Breath testing in Massachusetts Operating Under the Influence cases has been called into question by the courts. However, license suspensions based on refusals to submit to breath tests have been regularly upheld by the Registry of Motor Vehicles.
In the case of Commonwealth v. Ananias, Docket No: 1248-CR-1075 (February 16, 2017 Order, Brennan, J., Concord District Court), the Court determined that blood alcohol results which were obtained by Draeger Alcotest 9510 breath test devices which were last calibrated between June of 2011 and September 14, 2014 are presumptively excluded from evidence in Massachusetts DUI trials.
In connection with this litigation, it was discovered that the Massachusetts Office of Alcohol Testing (OAT) of the Department of State Police withheld court ordered discovery and exculpatory information regarding breathalyzer calibration and certification. These discoveries and the court’s ruling in Commonwealth v. Ananias have the potential to change the landscape of many drunk driving prosecutions, especially those based on breathalyzer readings, which may be inadmissible.
The flaws in the breath testing process may cause those offered a breath test to refuse to take it. However, notwithstanding issues surrounding breath tests in Massachusetts, the Registry of Motor Vehicles will impose 6 month, 3 year, 5 year, and lifetime revocations for those who refuse to submit to breathalyzer tests after being arrested for Operating Under the Influence of Liquor.
Anyone who has lost his or her driver’s license due to a chemical test refusal (CTR), has the right to appeal the suspension by appearing before a hearing officer at the Boston Office of the Registry of Motor Vehicles during regular business hours. The refusal appeal must be filed within fifteen (15) days of the breathalyzer refusal suspension. Adverse RMV decisions must be appealed to the appropriate District Court and adverse District Court decisions can be appealed to Superior Court. Strict rules and filing deadlines govern these appeals.
Unfortunately, except for first offenders and second chance first offenders, no hardship, work, or par-time, temporary, or Cinderella license are available while refusal suspensions are in effect and there are no exceptions to this rule. The Board of Appeal will not consider Appellants for the issuance of a DUI hardship license until the refusal suspension has been served and the DUI suspension has commenced.