Opinion
No. 10–P–2279.
2012-10-18
Thomas F. FRAZIER v. REGISTRAR OF MOTOR VEHICLES & another.
By the Court (RAPOZA, MILLS
Justice Mills participated in the deliberation on this case before his retirement.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a judgment upholding the suspension of his driver's license by the Registry of Motor Vehicles (RMV).
Background. The Commonwealth asserts that during the booking process following his arrest for driving under the influence of intoxicating liquor, the plaintiff was asked to submit to a chemical breath test to determine his blood alcohol content but refused to do so. Consequently, his driver's license was suspended for three years pursuant to G.L. c. 90, § 24(1)( f )(1).
The plaintiff sought reinstatement of his license through an RMV administrative hearing, arguing that he was not offered a chemical breath test. A hearing officer from the RMV upheld his license suspension following review pursuant to G.L. c. 90, § 24(1)( g ). As provided by § 24(1)( g ), the plaintiff appealed to the District Court, which affirmed the hearing officer's determination. The plaintiff then brought an action for certiorari review in Superior Court. G.L. c. 249, § 4. Commonwealth v. Bauer, 455 Mass. 497, 499–500 (2009). The Superior Court affirmed, and this appeal ensued.
Discussion. “The standard of review in an action in the nature of certiorari is to ‘correct substantial errors of law apparent on the record adversely affecting material rights.’ “ Howard v. Chief of Police of Wakefield, 59 Mass.App.Ct. 901, 902 (2003), quoting from MacHenry v. Civil Serv. Commn., 40 Mass.App.Ct. 632, 634 (1996). “In the absence of substantial legal error, we review the record to determine whether [an agency] decision was supported by substantial evidence,” defined as “such evidence as a reasonable mind might accept as adequate to support a conclusion.” Durbin v. Selectmen of Kingston, 62 Mass.App.Ct. 1, 5–6 (2004), quoting from New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 466 (1981).
At the RMV license reinstatement hearing and before both the District Court and the Superior Court, the plaintiff argued that there was no credible evidence upon which to conclude he had refused to take a chemical breath test. He made that assertion even though he had signed a “Statutory Rights and Consent Form” (consent form) on which he had checked “no” in response to the question: “Do you consent to submit to the chemical test that this officer requested to determine your blood alcohol concentration?” In support of his claim that he was never given the opportunity to take (and thus also to refuse) the chemical breath test, the plaintiff points to the timing of the electronic transmission of certain reports by the Falmouth police.
The police reports on the plaintiff's arrest indicate that he was released from police custody at 8:20 P.M. The “Report of Chemical Test Refusal” (refusal report) in his case and the “Implied Consent Report Form, Alcotest 7110 MKIII–C” were transmitted to the RMV at 8:49 P.M. The plaintiff argues that the timing of the transmission, following his release, indicates he was never given an opportunity to take a chemical breath test while he was at the station. There is, however, no requirement that either report be prepared and transmitted prior to the plaintiff's release from police custody. Indeed, the only requirement for the refusal report was that it be prepared within twenty-four hours of the plaintiff's refusal and sent “forthwith” to the RMV. G.L. c. 90, § 24(1)( f )(1). That occurred in this case.
More importantly, the plaintiff does not dispute the fact that he willingly signed the consent form indicating his refusal to undergo a chemical breath test at 7:50 P. M., thirty minutes prior to his release. Rather, he contends that he did not read any of the forms he signed and that he only signed them out of a belief that he would not be released from police custody unless he did so. The RMV hearing officer was aware of this claim and chose not to credit it, noting that the plaintiff's sworn statement failed to overcome the fact that he indicated on the consent form that he had refused a chemical breath test. The hearing officer also gave credence to the refusal report, signed by a Falmouth police officer under pains and penalties of perjury.
We do not disturb the credibility determinations of the hearing officer, and conclude that his decision upholding the plaintiff's license suspension was supported by substantial evidence. See Greater Media, Inc. v. Department of Pub. Utils., 415 Mass. 409, 417 (1993); Kasper v. Registrar of Motor Vehicles, 82 Mass.App.Ct. 901, 902–904 (2012). Accordingly, we affirm.
Judgment affirmed.