Articles Posted in Breathalyzer Refusal Appeals

Most drivers don’t realize that every state requires a driver suspected of drunk driving submit to a blood-alcohol test or face mandatory license suspension. This requirement is outlined in “implied-consent statutes.” Although the U.S. Supreme Court has partially addressed the constitutionality of these statutes, a recent defendant in Illinois unsuccessfully appealed with the state Appellate Court challenging the constitutionality of such statutes under the Fourth Amendment.

The Arrest

The case of the People of Illinois v. Gaede involved a defendant who was arrested for drunk driving associated with a hit-and-run incident. The defendant was operating a motorcycle when he was stopped by an officer responding to reports of a hit-and-run. After failing field sobriety tests, the defendant was arrested for an OUI and transported to the county jail where he was read his rights and warnings. The defendant then chose to refuse the required chemical breath test, and as a result, his license was immediately suspended. The jury found the defendant guilty of the OUI, and the defendant appealed.

The Massachusetts Court of Appeals addressed an important question for Connecticut Drivers charged with DUI in Massachusetts in the case of Thomas Scheffler v. Board of Appeals. The Appeals Court held that a driver’s assignment to a diversionary program, which is not considered a DUI Conviction in Connecticut, does count as a like offense for the purposes of determining whether the Massachusetts Registry of Motor Vehicles will issue a license suspension.

In 2009, Mr. Thomas Scheffler was charged in Connecticut for operating under the influence of liquor, in violation of a Connecticut statute. Because Mr. Scheffler refused a breathalyzer test, his license was suspended for six months. However, the OUI charge was dismissed upon Mr. Scheffler’s completion of a pretrial alcohol education diversion program, in compliance with another state statute.

Almost two months later, the RMV notified Mr. Scheffler that his license would be suspended for one year based on the Connecticut OUI charge. Despite being later informed that Mr. Scheffler’s license was actually suspended for refusing a breathalyzer, and that the OUI charge was dismissed following completion of the diversion program, the RMV did not clear Mr. Scheffler’s record. Instead, his record now reflects both the breathalyzer refusal and the OUI dismissal, in addition to the completed alcohol education program.

When your license is suspended for refusing a breath test in Massachusetts, there is a method to appeal that suspension.  This blog addresses the issue of how you appeal a breath test refusal suspension. This blog addresses the arguments I have used in court to argue that the court should vacate a refusal suspension.  At DelSignore Law, we have had numerous refusal suspensions vacated by the court.

As a Massachusetts OUI attorney, I typically am asked what arguments can be made to challenge a breathalyzer refusal suspension. In my prior post, I outlined the procedure for filing an appeal of a breathalyzer refusal suspension. In this post, I will discuss the arguments I have made before the RMV and in the District Court to attempt to vacate the suspension.

First, I look at the documents to make sure that the officer complied with Massachusetts general laws, Chapter 90 Section 24 in issuing the suspension. To comply with Massachusetts DUI law, the refusal must be witnessed by one other officer in addition to the officer requested the breathalyzer test. Some police officers are not aware of this requirement and I have seen reports of refusal omit this element.

The second issue is whether or not a motorist actually refused a breathalyzer test. In cases where a motorist attempted to submit to a breathalyzer test, but could not register an adequate sample, this raises the issue of whether the motorist constructively refused a breathalyzer test or could not deliver an adequate sample, due to medical conditions or to the condition of the breathalyzer machine.

A third argument, and one I use it every case, is that the report of refusal does not comply with Massachusetts DUI law as it is not signed under the pains and penalties of perjury.

Chapter 90 section 24 provides that a police officer shall “prepare a report of such refusal. Each report shall be made in a format approved by the registrar and shall be made under the penalties of perjury by the police officer before whom such refusal was made.”

In every case that I have seen, the report of refusal has no signature of the officer and next to prepared under the pains and penalties of perjury, there is an indication of “Y” to indicate yes.  On some forms, the officer will write yes.  The reports of refusal also has a disclaimer that the registry reserves the right to correct any error or omission in the report of refusal. I have argued before the court that this report does not constitute a report prepared under the pains and penalties of perjury. An officer could not be prosecuted for perjury based on this preprinted form that has no indication that the officer reviewed it or check it for its accuracy.
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