District/Municipal Court Rules  District Court Standing Order 1-08: Petitions for judicial review of license suspension for chemical test refusal

See Also: Petition for Review of License Suspension for Breath Test Refusal

1. Applicability

This Order governs the orderly processing of petitions pursuant to G.L. c. 90, § 24(1)(g) , first paragraph, for judicial review of a decision of the Registrar of Motor Vehicles upholding the suspension of a motorist's license, permit or right to operate a motor vehicle based upon an alleged refusal to submit to a chemical test or analysis of the motorist's breath or blood at the time of arrest for operating a motor vehicle while under the influence of intoxicating liquor. Such petitions shall be filed and determined in accordance with the following procedures.

2. Filing of petition

Such petitions for judicial review shall be timely filed in the appropriate court on the form provided therefor, along with the filing fee and surcharge required by G.L. c. 262, §§ 2 and 4C , unless waived pursuant to G.L. c. 261, §§ 27A-27G . Such forms shall be available in each clerk-magistrate's office and on the District Court's internet website. Such petitions shall be docketed as a separate civil case, and not as part of the underlying criminal case. The clerk-magistrate shall immediately send a copy of any such petition to the Suspension Department of the Registry of Motor Vehicles by facsimile transmission.

3. Scheduling

The clerk-magistrate shall schedule such petition for hearing at least 15 days from the filing of the petition. As required by G.L. c. 90, § 24(1)(g) , the hearing shall be scheduled as soon as possible thereafter and not more than 30 days from the filing of the petition, unless the petitioner consents to a later date. No pre-hearing motion or memorandum shall be required, unless specifically ordered by the Court. The petitioner may waive oral argument and submit on written argument, or without argument, by so notifying the clerk-magistrate in writing prior to the scheduled hearing date.

4. Filing of RMV record

Within 15 days after receiving a copy of the petition by facsimile transmission, the Registry of Motor Vehicles shall, by way of appearance and answer, file with the clerk-magistrate a copy of the entire record established at the hearing before the Registrar or the Registrar's designee, certified in accordance with G.L. c. 233, § 76 as a true and complete copy of such record. The Registry shall simultaneously serve a copy of such record upon the petitioner by mail to the petitioner's current mailing address as established pursuant to G.L. c. 90, § 26A . The Registry shall not be required to file an appearance of counsel nor appear at the hearing, but if the Registry chooses to so appear by counsel it shall give written notice of such intent to the court and the petitioner when filing such record.

5. Hearing

Since § 24(1)(g) limits the Court's review to the record that was established at the Registry hearing, the court's hearing shall be limited to oral argument concerning such record, and no additional testimony or other evidence shall be presented.

6. Decision

Pursuant to G.L. c. 90, § 24(1)(g) , the Court may reverse the Registrar's decision if the Registry exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is unsupported by the evidence in the record. The Court's determination shall be recorded in the appropriate section of the petition form, and the clerk-magistrate shall then provide the petitioner with a copy of that determination and send a copy to the Registry by facsimile transmission.

The Court's decision is not appealable to the Appellate Division. Simon v. Registry of Motor Vehs., 1995 Mass. App. Div. 129 (N. Dist.)