Massachusetts Statute Governing Suspension and Restoration of Driver’s License After Chemical Test Refusal

Legally, one doesn’t have a “right” to his/her driver’s license. In Massachusetts, a persons’s right to operate a motor vehicle is a privilege, and continued possession of this privilege is conditioned on obeying the legislature’s laws that are aimed at regulating the state’s roadways and keeping them safe. Because of this, under the Massachusetts statutory scheme, a person who drives on a public road is “deemed to have consented to a submit to a chemical test or analysis of his breath or blood in the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor.

For this reason, if you are pulled over for drunk driving in Massachusetts and fail or refuse to take an alcohol breath test, that refusal will result in a suspension of your driver’s license. The legislature has enacted these suspensions in order to deter people from drunk driving and obtain evidence against suspected drunk drivers who do take the test; and also promotes safety on the road by summary removal of “dangerous drivers.”

What are the consequences of refusing to take a Breathalyzer test?

A driver who fails a chemical breath test and is subsequently convicted of drunk driving is subject to significant consequences. Drivers with no prior OUI convictions who are convicted of a first-offense OUI face a 1 year suspension. The penalties then increase: if the person had 1 prior OUI conviction, he would face a 2 year loss of license; a person with 2 prior OUI convictions would face an 8 year license loss; a person with 3 prior OUI convictions would face a 10 year license loss; and a person with 4 prior drunk driving convictions would face a lifetime suspension of his/her driver’s license.

But what if you beat your OUI case after trial?

A driver who refuses to take the alcohol breath test will face a license suspension regardless of whether he/she is acquitted after trial.

  1. Driver’s with no prior OUI convictions who refuse to take the breathalyzer test will lose their driver’s license for 180 days;
  2. Driver’s with 1 prior OUI convictions who refuse to take the breathalyzer test will lose their driver’s license for 3 years;
  3. Driver’s with 2 prior OUI convictions who refuse to take the breathalyzer test will lose their driver’s license for 5 years; and
  4. Driver’s with 3 prior OUI conviction who refuse to take the breathalyzer test will lose their driver’s license for life.

Can your driver’s license be restored?

If a person is convicted after trial of OUI after having refused the breathalyzer test, he may have his license restored. Massachusetts General Laws c. 90, sec. 24(1)(c) permits the individual to apply for a limited license based on hardship – sometimes referred to as a “cinderella license”. Unfortunately, a person who has had his license suspended for life is not eligible for a hardship license.

But what if you beat your case and are acquitted of OUI?

Notwithstanding the above, if the person refuses to take the breathalyzer test but is then acquitted in their case, he may apply for relief and reinstatement of their driver’s license. Massachusetts General Laws c. 90, sec. 24(1)(f)(1) provides:

“…the defendant may immediately, upon entry of a not guilty finding or dismissal of all charges under this section…and in the absence of any other alcohol related charges pending against said defendant, apply for and be immediately granted a hearing before the court which took final action on the charges for the purpose of requesting the restoration of [his/her] license. At [the] hearing, there shall be a rebuttal presumption that [the] license be restored, unless the Commonwealth shall establish, by a fair preponderance of the evidence, that restoration of said license would likely endanger the public safety.”

An important consideration of this avenue for relief and reinstatement is that, although the person may immediately move for restoration of his license, the statute does not authorize additional, subsequent hearings if he is not successful on his first request. Rather, the statutory provision grants the defendant an opportunity to move for restoration of his license immediately upon an entry of not guilty or dismissal of the charges; but not again or at a later date, and not twice.

More specifically, this statutory relief requires the defendant the make his application for relief before the court that took final action on his charges and based on his circumstances at the time of his acquittal. The reason for this is so that judge who presided over the defendant’s OUI proceedings could make a determination of whether the restoration “would likely endanger the public safety” based on the facts as they existed at the time of the defendant’s acquittal, and in the context of the evidence that was presented.

In a recent case, the Massachusetts Supreme Judicial Court has rejected the restoration of a person’s driver’s license in circumstances where, although he was acquitted of OUI, the judge refused to reinstate his driver’s license following trial. That defendant then re-petitioned the court several years later and provided evidence of his continued sobriety. This “new information”, although relevant for the motor vehicles registrar to consider in deciding whether to issue a hardship license for persons who refused to take a breathalyzer test, is beyond the scope of the facts as they existed at the time of the defendant’s acquittal.

There are essentially two different mechanisms for application of restoration of a persons’ driver’s license: for those who agreed to take the breathalyzer; and for those who refused to take take the breathalyzer. The Massachusetts statutory scheme, however, treats those who refuse to take the breathalyzer very different and more harshly – they are not entitled to hardship exceptions.

Therefore, providing defendants with a very limited opportunity for relief following an acquittal after their trial satisfies public safety concerns. However, the defendant does not have unlimited bites at the apple. He has one shot after acquittal, and if his petition is denied, he has no recourse to re-petition at a later date and present new circumstances. The reason for this is, if a person could refuse the breathalyzer test and continue to make new motions for restoration indefinitely, it would undercut the legislature’s objective in imposing harsher consequences that discourage refusal. In other words, the Massachusetts legislature has consciously elected to impose much harsher consequences for breathalyzer refusal than for conviction in order to increase breathalyzer compliance and decrease the number of drunk drivers who escape the consequences.

Ultimately, the decision to whether or not to take a breathalyzer test if pulled over is a very serious one given the potential consequences. For the vast majority of people, however, they are simply unaware of all the potential consequences of refusal vs. submitting to the breathalyzer. Most people make an [uninformed] decision, based either on a belief that if they take the test the police might not arrest them; or in the hope that they might pass the test. Unfortunately, they are usually wrong on both.

Nobody plans to drink and drive; and certainly, nobody plans or expects to get pulled over and arrested for drunk driving. Every driver, however, should be aware of the potential consequences, particularly loss of license consequences, for breathalyzer refusals and conviction for operating under the influence.

Boston DUI/OUI Lawyer Lefteris K. Travayiakis


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