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BREATHALYZER TESTS & PROPER PROCEDURE

Joseph Coupal - Monday, July 09, 2012
In a recent case, Kasper v. Registrar of Motor Vehicles, the Massachusetts Supreme Judicial Court held that the RMV properly revoked Kasper’s license after he was stopped for drunk driving back in 2010. When the incident occurred, Kasper took the breathalyzer test once, registering at .18 percent, which is above the legal BAC of .08 percent.  After being given the test five more times, he still had not provided a valid sample, leading to the conclusion that Kasper had refused to provide the second sample, as he could not provide a reason why only the first test is valid. Massachusetts regulations provide that a driver must produce two adequate breath samples, and a failure to comply will be “noted as a refusal.”  501 Code Mass. Regs. § 2.16.  Additionally, the burden rests on the driver to show that he did not refuse to submit to the breathalyzer test.  540 Code Mass. Regs. § 11.02(5)(b) (1996). The case is notable because the Supreme Judicial Court clarified the avenue of appeal where a driver has allegedly refused a chemical test:  following a hearing with the Registrar of Motor Vehicles, the driver who does not prevail must file a a petition for certiorari to the Superior Court, not the district court where the DUI case is pending. If you have had your license revoked based on a breathalyzer refusal, the procedure may have been improper.  Contact the attorneys at Brooks & Crowley and we can offer you over 30 years of legal expertise to defend your case.

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