Code of Massachusetts Regulations › 540 CMR - REGISTRY OF MOTOR VEHICLES › Title 540 CMR 11.00 - Operators License Suspension due To Implied Consent Statute › Section 11.02 - Scope and Applicability

Current through Register 1525, July 5, 2024
(1) Any person who
			 receives notification from the Registrar, or from any Police Department on
			 behalf of the Registrar, advising that his or her operator's license, permit,
			 or right to operate has been suspended for a period of time pursuant to M.G.L.
			 c. 90, § 24(1)(f)(1) by reason of having refused to submit to a chemical
			 test or analysis of his or her breath, or in cases where the operator was
			 brought for treatment to a medical facility pursuant to M.G.L. c. 90, §
			 24(1)(f)(1) a test of his or her blood, may obtain a hearing in accordance with
			 the procedures outlined in said notice, at the Boston office of the Registry of
			 Motor Vehicles.
(2) For purposes of
			 this hearing, and pursuant to M.G.L. c. 90, § 24(1)(f)(1), the operator
			 shall be deemed to have consented to a breath test, and not a blood test unless
			 brought to a medical facility for treatment. If an operator consents to and
			 completes a breath test requested and administered by a police officer, the
			 operator may elect to obtain a comparison blood test pursuant to M.G.L. c. 90,
			 § 24(1)(e).
(3) An operator
			 desiring such a hearing shall appear at the Registry and submit a formal
			 request for the hearing, on a form which shall be provided at the
			 hearing.
(4) The Registry of Motor
			 Vehicles will compile a record of said hearing, including any testimony or
			 evidence submitted by the operator. It shall be the responsibility of the
			 operator to include any and all relevant testimony in written form for the
			 record. The Registry shall provide forms for witnesses to transcribe their
			 testimony to submit it for inclusion in the record, and shall provide
			 reasonable assistance to facilitate such transcription, should it be requested
			 by the operator. The Registry shall also allow the operator to have the
			 proceeding transcribed or recorded by a court reporter, at the operator's own
			 expense, if he or she so chooses. A copy of any transcription or recording
			 shall be supplied to the Registry and made part of the record of said
			 hearing.
(5) The procedure at any
			 such hearing shall be as follows:
(a) A
			 hearings officer will examine the Report of Refusal forwarded to the Registry
			 pursuant to the provisions of M.G.L. c. 90, § 24(1)(f)(1) to determine if
			 it meets the requirements of said statute. The Registry shall have a reasonable
			 period to obtain said report in any instance where an electronic transmission
			 may have been incomplete or not received. If after examining the Report of
			 Refusal, the hearings officer determines the requirements are not met, the
			 hearings officer shall forthwith reinstate the operator's license, permit or
			 right to operate, whichever is applicable.
(b) If the hearings officer determines the
			 Report of Refusal meets the statutory requirements, the burden is on the
			 operator to show that one of the following factual issues, as set forth in
			 M.G.L. c. 90, § 24(1)(g), was in the negative:
1. did the police officer have reasonable
			 grounds to believe that such person had been operating a motor vehicle while
			 under the influence of intoxicating liquor upon any way or in any place to
			 which members of the public have a right of access or upon any way or in any
			 place to which members of the public have a right of access as invitees or
			 licensees;
2. was such person
			 placed under arrest, and
3. did
			 such person refuse to submit to such test or analysis.
(c) The hearings officer shall have leave to
			 adjourn the hearing at any point to obtain further evidence on any one of the
			 issues detailed in 540 CMR 11.02(5)(b). The operator will be allowed to review
			 such additional evidence and submit such counter affidavits or other rebuttal
			 evidence as he or she desires, before the hearings officer concludes the
			 hearing.