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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