Massachusetts Breathalyzer Refusal Appeals

The Breathalyzer Refusal License Suspension is a very important, but often overlooked, part of any Massachusetts DUI, OUI, DWI, or “drunk driving case,” where the person arrested has allegedly refused to submit to a chemical breath or blood test. Depending on the OUI defendant’s prior record, a breathalyzer refusal can result in a lifetime license suspension, with no ability to get a hardship license.

When counting prior offenses to calculate the length of a breathalyzer refusal suspension, under Melanie’s Law, the Registry uses a lifetime look-back period and can count offenses in any jurisdiction. Adult first offenders must serve a 180 day suspension, 2nd offenders are suspended for 3 years, 3rd offenders are suspended for 5 years, and 4th offenders, who refuse the breath test, are suspended for life. Given these high stakes, it usually makes sense to appeal your breathalyzer refusal suspension. This appeal must be filed within 15 days of the suspension and neither the Registry nor Massachusetts Courts will accept late appeals.

In order for a breathalyzer refusal suspension to be valid, the arresting police officer must establish that he or she had reasonable grounds to believe that you were committing the crime of OUI, that you were placed under arrest, and that you refused to submit to the breathalyzer test. Importantly, “refused” does not mean that you tried your best, but could not complete the test because of medical or other legitimate reasons.

Moreover, in order for a refusal suspension to be upheld, the refusal must be witnessed by someone other than the person refusing and the arresting officer. This means that another police officer must have observed the refusal and properly documented it in a police report, which must be signed under the penalties and pains of perjury. Additionally, the police report must properly explain the circumstances surrounding the refusal. In order for the breathalyzer refusal to be considered valid, you must have been specifically informed that your license would be suspended for at least 180 days up to lifetime.

It is not unheard of for Massachusetts police departments to use old refusal forms which contain inaccurate information regarding breathalyzer refusal penalties. If these outdated and inaccurate forms were used in your DUI case, and you properly appeal your suspension, you will automatically win. The burden is on the police to accurately advise you regarding the consequences of refusing the breathalyzer, so that you can make an informed choice.

Procedurally, breathalyzer refusal hearings are conducted at the Massachusetts Registry of Motor Vehicles in Boston. They are held on a walk-in basis and the hearing must be conducted within 15 days of the license suspension. Filing for a hearing involves completing the Registry’s Breathalyzer Refusal Appeal Form and submitting affidavits and any documentary evidence for the Registry or Court to consider. Depending on the case, a legal memorandum should also be submitted. Most of the time, the Registry “rubber stamps” the refusal suspension and the aggrieved driver must appeal to District Court, where a judge will review case. Many suspensions have been overturned at this level, because the police did not follow proper procedure or the refusal is otherwise legally infirm.

If you are facing a Massachusetts chemical test refusal, you should immediately contact a qualified attorney to discuss your case. You may be able to vacate the refusal entirely and save your license.