§ 24N Suspension of operator's license upon issuance of complaint; hearing
§ 24N. Suspension of operator's license upon issuance of complaint; hearing
Upon the issuance of a complaint alleging a violation of paragraph (a) of subdivision (1) of section twenty-four or a violation of section twenty-four G or twenty-four L of this chapter, or a violation of paragraph (1) of subsection (a) of section eight, or a violation of section eight A or section eight B of chapter ninety B, the judge, in addition to any other terms of bail or recognizance, shall, upon the failure of any police officer to suspend or take custody of the drivers license or permit issued by the commonwealth of any such defendant under paragraph (f) of subdivision (1) of section twenty-four, immediately suspend the defendant's license or right to operate a motor vehicle or vessel in the following instances: (i) if the prosecutor makes a prima facie showing at the arraignment that said defendant was operating a motor vehicle while the percentage, by weight, of alcohol in his blood was eight one-hundredths or more, or, relative to any defendant under the age of twenty-one, while the percentage by weight, of alcohol in his blood was two one-hundredths or more, as shown by chemical test or analysis of his blood or breath, and presents written certification of oral testimony from the person administering to the defendant such chemical test or analysis of his blood or breath that the defendant was administered such a test or analysis, that the operator administering the test or analysis of his blood or breath was trained and certified in the administration of such tests, that the test was performed in accordance with regulations and standards promulgated by the secretary of public safety, that the equipment used for such test was regularly serviced and maintained, and that the person administering the test had every reason to believe the equipment was functioning properly at the time the test was administered. Such certification shall be prima facie evidence of the facts so certified. Upon such a showing and presentation, the judge shall take immediate physical possession of such defendant's license or permit issued by the commonwealth to operate a motor vehicle, and shall direct the prosecuting officer to forthwith notify the department of criminal justice information services and the registrar of such suspension by the most expeditious means available. The defendant's license or permit to operate a motor vehicle shall remain suspended until the disposition of the offense for which said defendant is being prosecuted, but in no event shall such suspension pursuant to this section exceed 30 days; or (ii) if the prosecutor makes a prima facie showing at arraignment that said defendant was arrested on the charge of driving a motor vehicle on any such way or place while under the influence of intoxicating liquor, and said defendant refused to submit to a chemical test or analysis of his breath or blood. Upon such a showing and presentation, the judge shall take immediate physical possession of such defendant's license or permit issued by the commonwealth to operate a motor vehicle, and shall direct the prosecuting officer to forthwith notify the department of criminal justice information services and the registrar of such suspension by the most expeditious means available. The defendant's license or permit to operate a motor vehicle shall remain suspended for a period of 180 days; provided, however, that any person who is
under the age of 21 or who has been previously convicted of a violation under section 24 or a like violation by a court of any other jurisdiction shall have his license or right to operate suspended forthwith for a period of 1 year for such refusal; provided, further, that any person previously convicted 2 or more times of a violation under section 24 of a like violation by a court of any other jurisdiction shall have his license or right to operate suspended forthwith for a period of 18 months for such refusal. No license shall be restored under any circumstances and no restricted or hardship permits shall be issued during the suspension period imposed by this paragraph; provided, however, that the defendant may immediately, upon entry of a not guilty finding or dismissal of all charges under section twenty-four, sections twenty-four G and twenty-four L, and in the absence of any other alcohol related charges pending against said defendant, apply for and be granted a hearing forthwith before the court which shall have entered said finding for the purpose of requesting the restoration of said license. At said hearing, there shall be a rebuttable presumption that said license be restored, unless the commonwealth shall establish, by a fair preponderance of the evidence that restoration of said license would likely endanger the public safety. In all such instances, the court shall issue written findings of fact with its decision. Any person whose license or right to operate has been suspended pursuant to this section on the basis of chemical analysis of his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to a hearing before the court in which the underlying charge is pending, which hearing shall be limited to the following issue: whether a blood test administered pursuant to paragraph (e) of subdivision (1) of section twenty-four, within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such person's blood was less than eight one-hundredths, or, relative to such person under the age of twenty-one was less than two one-hundredths. If the court finds that such a blood test shows that such percentage was less than eight one-hundredths, or, relative to such person under the age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person's license or right to operate and shall direct the prosecuting officer to forthwith notify the department of criminal justice information services and the registrar of such restoration. Any person whose right to operate has been suspended pursuant to this section on the basis of the failure of such person to submit to a chemical test or analysis of his breath or blood may within ten days of his suspension request a hearing and upon such request shall be entitled to a hearing before the court in which the underlying charges are pending, which hearing shall be limited to the following issues: (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 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. If, after such hearing, the court finds on ay one of the said issues in the negative, the court shall restore such person's license or right to operate and shall direct the prosecuting officer to forthwith notify the criminal history systems board and the registrar of such restoration.