Breathalyzer Refusal Suspensions

Breathalyzer Refusal SuspensionIn accordance with the Massachusetts implied consent law, if you refuse to submit to a breath or blood test after being arrested for DUI in Massachusetts, your license will be suspended for a minimum of 180 days up to life. The length of the refusal suspension depends on your age and number of prior DUI convictions. Evidence showing that you refused to consent to a breathalyzer or blood test will not be admissible against you at your DWI trial. However, refusal evidence is admissible at any RMV hearing.

License suspension penalties for breathalyzer refusals only apply when a person is arrested for operating a motor vehicle while under the influence of intoxicating liquor. Refusal license suspension penalties do not apply when a person is arrested for DUI drugs. Also, refusal suspension penalties can only be imposed after the arrestee was advised that his license, learner’s permit, or right to operate motor vehicles in Massachusetts will be suspended for a period of at least 6 months and up to a lifetime for the refusal.

If a person refuses to take a breathalyzer or blood test, the police are required to impound the vehicle used to commit the DUI for a 12-hour period, with the costs for the towing, storage and maintenance of the vehicle to be borne by the operator.

Chemical test refusal suspensions become effective immediately upon receipt of the notification of suspension from the police officer. These suspensions run consecutively and not concurrently. This means that they are “stacked” so that the refusal suspension will run first and any additional DUI suspension will not begin until the refusal suspension expires.

The police officer who receives the refusal is required to submit a report to the Mass. RMV within 24 hours of the refusal. The report must be made under the penalties of perjury and describe the grounds for the DUI arrest. It must state that the person refused and identify a witness to the refusal as well as the officer who requested the test.

Chemical Test Refusal (CTR) suspensions must be appealed to the Boston Branch of the Registry of Motor Vehicles, 136 Blackstone Street, Boston, MA, 3rd floor, during normal business hours on business days. Appeals must be filed within 15 days of the refusal. The police refusal report is considered prima facie evidence of the facts contained therein. Legal representation at these refusal hearings is strongly recommended.

Except in first offense DUI and “second chance first offense” DUI cases, the Registry will not grant any hardship, work, or Cinderella license while a breathalyzer refusal suspension is in effect. In repeat offense cases, this implied consent suspension must be served prior to hardship license consideration.

MA Breath Test Refusal Suspensions

The Massachusetts Registry of Motor Vehicles imposes license suspensions in varying lengths to penalize drivers who have refused to submit to a chemical breath or blood test, after having been arrested for operating under the influence. These license suspensions range in length from 6 months for first offenders 21 years of age or older, to lifetime for those with 3 prior drunk driving convictions or alcohol program assignments.

Under the Massachusetts implied consent law, in exchange for receiving a Driver’s License, Massachusetts residents agree to consent to a breath or blood test. A refusal to take such a test when arrested for DUI will result in an administrative license suspension. This suspension must be served first, prior to the service of any suspension resulting from the DUI conviction or program assignment. The law allows the Registry to “stack” these suspensions, meaning that the breathalyzer refusal suspension will be served first and the DUI suspension will be served afterwards. For example, a second offender in Massachusetts will have a 3 year breathalyzer refusal suspension which is followed by a 2 year DUI second offense suspension. Thus, the total suspension time is 5 years. 3 years for the refusal and 2 years for the DUI. Breath test refusal suspensions run consecutively in Massachusetts and this is authorized by law.

Unless you are a first offender or a “second chance first offender,” you cannot be considered for any type of work, hardship, or Cinderella license while a chemical test refusal suspension is in effect. There are absolutely no exceptions to this rule. This means that if your license has been revoked for life for refusing a breath or blood test with 3 prior DUI convictions or alcohol program assignments, you are permanently ineligible for any type of driver’s license. If you are a third offender, you must serve the 5 year refusal suspension before being considered and if you are a second offender, you must serve the 3 year refusal suspension prior to being considered for a hardship license.

If you hold a Commercial Driver’s License and you refused to take a breath or blood test you will have a separate CDL suspension, even if you were not operating a commercial motor vehicle at the time of your arrest. Two refusals or DUI convictions arising out of separate incidents will result in an automatic lifetime CDL revocation / disqualification.

You can appeal a breathalyzer refusal suspension within fifteen (15) days of the suspension by going before a hearing officer at the Registry’s main branch, during normal business hours, at 136 Blackstone Street in Boston. These chemical test refusal (CTR) appeals are granted only on limited grounds.

If the DUI charges are resolved in your favor, you have the right to a hearing before the judge who presided over the DUI trial to have the CTR suspension terminated early. The judge must make written findings and the prosecution has an opportunity to contest reinstatement on the grounds of public safety.

Operating After Suspension & Hardship Licensing

I recently received this inquiry from an individual who is attempting to obtain a hardship license.

Good afternoon, I have two oui of liquor. I went to trial last October for my second offense because I blew a .08 and lost. I’m in my first year of the two year suspension. I got arrested again in August for driving on a suspended license. I served 30 days in jail although the court only sentenced me to 10 days. I violated probation my first time. Did the two week program and have one more of after care classes. I drove a car 10 houses and my cousin told the cop I drove. I actually didn’t get arrested in the car I was already at a house. The cops came and arrested me. It’s along story. I was wondering if I could still get a hardship I live in the suburbs and it’s tough to get around. I just made very stupid decisons. I heard they take your license for an additional year and there is no way I could get a hardship I would have to wait the full two years. Is this true? If you could just give me a little feed back and if I am eligible after I complete my last class you could represent me. Thank you for your time.

Unfortunately, getting a hardship license with a recent Operating After Suspension charge on your record is extremely difficult. Expecting that the Board of Appeal would not authorize the issuance of a hardship license, I declined to represent the person. Lately, the Board has expressed a very negative opinion regarding those who make the very poor decision to drive while their license is suspended or revoked for DUI. Recent OAS charges will make getting hardship relief very difficult. Instead of driving while your license is under suspension you should apply for a hardship license, so that you can drive legally. In this case, the driver made no attempt to get a hardship license and now that he has been convicted of driving while suspended, it is likely too late.

Don’t Drive on a Suspended License!

One of my clients recently contacted me looking for a referral to a criminal defense lawyer. The client had an 8 year OUI 3rd offense revocation and I was working with the client to put together a package of documents for a hardship license hearing. We were preparing to go before the Board of Appeal once the client had the required documentation and had saved enough money for legal representation at the Board of Appeal, installation of the ignition interlock, and the $1,200.00 reinstatement fee which the Registry charges.

The client made the mistake of driving while her license was revoked for DUI and she got caught. This will disqualify her from being considered for any type of hardship relief for at least a year. Also, if she is convicted, the RMV will take her license for an additional year and she faces minimum mandatory jail time. Both Massachusetts courts and the Registry treat operating after suspension as a serious offense, especially when the person’s license was suspended for OUI. A case of this nature cannot be continued without a finding or filed. Furthermore, no sentence and be reduced or suspended until the defendant serves at least 60 days in jail.

The Board of Appeal sometimes interprets driving on a suspended license as evidence of a lack of respect for the law and recent convictions for OAS will make it very difficult to obtain a hardship license. In this particular case, the client’s actions have delayed her hardship license eligibility for at least a year, during which time there must be no evidence of operation. Even after having served an additional year, there are no guarantees that she will receive approval for a hardship license.

In a DUI case where the defendant is on probation, driving a motor vehicle may also result in a probation violation. This is because repeat DUI offenders are usually prohibited from driving as a special condition of probation. Any operation of a motor vehicle would violate this probation condition. Furthermore, getting arrested or charged with a new crime may also trigger a probation violation, for which there may be serious consequences.

As you can see, operating after suspension can be a serious issue, especially where the license was suspended for OUI. It may result in your arrest, violation of probation, disqualification for a hardship license, and the imposition of a mandatory jail sentence.

Your Mass. Driving Record Controls DUI Suspension Length

I recently received this inquiry:

I had a driving while under the influence of alcohol (DWI) in 2005. I pled out and received a CWOF (continuance without a finding). I recently had a DWI Drug offense and I was given a CWOF and the 24D alternative disposition. I was given 1 year of probation and the judge said license loss of 45 days. The court documents show a 45 day license suspension. I just received a letter from the Massachusetts RMV stating that my license was suspended for 2 years. Does the judge’s decision override the RMV decision? Am I able to appeal this suspension? Also, am I able to get a hardship license?

The answer is that the 2 year suspension is valid. In Massachusetts, DUI suspensions are based on the number of offenses appearing in the official records of the Registrar of Motor Vehicles. Here, the record shows that there was a DUI drugs case from 2005 which resulted in an admission to sufficient facts, CWOF, and substance abuse program assignment. For OUI suspension calculation purposes, this counts as a conviction.

With the prior program assignment on the defendant’s record, the judge’s order of a 45 day license suspension was invalid and unenforceable as a matter of law. The judge decided to treat the defendant as a first offender. However, the Registry is not bound by this. Instead, the Registry looks at the defendant’s driving record and counts the number, timing, and disposition of the prior operating under the influence offenses. All priors count, whether they are for OUI drugs or liquor.

Here, the law says that when someone is assigned to a drug or alcohol education program after an admission to sufficient facts in a DUI case, and they have a prior assignment to a program, the proper length of the suspension is 2 years, regardless of whatever the judge might order or if the court overlooked the prior offense and treated the defendant as a first offender. All that matters is the person’s DUI history.

Also, all second offenders are ignition interlock required and will have a “Z” restriction on their driver’s license. This restriction will be in place during any hardship license period and for a minimum of 2 years after the person’s license is full reinstated and the Registry removes the “H” restriction.

Of course, for your driving record to control the length of your new suspension, it must be accurate. Sometimes the Registry’s records are inaccurate and they can be refuted with court and probation records.  This is especially true when the Registry relies on old microfilmed records, many of which are illegible.

With a 2 year license revocation in place, the defendant is supposed to wait one (1) year prior to being considered for a hardship license. In cases where the need to drive is dire, it may be possible to get a hardship license without  waiting a full year. However, 6-9 months must be served as a minimum.

Finally, because this defendant is a second offender with only a first offender G.L. c. 90 § 24D substance abuse education program, he cannot receive a hardship license from MassDOT and he will have to appear before the 3 member Division of Insurance Board of Appeal for a hardship license. The Registry’s appeals board has the statutory authority to order the Registry to grant hardship licenses even where the appellant might not meet the Registry’s requirements. These orders are issued only after a formal evidentiary Board of Appeal hearing and representation by competent legal counsel is recommended.

Massachusetts Appeals Court Rules on Suspension Appeal Procedures

appeals_court_massIn the case of Commonwealth v. Bougiokas, which was decided on May 19, 2014, the Massachusetts Appeals Court announced the procedure to be followed to challenge the length of a license suspension for operating under the influence of alcohol or drugs. In the Bougiokas case, a repeat DUI offender, who happens to be an attorney, sought to appeal the length of his DUI license suspension through the court system. The Appeals Court ruled as follows:

As a result of a new trial on an OUI charge, Bougiokas’ license was suspended for one year, in addition to the 45 day suspension that he already “served” after receiving a § 24D disposition. He argued, before the Appeals Court, with considerable force that since this was still a first offense, the total length of his license suspension should have been limited to one year. The Appeals Court held that “this argument is not properly before us. The trial judge did not actually impose any license suspension. Instead, the defendant’s license suspension resulted by operation of law and administrative practice once the RMV received notice of the conviction. To the extent the defendant believed his license suspension should have been shorter, his potential recourse would have been to seek administrative relief from the RMV.”

This means that the proper course of action to challenge a license suspension is through the Registry of Motor Vehicles Hearing Process and, if necessary, the Board of Appeal of the Division of Insurance of the Office of Consumer Affairs and Business Regulation. The Board of Appeal has broad powers to reverse, modify, or annul any decision of the Registrar of Motor Vehicles, including those decisions pertaining to license suspensions and revocations.  The Appeals Board can also order MassDOT to grant hardship licenses in cases where the Registry initially refuses to so.

Appealing a license suspension or revocation in Massachusetts requires you to follow certain steps, the first of which is to obtain and thoroughly review your driver history. You should contact a lawyer who is routinely practices before the Registry of Motor Vehicles and its Board of Appeal.  Challenging license suspensions has become a specialty due to the complexities of the applicable laws, regulations, and appeal procedures. Most Registry hearings can be held on a “walk-in” basis. However, winning these cases requires adequate case preparation. Having the required documentation and making the right legal argument is critical. Going before the Board of Appeal requires the filing of a written appeal and it takes approximately 2 months to get a hearing before the Appeals Board.

If you are interested in appealing a license suspension in Massachusetts, I invite you to contact me for a free consultation and review of your case.

Massachusetts Administrative Per Se License Suspensions

If you were arrested for operating under the influence of liquor in Massachusetts and your blood alcohol level (BAL) was at or above .08, pursuant to G.L. c. 90 § 24(1)(f)(2), the Registry of Motor Vehicles will suspend your driver’s license or right to operate for a period of 30 days. This suspension is referred to as an administrative per se suspension or a breathalyzer failure suspension. Absolutely no hardship, work, or Cinderella license is authorized by law, unless your criminal case has been properly disposed of pursuant to G.L. c. 90 § 24D, which applies only to OUI 1st offenders or “2nd chance first offenders.”

You have a right to a hearing administrative per se suspensions in the district court where you were charged with DUI. You must appeal within ten (10) days of your suspension to the district court having jurisdiction where the DUI arrest occurred. The only question to be decided at this suspension appeal hearing is whether, after a reasonable period of time from your OUI arrest,  a chemical analysis of your breath of blood showed a reading at or above .08 for a person over 21 years of age or older and a BAC reading at or above .02 for a person under 21 years of age.

Massachusetts administrative per se suspensions will expire by operation of law at the end of the 30 day suspension period or with the disposition of the criminal operating under the influence (DUI) case,  whichever occurs first. In either case, prior to operating a motor vehicle, you must pay a reinstatement fee to the Registry of Motor Vehicles before your license is reactivated and your right to drive is reinstated.

It usually does not make sense to appeal these administrative per se suspensions to the Board of Appeal because by the time your Board of Appeal hearing is held, the 30 day suspension will be over with. If you lose your drunk driving case, you will have a new suspension based on your prior record.

Expunge OUI & Chemical Test Refusal?

Here’s the situation:

RMV has record of arrest for OUI and chemical refusal based on stop found to be illegal (no probable cause). I want to erase record of arrest and refusal from RMV records. Criminal case already dismissed with prejudice.

 The case was heard in District Court and was dismissed with prejudice. The  time for the prosecution to appeal the dismissal has lapsed.The officer stopped me at approximately 2:00 am in the parking lot of a hotel  that had been destroyed approximately a year earlier.  However, there were no barriers, such as chains, cement blocks, cones, or bollards physically preventing entry, and “no trespassing” signs were, by the officer’s own admission, inconspicuous and not visible in nighttime, and I hadn’t driven beyond any of the “no trespassing” signs anyhow.  A person not familiar with the area and following directions from a GPS device would have no prior knowledge that the hotel was abandoned; hotels are inherently places that are visited by people local to the area.In an attempt to sustain a “community caretaking” justification for the stop the officer stated in his report that there had been recent thefts of materials from area buildings. However, when pressed the police could not produce any such reports of actual material thefts.  His statement about such recent theft incidents was a lie.  Furthermore, that I was driving a late model passenger sedan, a 2008 Volvo, was inconsistent with the type of vehicle commonly used in the theft of copper from buildings.  (The officer states in his report he saw a 2002 Audi A4, which is wrong.  He thought he was supposed to see a 2002 Audi A4 based on the registration I handed him so that’s what he wrote in the report that he “saw,” but the slip from the tow company correctly indicates the type of vehicle that was actually present.)

As you see, the judge found the officer had no probable cause to initiate the stop.  The stop was found to be illegal and the motion was allowed.  While the criminal case is concluded I would like to consider whatever further courses of action may be available to

1) seal or expunge record of the arrest and chemical test refusal with the RMV
2) seal or expunge record of the arrest on my CORI
3) pursue redress of the officer’s violation of my civil rights, either in state or federal court, in that he detained and arrested me with no probable cause to do so, forcing me to spend money on attorney’s fees and other court expenses, to miss work, and other obvious consequences of a prosecution initiated without probable cause.
4) if the officer’s report is supposed to be under oath, initiate a perjury prosecution against the officer in that he falsely claimed incidents (the thefts of materials from area buildings) that did not occur in an attempt to justify probable cause for a stop where he knew it didn’t exist.
Furthermore, with regard to the RMV, at the original hearing regarding the officer’s claim of refusal (which I dispute), the police withheld exculpatory evidence, namely a report showing that I passed the horizontal gaze nystagmus (HGN).  For the appeal of the RMV decision in district court it emerged that the RMV failed to forward some of the evidence from the original hearing, namely some photographs of the location at which the arrest took place and the accompanying comments I wrote on the back of those photographs.  This is relevant because the judge at this appeal hearing was very strict that the evidence had to be the same.  That means that the evidence can’t be expanded but it can’t be reduced either.
Answer: There’s no way to expunge the Registry records. While you may be able to seal the CORI, you cannot seal your RMV record.

Hardship License After Not Guilty Verdict

Situation:

I was arrested for OUI / refusing Breathalyzer test and my license suspended automatically for 180 days. My court appointed attorney says I have a chance to beat the OUI case but he does not think any magistrate would reinstate my driver’s license even if I am found not guilty of the OUI charge. Please help

Answer:

During the term of a breathalyzer refusal suspension, the only way to get a hardship license from the Massachusetts Registry is to have your case resolved pursuant to G.L. c. 90 § 24D and enroll in an approved alcohol program.  Therefore, if you are found not guilty and the judge refuses to reinstate your license, the Registry will not grant you a hardship license. You may be able to appeal to the Mass. Division of Insurance Board of Appeal for a hardship license. However, the Board may deny you a hardship license for the same reason that the DUI trial judge refused to grant you a full reinstatement of your license after you were found not guilty.

Also, the Board of Appeal has expressed a reluctance regarding hearing chemical test refusal appeals, because there is already a statutory mechanism for them to be reviewed: within 15 days of the suspension by the Registry of Motor Vehicles and, in the event of a not guilty verdict or dismissal, by the judge who presided over the operating under the influence case.

In summary, you have a chance to be considered for a 12 hour hardship license by the Board of Appeal, but there is risk that the Board will refuse to hear your appeal. There is also a risk that the Board will hear your case and refuse to grant you a hardship license, perhaps for the same reason that your lawyer believes that the District Court Judge will deny you. The Board is likely to afford the Judge’s decision some deference, because he is the one who presided over your trial and heard the evidence in a judicial forum.

No Hardship License While OUI Case is Pending

Question:

I have a pending case in New Bedford Third District Court for OUI Liquor, or over 0.08%. I refused the breathalyzer and completed half of a field sobriety test before I had terminated it. I was subsequently arrested and released on a personal the following day.

What can I do to get a hardship license? I am enrolled at Bristol Comm. College and have class four times a week, have a court case to attend to, and need to look for work. The date of the incident was 10/17/2013 and I am aware that I am past the 15-day deadline.

An RMV representative told me over the telephone that I cannot do anything until the case is resolved. This will take months, as I plan to fight it and hopefully win.

Answer:

Assuming that this is a first offense, and you are 21 years of age or older, you will have a 180 day chemical test refusal suspension for refusing the breathalyzer. This will be followed with an OUI suspension if you are convicted or plead out. The Registry of Motor Vehicles Representative was right. You cannot be considered for any type of a hardship license until your operating under the influence (OUI) case is resolved in court pursuant to G.L. c. 90 § 24D and you have proof of enrollment in the 24D 1st offender alcohol program. While your case is pending, your license will remain suspended. If it takes longer than 180 days for your case to be heard, you can get your license reinstated after the 180 day chemical test refusal expires. If you’re convicted of OUI or are assigned to an alcohol program, you will have a new OUI suspension.

In Massachusetts, you cannot get a hardship license while a chemical test refusal suspension is running unless your case is resolved pursuant to G.L. c. 90 § 24D.

If you are found not guilty or the OUI charge is dismissed, you can have a hearing in the New Bedford District Court regarding the full reinstatement of your driver’s license.