REGISTRY OF MOTOR VEHICLES, Petitioner v. MARGARET STEVENS and the CONCORD DIVISION OF THE DISTRICT COURT

Before the Court is a motion for judgment on the pleadings brought by the
petitioner Registry of Motor Vehicles (the “Registry” or the
“Registrar”) on its petition for certiorari review pursuant to G.L.
c. 249, § 4. The action at issue is the decision of the Concord Division
of the District Court Department of the Trial Court (the “District
Court”) reversing the Registrar’s three year suspension of the
license of the respondent Margaret Stevens (“Stevens”) for
Stevens’ refusal to take a breathalyzer test after her arrest for driving
under the influence. For the reasons stated below, the Court ALLOWS the
petition and reverses the District Court.

Pertinent Facts

In the early morning of January 8, 2006, while operating a motor vehicle on
a public way in Lincoln, Stevens was stopped by an officer of the Lincoln
Police Department. At the time, Stevens was 20 years old. After failing three
field sobriety tests, Stevens was arrested for operating under the influence
and transported to the police station.

Although there is conflicting evidence as to the details of what occurred at
the station, there is no dispute that Stevens was provided with a so-called
“Statutory Rights Form” issued pursuant to G.L. c. 90
§24(1)(f)(1). The Statutory Rights Form recited Stevens’ rights to a
doctor’s medical examination and to a telephone call to family, friends or
counsel.

The form also contained a “request” that Stevens “submit to a
chemical test to determine [her] blood alcohol concentration.” The latter
is commonly referred to as a “breathalyzer test.” The form further
notified Stevens that “[i]f [she] refuse[d] this test, [her] license or
right to operate in Massachusetts shall be suspended for at least a period of
180 days or up to life for such refusal.” The text of the form continued:
“The suspension if you take the test and fail it is 30 days. Drivers under
age 21 will face an additional suspension pursuant to General Laws Chapter 90,
Section 24P of 180 days to 1 year.”

Stevens availed herself of the opportunity to make a phone call and called
her mother. Again, while the accounts vary as to what occurred after Stevens
contacted her mother, there is no dispute that Stevens did in fact speak to her
mother and that her mother herself spoke to the arresting officer. It is also
not contested that her mother was provided a copy of the Statutory Rights Form
when she arrived at the station to pick up Stevens. And it is also not in
dispute that after speaking to her mother, Stevens refused to take the
breathalyzer test.

As of the date of the incident, G.L. c. 90, § 24 had been recently and
significantly revised in a legislative package referred to as
“Melanie’s Law.” For background see, e.g., K. Eschbacher,
“Crackdown on the Roads: Melanie’s Law,” Patriot Ledger, October
29, 2005 at p. 1. Among the changes introduced by Melanie’s Law was that
if a person under age 21 refused to take the breathalyzer test after notice of
the range of suspensions that could be imposed for doing so, an automatic three
year license suspension was imposed.(1)

Within a week, the Registry revoked Stevens’ license for the mandatory
three year period.

Stevens then exercised her statutory right to a hearing at the Registry to
contest the suspension. G.L. c. 90, § 24(1)(g). She and her mother
submitted affidavits to the hearing officer.

The basis of her appeal was that Stevens alleged that she had been misled by
the arresting officer as to the consequences of a refusal to take the
breathalyzer. Stevens said that the officer told her that if she refused to
take the test, the maximum period her license would be suspended would be one
year. Her affidavit stated, “While I was speaking to [my mother on the
phone from the station] the police officer said, “Make sure she
understands you could lose your license anywhere from 180 days to a year [if
you were to refuse the test]. I asked him if he would like to talk to her,
handed him the phone and he told her the same.”

Stevens’ mother’s affidavit confirmed Stevens’ account. Her
affidavit stated: “The police officer came on the phone and explained that
Margaret could lose her license for 6 months to a year if she didn’t take
the test.”

As noted above, Stevens refused the breathalyzer test. As to her reasons,
she stated in her affidavit, “My decision to not take the breathalyzer was
based on the understanding that I would lose my license for at most a year. I
am in school in New York where I do not use a car, so losing my license for a
year did not seem like a big hardship. However, losing my license for three
years would be.” If she had been informed of the prospect of the
three-year suspension, Stevens said in her affidavit, and so testified at the
Registry hearing, she ”would have definitely taken the breathalyzer.”

At the Registry hearing, the hearing officer had before him the “Report
of Chemical Test Refusal” on a form authorized by the Registry pursuant to
G.L. c. 90, § 24(1)(f). He also had copies of the incident reports
prepared by the police officers involved in Stevens’ arrest and booking.
And he had Stevens’ and her mother’s affidavits. Stevens and her
mother were present at the hearing. Stevens did not subpoena the police
officers to the hearing, as was her right. 540 C.M.R. 9.05(6); 540 C.M.R.
11.02(4); Wasserman v. Registry of Motor Vehicles, Suffolk Superior
Court Civil Action No. 03-03341, 2004 WL 2049771, at *10 (Sept.
7, 2003) (Cratsley, J.).

Pursuant to G.L. c. 90, § 24(1)(g), the hearing officer was required to
address three issues:

(i) 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…,

(ii) was such person placed under arrest, and

(iii) did such person refuse to submit to such test or analysis.

After considering the evidence, the hearing officer concluded that Stevens
had not met her appellate burden of proof on any one of them and let the
suspension stand. He communicated his decision first by letter and then by a
detailed “Chemical Test Refusal Hearing Report” pursuant to 540 Code
Mass. Regs. 11.00.

With regard to the specific issue of Stevens’ refusal of the
breathalyzer test, in the section of the hearing officer’s report where
the printed question was posed, “Did the defendant refuse to submit to a
Chemical Test?” the hearing officer entered, “Yes.” As his
reasons, the hearing officer recorded that Stevens had been given the Statutory
Rights Form, that the form contained a verbatim recitation of the advice
required by the statute to the effect that a refusal of the test would cause
Stevens’ license to be “suspended for a period of at least 180 days
up to a lifetime,” and that by her own admission Stevens refused the test.
The hearing officer also noted that the form recited that an
“additional” suspension of 180 days to one year would occur on
Stevens’ refusal on account of her being under 21, citing G.L. c. 90,
§ 24P (emphasis in the original hearing officer’s decision).

As to Stevens’ and her mother’s versions of events, the hearing
officer made the following determination: “Based on [Stevens’]
condition that evening, I cannot give her recollections, nor her mother’s
recollection of an obviously distressing phone call, more weight than a crystal
clear written form that [Stevens] admits being given and asked to sign.”
The hearing officer concluded, “Thus, I find [Stevens] was properly
advised [of the consequences of refusing the breathalizer], and clearly
refused.”

Stevens then exercised her right to appeal the Registry’s action to the
District Court pursuant to G.L. c. 90, § 24(1)(g). As provided by statute,
review by the District Court was “on the record established at the hearing
before the registrar.” G.L. c. 90, § 24(1)(g). Thus, no
additional witnesses or evidence were introduced.

Concluding that Stevens had not “refused” the breathalyzer, the
District Court reversed the Registry’s determination. The District Court
ruled that the hearing officer’s decision was erroneous as a matter of
law, and was arbitrary and capricious.

The District Court judge made several specific findings in support of his
conclusion. First, he found that the “[h]earing officer erred in not
making an independent factual determination of refusal.” Second, the court
stated, “Plaintiff was clearly misinformed of the 3 year minimum
suspension. Ignorance of the consequences would not justify refusal but active
(albeit innocent) misstatement vitiates her ?refusal.’” The judge
reversed the hearing officer’s decision, but allowed the one-year
suspension imposed in Stevens’ companion criminal case to stand.(2)

The Registry then filed the present petition, seeking certiorari review of
the District Court’s action under G.L. c. 249, § 4.

Discussion

Scope of Review. An action for certiorari is only available “to correct
errors in proceedings which are not according to the course of the common law,
which proceedings are not otherwise reviewable by motion or by appeal.”
G.L. c. 249, § 4.

On certiorari review “’[a] court will correct only a substantial
error of law, evidenced by the record, which adversely affects a material right
of the plaintiff. . . . In its review, the court may rectify only those errors
of law which have resulted in manifest injustice to the plaintiff or which have
adversely affected the real interests of the general public.’”
Massachusetts Bay Transp. Auth. v. Auditor of the Commonwealth, 430
Mass. 783, 790-791 (2000), quoting Carney v. Springfield, 403 Mass. 604, 605 (1988). “The court’s power on certiorari is not
exercised to remedy mere technical errors that have not resulted in manifest
injustice.” Mass. Prisoners Assn. Political Action Comm. v. Acting
Governor, 435 Mass. 811, 824 (2002).

Therefore, the question before this Court is whether, on the basis of the
record, the Concord District Court substantially erred in a way that materially
affected the rights of the Registrar or the public interest. Cf.
Massachusetts Bay Transp. Auth., 430 Mass. at 791.(3)

To address this question it is necessary to consider the limitations that
apply to the District Court’s review of the Registrar’s decision. By
statute, the District Court is authorized to reverse the Registry’s final
determination only if “the department exceeded its constitutional or
statutory authority, made an erroneous interpretation of law, acted in an
arbitrary and capricious manner or made a determination which is unsupported by
evidence in the record.” G.L. c. 90, § 24(1)(g).

As such, the District Court’s review was to be by the familiar
“substantial evidence” standard routinely employed by the
courts’ review of administrative agency decisions. See Wasserman,
supra, at *15.

“Substantial evidence” means such evidence as a reasonable mind
might accept as adequate to support a conclusion. G.L. c. 30A, § 1(6).
When applying the substantial evidence standard, the Court considers the record
as a whole. The Black Rose, Inc. v. City of Boston, 433 Mass.
501, 503 (2001). “[T]he substantial evidence test accords an appropriate
degree of judicial deference to administrative decisions, ensuring that an
agency’s judgment on questions of fact will enjoy the benefit of the doubt
in close cases, but requiring reversal by a reviewing court if the cumulative
weight of the evidence tends substantially toward opposite inferences.”
Cobble v. Comm’r of the Dept. of Social Services, 430 Mass.
385, 391 (1999).

In applying the substantial evidence standard, a court “may not
displace…[the hearing officer’s] choices even though the court would
justifiably have made a different choice had the matter been before it de
novo.” Cepulonis v. Comm’r of Correction, 15 Mass. App.
Ct. 292, 295 (1983), quoting Labor Relations Comm. v. University
Hosp., Inc., 359 Mass. 516, 521 (1971). “In deciding whether
agency findings have satisfied this standard, [the court does] not decide
questions of credibility or weigh conflicting evidentiary versions[.]”
Silvia v. Securities Division, 61 Mass. App. Ct. 350, 358 (2004).

Thus, the District Court in exercising its appellate function pursuant to
G.L. c. 90, § 24(1)(g) was not free to substitute its judgment as to
matters within the bounds of the Registrar’s lawful discretionary
authority. See Town of Falmouth v. Civil Service Commission, 61
Mass. App. Ct. 796, 800 (2004).

The Merits. Viewed in the above framework, it is apparent that the District
Court committed a substantial error of law, which error adversely affected a
material right of the Registry and the substantial interests of the general
public. Thus, the certiorari remedy is appropriate, and the District
Court’s decision must be reversed.

Stated most succinctly, the issue before the hearing officer was whether
Stevens and her mother had been so misled by the arresting police officer with
respect to the consequences of her refusal to take the chemical test that
Stevens’ refusal was neither voluntary nor knowing. As to that issue, the
hearing officer was faced with a straight credibility judgment: Did he believe
Stevens and her mother or did he believe the account of the police as
memorialized in the reports appearing in the record?

The Statutory Rights Form that Stevens acknowledged receiving contained the
statutory notice that the sanction for refusing to submit to the
chemical test was suspension of her license “for a period of at least 180
days and up to a lifetime loss.” The statute is explicit to the effect
that if such notice is given and the arrested person refuses the test, his or
her license “shall be suspended” (emphasis added). G.L. c. 90,
§ 24(f)(1).

The hearing officer’s decision was unambiguous in rejecting as not
credible Stevens’ and her mother’s accounts that, notwithstanding the
text of the Statutory Rights Form, the Lincoln Police assured them that the
maximum period of Stevens’ suspension would be only one year, and that
Stevens refused the test based on those assurances.

The record provides substantial support for the hearing officer’s
rejection of Stevens’ and her mother’s evidence. He noted
Stevens’ alcohol impaired condition at the time of the events at issue,
and the “distressing” circumstance in which her mother then found
herself.

As to her condition, Stevens was reported by three separate police officers
as having been substantially impaired at the time of her arrest, due to
apparent intoxication. Not only had she been observed to be driving
erratically, but, once stopped, Stevens badly failed three separate field
sobriety tests. For example, asked to recite the alphabet, the arresting
officer reported that, “her speech was too slurred to understand her. The
letters made no sense as she went along.” During the “One Leg
Stand” test, Stevens fell off balance and had to be grabbed by the officer
to prevent her from falling to the ground. Another officer who was present at
her arrest and booking described Stevens as “swaying while standing
still.” After she was fingerprinted and directed to the station cell, the
same officer reported that she literally walked into a station wall: “The
impact caused Ms. Stevens to lose her balance causing her to take several steps
backward.”

Meanwhile, in her affidavit, Stevens’ mother reported to the hearing
officer that although Stevens was “very upset” at the station, she
“was otherwise perfectly coherent.”

It was the duty of the hearing officer to choose between these competing
accounts as to whether Stevens had been materially misinformed about the
consequences of her refusal to take the breathalyzer test. He did so, adversely
to Stevens.

The core finding of the District Court, however, was that Stevens “was
clearly misinformed.” The conclusion is inescapable that in reaching this
conclusion, the District Court substituted its judgment for that of the hearing
officer as to the central factual issue. To do so was an error of law.

The District Court also found that the hearing officer committed error in
failing to “mak[e] an independent factual determination of refusal.”
It is not clear from the District Court’s judgment what the purported
error was. G.L. c. 90 and the pertinent regulations are silent as to a hearing
officer’s obligation to make such a determination. To the contrary, G.L.
c. 90, § 24(f)(1) explicitly provides that “[t]he report [prepared by
the police of the refusal] shall constitute prima facie evidence of the facts
set forth therein at any administrative hearing regarding the suspension
specified in this section.(4) For these purposes, the fact that the report may
have been contradicted by Stevens’ and her mother’s statements is of
no consequence, because “even in the presence of contradictory
evidence,…the prima facie evidence is sufficient to sustain the
proposition to which it is applicable.” Case of Scheffler, 419
Mass. 251, 259 (1994). See also M. Brodin & M. Avery, Handbook of
Massachusetts Evidence, §3.5.3, at 84 (2007).

Nevertheless, even if the requirement for such an “independent”
finding were read into G.L. c. 90, the hearing officer’s decision includes
such a finding. The hearing officer’s report of decision recited the
evidence from the police reports; it noted the lack of credibility of
Stevens’ and her mother’s contrary statements, and then the decision
concluded, “Thus, I find [Stevens] was properly advised, and clearly
refused.”

The District Court’s conclusion that the hearing officer did not make
an independent finding was without an evidentiary basis in the record.

Finally, the decision of the District Court caused a manifest injustice to
the Registrar and a material adverse impact on the public interest.

The Registry is mandated to enforce the Commonwealth’s statutes and
regulations concerning drunk driving. See Wasserman, supra, at *2-*5.
The provision at issue here—namely, the mandatory three year license
suspension of a person under 21 arrested for drunk driving who refuses the
breathalyzer—was part of Melanie’s Law. As noted earlier,
Melanie’s Law, enacted in October 2005, was a comprehensive revision of
the laws relating to drunk driving. Its statutory purpose was to better protect
the public through stricter penalties, restrictions, and sanctions imposed on
persons suspected or convicted of drunk driving. One means of doing so was the
mandatory three-year license suspension for persons under 21 who refused the
statutorily prescribed chemical test.

The District Court’s ruling to reverse the Registrar’s decision
frustrated the explicit public policy objective of Melanie’s Law as it
related to the remedial measure directly targeting operators of vehicles who
are under age 21. As a result, a manifest injustice to the Registrar was caused
and the public interest was directly and adversely affected.

ORDER

The petitioner’s motion for judgment on the pleadings is
ALLOWED. The March 10, 2006 judgment of the District Court is reversed,
and the three-year suspension of the respondent Margaret Stevens’ license
is reinstated, with credit for whatever time her license has been suspended to
date.

D. Lloyd Macdonald

Justice of the Superior Court

June 6, 2007

Footnotes

(1)1 The revised statute provided: “If the person arrested refuses to
submit to such test or analysis, after having been informed that his license or
permit to operate motor vehicles or right to operate motor vehicles in the
Commonwealth shall be suspended for a period of at least 180 days and up to a
lifetime loss, for such refusal, no such test or analysis shall be made and he
shall have his license or right to operate suspended in accordance with this
paragraph for a period of 180 days; provided, however, that any person who is
under the age of 21 years…shall have his license or right to operate
suspended forthwith for a period of three years for such refusal….”
Inasmuch as Stevens was arrested in January 2006, the Statutory Rights Form she
was given by the Lincoln Police incorrectly stated the consequence of a person
under 21 refusing the test. Rather than describing the mandatory three-year
suspension provision, the form recited the pre-Melanie’s Law version of
the statute. Before October 2005, if a person under 21 refused the test, a
suspension of 180 days to one year was imposed in addition to the license
suspension provisions that were applicable to adults. Stevens does not argue
here that the fact that the Statutory Rights Form failed to include the
post-Melanie’s Law three-year suspension provision made her refusal
ineffective. Rather, as noted below, her argument rests on a claim that the
police affirmatively misled her by stating that the maximum suspension would be
a year if she refused the test.

(2)2 Stevens’ criminal case was continued without a finding, and she
was placed on probation for one year with a condition that she attend an
alcohol awareness program in addition to her license being suspended for a
year.

(3)3 Both parties cited and referred the Court to Judge Cratsley’s
comprehensive explication of the statutory and regulatory framework of OUI
enforcement in the case of Wasserman v. Registry of Motor Vehicles,
supra. The Wasserman opinion was of great assistance to the Court.

(4)”4 Pursuant to 540 Code Mass. Regs. 11.02, the hearing officer is
obliged to “examine the Report of Refusal…to determine if it meets
the requirements of [the] statute." Upon making that determination, the
regulation then provides that “the burden in on the operator to show that
one of the following factual issues, as set forth in M.G.L. c. 90 §
24(1)(g) [i.e., reasonable evidence of intoxication, fact of arrest and fact of
refusal] was in the negative….” Stevens does not claim that the
Report of Refusal submitted by the Lincoln Police Department failed to meet the
requirements of the statute, nor does she claim that the hearing officer failed
to determine that it did.