Mass. Appeals Court Upholds Breathalyzer Refusal Suspension
In the case of Commonwealth v. Brian McCormack, which was decided on March 8, 2010, the Massachusetts Appeals Court upheld a district court judge’s decision not to return McCormack’s license after the judge found him not guilty of a 3rd offense OUI.
This case shows that where a license has been suspended because of a breathalyzer refusal, its reinstatement is not automatic. Even when a Massachusetts DUI defendant is found not guilty of the criminal charge, his or her license may still remain suspended in cases where the driver refused to take the breathalyzer.
I have found that many Massachusetts DUI lawyers fail to tell their clients about the license return procedures in cases where there is a breathalyzer refusal.
In the McCormick case, the judge refused to overrule the breathalyzer refusal suspension, in part, because of McCormick’s two prior convictions of operating under the influence, a prior conviction of operating so as to endanger, and convictions of other alcohol related offenses, including a recent conviction of assault and battery by means of a dangerous weapon.
The Massachusetts Appeals Court ruled that it was proper for the judge to considaer McCormick’s prior DUI convictions when deciding whether or not he would present a risk to public safety.
A positive aspect in this case for Massachusetts DUI lawyers and their clients is that the Court ruled that McCormick’s motion was not untimely because he did not attempt to get his license reinstated immediately after his DUI trial.
