver can be subject to the harsh Massachusetts Chemical Test Refusal penalties as a consequence for refusing a breathalyzer test, the driver must have been warned of the Chemical Test Refusal consequences by a police officer.  If the driver has not been properly informed that his or her license or right to drive will be suspended if the requested test is refused, then the breathalyzer refusal is deemed not to have been made knowingly and MassDOT should be prohibited from imposing a chemical test refusal suspension which ranges from 6 months to life.

However, the only information that a police officer is required to provide to a driver arrested for OUI is that his or her license or right to operate will be suspended for 180 days up to life, if the requested chemical test is refused. There is absolutely no requirement that the police officer state the precise  length of the applicable breathalyzer refusal suspension in order to comply with the legal duty imposed by the Massachusetts Implied Consent Law.

The Registry’s Board of Appeal will only hear a few narrow aspects of chemical test refusal suspensions appeals, as most aspects of Massachusetts breathalyzer refusal suspensions are appealable to the RMV, as explained above. Contact Attorney Simoneau for more information regarding whether you can appeal to the RMV or the Division of Insurance Board of Appeals.

Unless a DUI case was resolved pursuant to G.L. c. 90 § 24D, there is no hardship license available during a chemical test refusal suspension, either from the RMV or Board of Appeal. Also, the Registry can legally run chemical test refusal suspensions consecutively and not concurrently with OUI suspensions. Refusal to submit to a breath or blood test after being arrested for OUI counts as a disqualifying event for commercial drivers’ license (CDL) holders.

Attorney Simoneau was proud to have played a lead role in the case of Souza v. Registrar of Motor Vehicles, 462 Mass. 227 (2012), where the Massachusetts Supreme Judicial Court declared that the Registry’s method of calculating the length of chemical test refusal suspensions was invalid.

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