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BT Refusal Question

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Posted by: j809

Under Melanie's Law a BT refusal for 1st offense is 180 days,2nd 3 yrs and 3rd 5yrs, 4th and subsequent lifetime suspension. My question is, if you get a guy with one prior OUI with a not guilty and refuses again, is the second BT refusal a 3 yrs suspension or 180 days again. I am under the impression that it would be three years as it is a BT refusal and administrative sanction from the RMV regardless of the court outcome. What say you, what say all?


Posted by: Delta784

I'm 99% sure that BT refusals and convictions are mutually exclusive, so a second refusal would trigger the 3-year suspension.

In the end it doesn't matter, because they always find an end-run anyway. Almost every OUI suspect I've had has gotten their license back before they were supposed to by paying some bullshit reinstatement fee. Melanie's Law has forced the defense lawyers to become more creative, that's about it.


Posted by: j809

I had an OUI trial yesterda, guy was still udner th 180 day BT refusla suspension. He was found NG and his license was reinstated the same day. From the court and not from a hearing. WTF?


Posted by: spd722

I had a 3rd offense oui. He got a NG, but on all his prior history refused the BT including mine. His license is suspended for 4 years. I have heard of people who refuse the BT, plead out on first offense, complete the class and have there license back within seven days of being locked up. Its all f'ed up anyway. Look at the defense with the BT the lawyers are using now anyway. Just take the BT and your lawyer will use the law to get it thrown out.


Posted by: NBC515

The refusals are separate than the outcome of the court case...But like others have mentioned the person does not always serve out the entire license suspension. What I get a laugh out of is the mandatory year for driving on a suspended license for breathalyzer refusal.... Everytime I catch someone doing this the charge is dismissed upon paying court costs...Teaches the person a real good lesson I guess!


Posted by: dcs2244

I would think, what with this stringent law and all, that you guys would take the citizens blood the "old fashioned" way: with a club and a sponge, just so the citizen could avoid the refusal penalties...hey, it's the sensitive, serving way! </IMG>


Posted by: Delta784

Quote:
Originally Posted by dcs2244
I would think, what with this stringent law and all, that you guys would take the citizens blood the "old fashioned" way: with a club and a sponge, just so the citizen could avoid the refusal penalties...hey, it's the sensitive, serving way!
When I was in Australia in 1992, I was stopped at a sobriety checkpoint, and told to blow into a portable BT machine. While waiting for the results, I asked what would have happened if I refused to blow. The cops pointed to a mobile home looking vehicle, and said "We'd take you in there and draw a blood sample by force".


Posted by: csauce777

Quote:
Originally Posted by Delta784
When I was in Australia in 1992, I was stopped at a sobriety checkpoint, and told to blow into a portable BT machine. While waiting for the results, I asked what would have happened if I refused to blow. The cops pointed to a mobile home looking vehicle, and said "We'd take you in there and draw a blood sample by force".

So...what was the verdict?


Posted by: SPINMASS

Has anybody tried getting a conviction without a BT yet. I mean not even offering the BT?


Posted by: Sniper

why wouldn't you offer it Spin? Person was falling down drunk, unable to perform SFSTs etcetera.......... ?


Posted by: BUCKCHUCK

I have 3rd OUI next week. The best part is this his 5th time arrested for OUI. The only saving grace I have is that it has been 2 years since has driven. I see this guy walking home every night from the local bar at around 1am rain, sleet, or snow. He refused the BT and didn't want to take any of FST. It was a car chase with him asking me if I was going to F---ing shoot him? complete loser. But I am prepared for the NG in Wrentham District again.


Posted by: SPINMASS

The reason I say don't offer the BT is since cases are getting dismissed due to loopholes that don't need to be discussed on open forums. You can still create PC without the BT. But I am curious if anyone has actually tried this and what was the verdict. Just food for thought.


Posted by: Sniper

I gotcha Spin................


Posted by: mikey742

Quote:
Originally Posted by j809
Under Melanie's Law a BT refusal for 1st offense is 180 days,2nd 3 yrs and 3rd 5yrs, 4th and subsequent lifetime suspension. My question is, if you get a guy with one prior OUI with a not guilty and refuses again, is the second BT refusal a 3 yrs suspension or 180 days again. I am under the impression that it would be three years as it is a BT refusal and administrative sanction from the RMV regardless of the court outcome. What say you, what say all?
Are these the same for a commercial driver’s license?


Posted by: 94c

Quote:
Originally Posted by SPINMASS
The reason I say don't offer the BT is since cases are getting dismissed due to loopholes that don't need to be discussed on open forums. You can still create PC without the BT. But I am curious if anyone has actually tried this and what was the verdict. Just food for thought.
Sounds like a double-edged sword. You can't give him a refusal so he keeps his license, no?

I would then ask for a jury trial and after you were done testifying to my client's intoxication, I would ask you why didn't you give him a breath test then?

What would be your answer to the jury?


Posted by: j809

I've never heard of not offering the BT or blood at the hospital. You offer, they refuse and go on from there.


Posted by: Irish Wampanoag

Quote:
Originally Posted by SPINMASS
Has anybody tried getting a conviction without a BT yet. I mean not even offering the BT?
You dont offer BT your case will most likely goes bye bye unless the person goes to the hospital, or unless its OUI for drugs. For drugs you offer a urine test but if he or she refuses no penalty.

Note refusal BT for OUI alcohol is prima facie, conviction or not.

He or she must submit to a BT before a blood test is offered unless the person goes to the hospital etc... BT refusal no blood test it's a refusal and stops at the BT offer.


Posted by: 94c

"So officer, you gave my client his 263-5A rights but you didn't offer him a breath test? Wouldn't that prove his level of intoxication as you have testified to?"


Posted by: j809

Here's another question. How could you take his license away. If he refused the BT you take his license and if he takes it and fails you take it.




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