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COMMONWEALTH OF MASSACHUSETTS
BERKSHIRE, ss SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 1976CV00206
‘
BRUCE BENSEN
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Plaintiff, roe
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“ani nfESS. SUPER BR Cul
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DIVISION OF INSURANCE BOARD
Ee MAR 04 2021
OF APPEAL LL. ee
\ harmben GAs
Defendant.
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DEFENDANTS’ CROSS MOTION FOR JUDGMENT ON THE PLEADINGS AND
OPPOSITION TO PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS
Per Mass. R. Civ. P. 12(c) and 8.0. 1-96(4), the defendant Board of Appeal on Motor
Vehicle Liability Policies and Bonds (“Board”) moves for judgment on the pleadings and
opposes the motion for judgment on the pleadings filed by plaintiff Bruce Bensen.
Mr. Bensen secks the return of his driver’s license. The Registrar of Motor Vehicles
Registrar”) suspended Mr. Bensen’s license for life, as required by G.L. c. 90, § 24(1) (8 (1)
because he refused a chemical test when he was arrested for operating under the influence of
liquor (“OUTIL”) and had four prior OUIL convictions. Mr. Bensen appealed to the Board, and
the Board affirmed. Mr. Bensen now appeals to this Court, pursuant to G.L. c. 30A, § 14. He
admits the lifetime suspension is required by statute, but argues that the Board’s adherence to the
law constitutes an abuse of discretion because “{iJn a recent line of cases, the Commonwealth
agreed to not seek the introduction of [chemical tests] at trial,” and drivers should not lose their
license as a result of refusing an unreliable test. Plaintiff's Memo., p. 4. This argument is twice-
waived and meritless
NMS)
THE ADMINSTRATIVE RECORD!
From 2000 through 2004, Mr. Bensen was convicted of four OUIL infractions. On April
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13, 2000, in New Jersey, Mr. Bensen was arrested for his first lifetime OUIL infraction. ARO13
4/2. On June 15, 2000, he was found guilty. Id. On December 28, 2000, in Holyoke
Massachusetts, Mr. Bensen was arrested for his second lifetime OUIL infraction. ARO13, ¥ 3. On
June 7, 2001, he was found guilty. Id. On July 12, 2002, in Connecticut, Mr. Bensen was arrested
for his third lifetime OUIL infraction. ARO13, 44. On July 26, 2002, he was found guilty. Id. On
October 27, 2003, in North Adams, Massachusetts, Mr. Bensen was arrested for his fourth
:
lifetime OUIL infraction. ARO13, { 5. On December 22, 2004, he was found guilty.
On August 9, 2015, in North Adams, Mr. Bensen was arrested for his fifth lifetime OUIL
infraction. ARO13, {| 6. Upon his arrest, he was offered a chemical test or analysis of his breath
or blood. Id. He refused. Id. The refusal was reported to the Registrar. Id. On August 10, 2015
the Registrar ordered Mr. Bensen’s license suspended for his lifetime, as required by G.L. c. 90.
§ 24(1) @) (1)? ARO13, 7 6; ARO4S
On May 13, 2019, Mr. Bensen was found not guilty of the OUIL offense, after being
previously convicted and then receiving a new trial. ARO14, {§ 7-9. Mr. Bensen then applied to
the District Court for the return of his driver’s license, as was his right under G.L. c. 90, § 24(1)
' Claims of judicial review of administrative agency proceedings filed in Superior Court shall be
resolved through a motion for judgment on the pleading, with facts taken from the administrative
record (“AR”). See Superior Court Order 1-96(4)
? In the relevant part, G.L. c. 90, § 24(1) (f) (1) provides that “Whoever operates a motor vehicle
upon” a public way, “shall be deemed to have consented to submit to a chemical test or analysis
of his breath or blood in the event that he is arrested for [OUIL] If the person arrested
refuses to submit to such test or analysis. . . aperson previously convicted of, or assigned to a
program for, 3 or more such violations shall have the person’s license or right to operate
suspended forthwith for life based upon such refusal.”
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(f) (1), fourth paragraph, ARO14, {| 10. The District Court denied the motion and issued findings.
ARO14, { 10; ARO33-35
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On June 5, 2019, Mr. Bensen appealed to the Board to use any discretionary authority it
may have to annul, revoke, or modify the Registrar’s 2015 lifetime suspension of Mr. Bensen’s
license. ARO05-007, 011. See G.L. c. 90, § 28.7 On August 20, 2019, Mr. Bensen appeared
before the Board (represented by counsel). ARO11. Mr. Bensen requested that the Board use its
discretion to grant him a license, and also argued that he had not intended to refuse the chemical
test. AR089-90. Specifically, when the Board asked “Why did he refuse the chemical test[,]” Mr.
Bensen’s counsel answered
He didn’t, He believes that he didn’t. He believes that he tried to blow into the machine.
but because he was so disoriented and weak from his circumstance, he couldn’t get
enough air into the machine and it was deemed a refusal. So he takes the position he
didn’t: But, of course, they viewed it to be a refusal.
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AR089-90, Mr. Mr. Bensen, however, had not challenged the validity of his chemical test refusal
before the Registrar, as was his right under G.L. c. 90, § 24(1) (g). ARO14, 4.6.4
3 In the relevant part, G.L. c. 90, § 28 provides that “Any person aggrieved by a ruling or
decision of the registrar may, within ten days thereafter, appeal from such ruling or decision to
the [Board], which board may, after a hearing, order such ruling or decision to be affirmed,
modified or annulled[.]”
“In the relevant part, G.L. c. 90, § 24(1) (g) (1) provides that “Any person whose license, permit
or right to operate has been suspended under subparagraph (1) of paragraph (f) shall, within
fifteen days of suspension, be entitled to a hearing before the registrar which shall be limited to
the following 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 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, (ii) was such
person placed under arrest, and (iii) did such person refuse to submit to such test or analysis. .
Within thirty days of the issuance of the final determination by the registrar following a hearing
under this paragraph, a person aggrieved by the determination shall have the right to file a
petition in the district court for the judicial district in which the offense occurred for judicial
Teview,
3
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The Board affirmed the Registrar’s order suspending Mr. Bensen’s driver’s license for
refusing to take a chemical test. ARO16. First, the Board found that it did not have jurisdiction to
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entertain Mr. Bensen’s contention that he had tried and failed to complete, rather than refused,
the chemical test. ARO1S. Any such factual challenge regarding a chemical test refusal must be
made to the Registrar under G.L. c. 90, § 24(1) (g). ARO15. Because Mr. Bensen did not pursue
that process, he could not challenge the validity of the chemical test refusal in his appeal to the
Board. Id. Second, the Board found that the Registrar was required, per G.L. c. 90, § 24(1) (f)
(1), to suspend Mr. Bensen’s license for life because he had three or more OUIL convictions
prior to the chemical test refusal. ARO1S. Third, the Board recognized the hardships Mr. Bensen
suffered as a result of his lifetime license suspension, but nevertheless “decline[d] to exercise
any discretion it may have to modify the life-time CTR license suspension.” ARO16.
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Mr. Benson then appealed the Board’s decision to this Court by filing this action under
G.L.«. 30A, § 14.
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‘ ARGUMENT
1 Judicial Review of an Agency Decision is Narrow and Deferential.
The Court shall affirm the decision unless Mr. Bensen demonstrates that the Board made
its decision: (a) in violation of constitutional provisions; (b) in excess of the administrative
agency’s authority; (c) based upon error of law; (d) made upon unlawful procedure; (e)
unsupported by substantial evidence; (f) unwarranted by facts in the record; or (g) if the decision
was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.
G.L. ¢. 30A, §14(7). Mr. Bensen argues that the Board’s decision was an abuse of discretion.
See, ¢.g., Plaintiff's Memo. at 3.
The abuise of discretion standard “must give great deference” to the exercise of discretion,
and “it is plainly not an abuse of discretion simply because a reviewing court would have
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reached a different result.” L.L. v. Commonwealth, 470 Mass. 169, 185, n.27 (2014). A
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discretionary decision “constitutes an abuse of discretion where . . . the judge made a clear error
of judgment in weighing the factors relevant to the decision... , such that the decision falls
outside the range of reasonable alternatives.” Id. (quotations omitted). See also Doe v. Sex
Offender Registry Bd., 98 Mass. App. Ct, 307, 311 (2020) (applying the “reasonable -
alternatives” standard for abuse of discretion adopted in L.L. to Chapter 30A appeals).
In addition, this Court must “give due weight to the experience, technical competence
and specialized knowledge of the agency, as well as to the discretionary authority conferred upon
it.” G.L.c. 30A, § 14(7); see Brackett v. Civil Serv. Comm’n, 447 Mass. 233, 241-242 (2006).
This standard of review is “highly deferential to the agency on questions of fact and reasonable
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inferences drawn therefrom.” Id. at 242 (quotations omitted).
It is the plaintiff's burden, as the moving party, to establish the agency’s decision was
invalid. Merisme v. Board of Appeals on Motor Vehicle Liability Policies and Bonds, 27 Mass.
App. Ct. 470, Av4 (1989); Fisch v. Bd. of Registration in Med., 437 Mass. 128, 131 (2002).
Yl. Mr. Bensen’s Appeal Fails Because It Consists Entirely of a New Argument that He
Cannot Raise for the First Time In this Appeal.
Mr. Bensen rests his entire appeal on an argument that he did not raise before the Board
or at any earlier time. He acknowledges that the Board is “bound by this harsh statutory scheme
of M.G.L. ¢. 90, §24 (1) (f) (1),” and that those who refuse a chemical test are “not entitled to
hardship exceptions[.]” Plaintiff's Memo., p. 6.
Facing an absolute bar to his appeal, Mr. Bensen argues that “[a] narrow exception
should be carved out [by this Court] for the Board to consider a hardship license when no
credible BT can be offered to an arrestee.” Plaintiff's Memo., p. 6. In support of this demand,
Mr. Bensen argues that “[a]t the time of Petitioner’s arrest, the Commonwealth knew it had a
problem with its BT test, but did not offer an alternative test. It instead, offered a known faulty
test that could gravely impact the case, whether it was taken or not. The Commonwealth should
not receive the benefit of its misdeeds.” ” Plaintiff's Memo., p. 7. Mr. Bensen did not make this
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argument to thle Board. Instead, he argued that he had tried to take the breath test, but was unable
to do so because he was suffering a diabetic episode and the police officer erroneously deemed
his behavior arefusal. ARO88-90.
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As set forth below, this new argument is without support in the record or the law. It is
meritless. But the Court cannot reach the merits because the argument was waived. First, Mr.
Bensen is essentially challenging the validity of his chemical test refusal; according to Mr.
Bensen, there was no valid test to take, and therefore none was refused. Any such challenge must
be made to the Registrar (and to the District Court upon appeal). G.L. c. 90, § 24(1)(g). The
Board lacked, and the Superior Court now lacks, jurisdiction to adjudicate such an appeal. The
Legislature gave a general grant of authority to the Board to hear appeals from “[a]ny person
aggrieved by a ruling or decision of the registrar[.]” G.L. c. 90, § 28. But any factual dispute as
to whether Raymond “refuse[d] to submit to such test of analysis[,]” could only be appealed
through the registrar and then to the district court. G.L. c. 90, § 24(1)(g). Mr. Bensen even
acknowledges as much, but then asks this Court to ignore the law: “It is true the Board does not
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have the jurisdiction to entertain the validity of the BT; however, it should not be bound to the
(lifetime) suspension, if the Commonwealth does not possess a certified BT to offer the
Petitioner.” PlaintifPs Memo., p. 4. Any such argument should have been made to the Registrar.
Mr. Bensen did not, and cannot raise it now. See also DiGregorio v. Registrar of Motor Vehicles,
78 Mass. App. Ct. 775, 783 (2011) (“As with other licensing decisions of the registrar, one
denied a hardship license can appeal that decision to the board. G.L. c. 90, § 28. However, the
board has no independent statutory power to issue a license.”) (quotations and edits omitted).
Second, even if Mr. Bensen were allowed to raise this argument through an appeal to the
Board (and then the Superior Court), he would have to make the argument to the Board before
making it to the Superior Court. Mr. Bensen made no such argument to the Board, and therefore
waived it. “To preserve an issue for appeal from an agency’s decision, a party must raise the
issue before the agency.” Doucette v. Massachusetts Parole Bd., 86 Mass. App. Ct. 531, 535
(2014), quoting Catlin v. Board of Registration of Architects, 414 Mass. 1, 7 n. 7, (1 992). See
also Rivas v. Chelsea Hous. Authy., 464 Mass. 329, 336 (2013) ( “arguments not made before an
administrative agency generally cannot be raised on appeal”).
In short, because Mr. Bensen’s current appeal rests exclusively on a argument he did not
make to the Registrar, the District Court, or the Board, it is waived and cannot be considered by
this Court.
TH. Courts Cannot Create the Exception Mr. Bensen Seeks.
Even if Mr. Bensen’s argument was not waived, there is no authority for the Court to
grant the relief requested, To be clear, Mr. Bensen has already been afforded one opportunity
before a judge to demonstrate grounds for the return of his license. On May 13, 2019, a jury
found Mr. Bensen not guilty of his fifth ourL offense. ARO14, { 10. Mr. Bensen then filed a
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motion with that court for restoration of his license under G.L. c. 90, § 24(1) (9 (1). AROI4,
{ 10. The same’ judge who presided over the jury trial heard Mr. Bensen’s motion, considered the
facts, and concluded on May 31, 2019, that the “Commonwealth has established by a fair
preponderance of the evidence that restoration of the defendant’s privilege to operate a motor
vehicle in the Commonwealth would endanger the public safety and has overcome the rebuttable
presumption established by the Legislature that this motion must be allowed in the absence of
such proof by the Commonwealth.” ARO35.
Mr. Bensen now asks this Court to give him a second opportunity to seek reinstatement.
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The Legislature, however, prohibited second requests to restore a driver’s license after a first
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motion to the District Court failed. See Commonwealth v. Richards, 480 Mass. 413, 416 (2018)
(holding that a driver like Mr. Bensen—who lose their license for refusing a chemical test, is
acquitted of the criminal charge, and unsuccessfully moves for license réinstatement under G.L.
c. 90, § 24(1) (g) (1)}—cannot make “additional motions to restore his or her license after his or
her immediate motion is denied”). Allowing Mr. Bensen to seek reinstatement before this Court
would “essentially creat{e] a judicial hardship exception for a defendant who had refused the
breathalyzer, where the Legislature expressly chose to prohibit such a remedy.” Id., at 418. The
Legislature gave Mr. Bensen one opportunity—and one opportunity only—to seek reinstatement
after he was found not guilty. Id. The sole court with the jurisdiction to address the issue found
that restoring Mr. Bensen’s license would endanger public safety and declined to restore it.
ARO3S. Other courts cannot manufacture a second opportunity for Mr. Bensen to plead his case;
“[i}f a defendant [who refused a breathalyzer] could continue to make new motions for
restoration indefinitely, based on considerations that justify the hardship exception for those who
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agreed to take the breathalyzer, it would undercut the Legislature’s decision to impose harsh
suspension consequences that discourage refusal.” Richards, 480 Mass. at 21. The Board’s
decision must be affirmed.*
IV. Mr. Bensen Provides No Factual Basis for His Argument.
If were possible to create an exception to the statutorily-mandated, lifetime suspension,
Mr. Bensen offers no support for creating such an exception in this particular case. He “argues
that at the time of his arrest, no approved/certified BT existed for him to consent to take.”
Plaintiff's Memo., p. 6. But Mr. Bensen does not offer any evidence to support that allegation,
nor could he, es none exists in the administrative record. See Doe v. Sex Offender Registry Bd.
470 Mass. 102, 108 (2014) (“judicial review under G.L. c. 30A, § 14” is “‘confined to the record,
except that in cases of alleged irregularities in procedure before the agency, not shown in the
record, testimony thereon may be taken in the court.’”) (quoting G.L. c. 30A, § 14(5)). There is
nothing in the record to support Mr. Bensen’s contention that no approved/certified chemical test
existed for him to consent to take. That is, of course, part of the reason why the argument is
waived. See Doe v. Sex Offender Registry Bd., 457 Mass. 53, 58 (2010) (“when a party neglects
to raise an issue during agency proceedings, the reviewing court lacks a record on which to
evaluate questions of statutory authority or jurisdiction”).
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5 This is not to say the District Court’s decision was beyond further review. Mr. Benson could
have sought review through certiorari in the Superior Court and then, if necessary, appealed to
the Appeals Court. But he chose not to do so. See Kasper v. Registrar of Motor Vehicles, 82
Mass. App. Ct. 901, 901-02 (2012) (“The appeal of a license suspension by the RMV is made to
the District Court. See G.L. c. 90, § 24(1)(g) . .. . Because there was no other avenue for appeal,
an action in the nature of certiorari to the Superior Court was appropriate [for review of the
District Court decision], andjurisdiction lies in this court to review the Superior Court judge’s
decision.”).
‘
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But even if the argument were not waived, the lack of supporting evidence means that
Mr. Bensen cannot meet his burden. Mr. Bensen contends that, “[i]n a recent line of cases, the
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Commonwealth agreed to not seek the introduction of the BT at trial, only but for in limited
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instances.” Plaintiff's Memo., p. 4, citing Commonwealth vs. Ananias, Mass. Dist. Ct., No. 1248
CR 1075, 2017 WL 11473590, (Feb. 16, 2017). But even that decision did not hold that there
were no approved or certified chemical tests in 2015, it held that certain machines (Alcotest
9510) certified before 2015 were not admissible. Id, The inadmissibility of some tests does not
automatically mean that there were no valid tests available. See Commonwealth v. Camblin, 478
Mass. 469, “ (2017) (upholding the admission of test results from the Alcotest 7110,
concluding that the results were scientifically reliable). Because there is nothing in the record to
support Mr. Bensen’s assertion that “at the time of his [2015] arrest, no approved/certified BT
existed for him to consent to take[,}” Plaintiff's Memo., p. 6, the Board’s decision must be
affirmed.
Vv. Even If Mr. Bensen’s Proposed “Exception” to the Law Were Possible, Had
Evidentiary Support, and Was Not Waived, It Cannot Be an Abuse of Discretion to
Decline to Adopt Such an Exception.
If Mr.’Bensen could have argued to the Board for an exception to the lifetime suspension
law based on. a lack of certified chemical tests, and if Mr. Bensen had actually made such an
argument to the Board, and if Mr. Bensen had submitted facts into the record to support his
argument, and if the Board or this Court have the discretion to grant such an exception but
decline to do so, such a declination would not be an abuse of discretion.
An abuse of discretion arises only where the “the decision falls outside the range of
reasonable alternatives.” Doe v. Sex Offender Registry Bd., 98 Mass. App. Ct. at 311. Mr.
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Bensen is seeking a policy-based exception to a mandatory law. In no way could an adjudicatory
body be accuséd of making a decision that falls outside the range of reasonable alternatives when
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it follows established, mandatory law. At best, Mr. Bensen makes an argument for exercising
discretion (if it exists) to ignore the requirements of a statute. Mr. Bensen does not, and cannot,
make an argument that it would be an abuse of discretion to follow the statute.
Regardless, Mr. Bensen’s argument for ignoring the law is unavailing. He contends that
“[t]he Commonwealth should not receive the benefit of its misdeeds[,]” i.c., faulty chemical
tests. Plaintiff's Memo., p. 7. But suspending a driver’s license for refusing a chemical test is not
a benefit to the Commonwealth. Nor is such a suspension punitive. Kasper, 82 Mass. App. Ct. at
902 (“License revocation for refusal to submit to testing pursuant to G.L. c. 90, § 24(1)(f )(L), is
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aremedial, nonpunitive public safety measure.”). Such “suspension serves to deter persons from
driving while intoxicated; it effectuates the Commonwealth’s interest in obtaining reliable and
relevant evidence by inducing suspected drunk drivers to take the breath test; and it promotes
safety on the highways by summary removal of dangerous drivers.” Richards, 480 Mass. at 414
(quotations omitted). Even if the second purpose of license suspensions for chemical test
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refusals—obtaining reliable and relevant evidence—is undermined by the inadmissibility of
certain tests, the other grounds for license revocation remain. As a result, adhering to the
governing statute is not only required, it is reasonable and not an abuse of any discretion that
may exist. The Board’s decision must be affirmed.
CONCLUSION
For the reasons stated above, this Court should (1) deny Mr. Bensen’s motion for
judgment on the pleadings; and (2) enter judgment affirming the Board’s decision.
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Respectfully submitted,
DIVISION OF INSURANCE BOARD
OF APPEAL
By Its Attorney,
MAURA HEALEY
ATTORNEY GENERAL
ets
Andrew Batchelor (BBO# 673248)
Deputy Regional Chief and
Assistant Attorney General
1441 Main Street, Suite 1200
Springfield, MA 01103
I
Tel: (413) 523-7708
i Fax: (413) 523-7765
' andrew. batchelor@mass.gov
DATED: Febriary 8, 2021
t
Certificate of Service
L Andrew Batchelor, hereby certify that on February 10, 2021, I caused a copy of
the foregoing to be served on the Plaintiff by mailing a copy to Attorney Elizabeth Quigley, by
first class mail, postage prepaid, to the following address of record:
Elizabeth Quigley, Esq.
Law Office of Elizabeth Quigley
27 Henry Avenue
Pittsfield, MA 01201
Cbeddeeur- adothedrrom
Andrew Batchelor
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Preview
12) 1 COMMONWEALTH OF MASSACHUSETTS BERKSHIRE, ss SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. 1976CV00206 ‘ BRUCE BENSEN we Plaintiff, roe iil “ani nfESS. SUPER BR Cul Vv, F —— DIVISION OF INSURANCE BOARD Ee MAR 04 2021 OF APPEAL LL. ee \ harmben GAs Defendant. a= . DEFENDANTS’ CROSS MOTION FOR JUDGMENT ON THE PLEADINGS AND OPPOSITION TO PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS Per Mass. R. Civ. P. 12(c) and 8.0. 1-96(4), the defendant Board of Appeal on Motor Vehicle Liability Policies and Bonds (“Board”) moves for judgment on the pleadings and opposes the motion for judgment on the pleadings filed by plaintiff Bruce Bensen. Mr. Bensen secks the return of his driver’s license. The Registrar of Motor Vehicles Registrar”) suspended Mr. Bensen’s license for life, as required by G.L. c. 90, § 24(1) (8 (1) because he refused a chemical test when he was arrested for operating under the influence of liquor (“OUTIL”) and had four prior OUIL convictions. Mr. Bensen appealed to the Board, and the Board affirmed. Mr. Bensen now appeals to this Court, pursuant to G.L. c. 30A, § 14. He admits the lifetime suspension is required by statute, but argues that the Board’s adherence to the law constitutes an abuse of discretion because “{iJn a recent line of cases, the Commonwealth agreed to not seek the introduction of [chemical tests] at trial,” and drivers should not lose their license as a result of refusing an unreliable test. Plaintiff's Memo., p. 4. This argument is twice- waived and meritless NMS) THE ADMINSTRATIVE RECORD! From 2000 through 2004, Mr. Bensen was convicted of four OUIL infractions. On April | 13, 2000, in New Jersey, Mr. Bensen was arrested for his first lifetime OUIL infraction. ARO13 4/2. On June 15, 2000, he was found guilty. Id. On December 28, 2000, in Holyoke Massachusetts, Mr. Bensen was arrested for his second lifetime OUIL infraction. ARO13, ¥ 3. On June 7, 2001, he was found guilty. Id. On July 12, 2002, in Connecticut, Mr. Bensen was arrested for his third lifetime OUIL infraction. ARO13, 44. On July 26, 2002, he was found guilty. Id. On October 27, 2003, in North Adams, Massachusetts, Mr. Bensen was arrested for his fourth : lifetime OUIL infraction. ARO13, { 5. On December 22, 2004, he was found guilty. On August 9, 2015, in North Adams, Mr. Bensen was arrested for his fifth lifetime OUIL infraction. ARO13, {| 6. Upon his arrest, he was offered a chemical test or analysis of his breath or blood. Id. He refused. Id. The refusal was reported to the Registrar. Id. On August 10, 2015 the Registrar ordered Mr. Bensen’s license suspended for his lifetime, as required by G.L. c. 90. § 24(1) @) (1)? ARO13, 7 6; ARO4S On May 13, 2019, Mr. Bensen was found not guilty of the OUIL offense, after being previously convicted and then receiving a new trial. ARO14, {§ 7-9. Mr. Bensen then applied to the District Court for the return of his driver’s license, as was his right under G.L. c. 90, § 24(1) ' Claims of judicial review of administrative agency proceedings filed in Superior Court shall be resolved through a motion for judgment on the pleading, with facts taken from the administrative record (“AR”). See Superior Court Order 1-96(4) ? In the relevant part, G.L. c. 90, § 24(1) (f) (1) provides that “Whoever operates a motor vehicle upon” a public way, “shall be deemed to have consented to submit to a chemical test or analysis of his breath or blood in the event that he is arrested for [OUIL] If the person arrested refuses to submit to such test or analysis. . . aperson previously convicted of, or assigned to a program for, 3 or more such violations shall have the person’s license or right to operate suspended forthwith for life based upon such refusal.” 2 ' | (f) (1), fourth paragraph, ARO14, {| 10. The District Court denied the motion and issued findings. ARO14, { 10; ARO33-35 ! On June 5, 2019, Mr. Bensen appealed to the Board to use any discretionary authority it may have to annul, revoke, or modify the Registrar’s 2015 lifetime suspension of Mr. Bensen’s license. ARO05-007, 011. See G.L. c. 90, § 28.7 On August 20, 2019, Mr. Bensen appeared before the Board (represented by counsel). ARO11. Mr. Bensen requested that the Board use its discretion to grant him a license, and also argued that he had not intended to refuse the chemical test. AR089-90. Specifically, when the Board asked “Why did he refuse the chemical test[,]” Mr. Bensen’s counsel answered He didn’t, He believes that he didn’t. He believes that he tried to blow into the machine. but because he was so disoriented and weak from his circumstance, he couldn’t get enough air into the machine and it was deemed a refusal. So he takes the position he didn’t: But, of course, they viewed it to be a refusal. ' AR089-90, Mr. Mr. Bensen, however, had not challenged the validity of his chemical test refusal before the Registrar, as was his right under G.L. c. 90, § 24(1) (g). ARO14, 4.6.4 3 In the relevant part, G.L. c. 90, § 28 provides that “Any person aggrieved by a ruling or decision of the registrar may, within ten days thereafter, appeal from such ruling or decision to the [Board], which board may, after a hearing, order such ruling or decision to be affirmed, modified or annulled[.]” “In the relevant part, G.L. c. 90, § 24(1) (g) (1) provides that “Any person whose license, permit or right to operate has been suspended under subparagraph (1) of paragraph (f) shall, within fifteen days of suspension, be entitled to a hearing before the registrar which shall be limited to the following 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 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, (ii) was such person placed under arrest, and (iii) did such person refuse to submit to such test or analysis. . Within thirty days of the issuance of the final determination by the registrar following a hearing under this paragraph, a person aggrieved by the determination shall have the right to file a petition in the district court for the judicial district in which the offense occurred for judicial Teview, 3 i The Board affirmed the Registrar’s order suspending Mr. Bensen’s driver’s license for refusing to take a chemical test. ARO16. First, the Board found that it did not have jurisdiction to | entertain Mr. Bensen’s contention that he had tried and failed to complete, rather than refused, the chemical test. ARO1S. Any such factual challenge regarding a chemical test refusal must be made to the Registrar under G.L. c. 90, § 24(1) (g). ARO15. Because Mr. Bensen did not pursue that process, he could not challenge the validity of the chemical test refusal in his appeal to the Board. Id. Second, the Board found that the Registrar was required, per G.L. c. 90, § 24(1) (f) (1), to suspend Mr. Bensen’s license for life because he had three or more OUIL convictions prior to the chemical test refusal. ARO1S. Third, the Board recognized the hardships Mr. Bensen suffered as a result of his lifetime license suspension, but nevertheless “decline[d] to exercise any discretion it may have to modify the life-time CTR license suspension.” ARO16. | Mr. Benson then appealed the Board’s decision to this Court by filing this action under G.L.«. 30A, § 14. 1 ‘ ARGUMENT 1 Judicial Review of an Agency Decision is Narrow and Deferential. The Court shall affirm the decision unless Mr. Bensen demonstrates that the Board made its decision: (a) in violation of constitutional provisions; (b) in excess of the administrative agency’s authority; (c) based upon error of law; (d) made upon unlawful procedure; (e) unsupported by substantial evidence; (f) unwarranted by facts in the record; or (g) if the decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. G.L. ¢. 30A, §14(7). Mr. Bensen argues that the Board’s decision was an abuse of discretion. See, ¢.g., Plaintiff's Memo. at 3. The abuise of discretion standard “must give great deference” to the exercise of discretion, and “it is plainly not an abuse of discretion simply because a reviewing court would have | reached a different result.” L.L. v. Commonwealth, 470 Mass. 169, 185, n.27 (2014). A | discretionary decision “constitutes an abuse of discretion where . . . the judge made a clear error of judgment in weighing the factors relevant to the decision... , such that the decision falls outside the range of reasonable alternatives.” Id. (quotations omitted). See also Doe v. Sex Offender Registry Bd., 98 Mass. App. Ct, 307, 311 (2020) (applying the “reasonable - alternatives” standard for abuse of discretion adopted in L.L. to Chapter 30A appeals). In addition, this Court must “give due weight to the experience, technical competence and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.” G.L.c. 30A, § 14(7); see Brackett v. Civil Serv. Comm’n, 447 Mass. 233, 241-242 (2006). This standard of review is “highly deferential to the agency on questions of fact and reasonable t inferences drawn therefrom.” Id. at 242 (quotations omitted). It is the plaintiff's burden, as the moving party, to establish the agency’s decision was invalid. Merisme v. Board of Appeals on Motor Vehicle Liability Policies and Bonds, 27 Mass. App. Ct. 470, Av4 (1989); Fisch v. Bd. of Registration in Med., 437 Mass. 128, 131 (2002). Yl. Mr. Bensen’s Appeal Fails Because It Consists Entirely of a New Argument that He Cannot Raise for the First Time In this Appeal. Mr. Bensen rests his entire appeal on an argument that he did not raise before the Board or at any earlier time. He acknowledges that the Board is “bound by this harsh statutory scheme of M.G.L. ¢. 90, §24 (1) (f) (1),” and that those who refuse a chemical test are “not entitled to hardship exceptions[.]” Plaintiff's Memo., p. 6. Facing an absolute bar to his appeal, Mr. Bensen argues that “[a] narrow exception should be carved out [by this Court] for the Board to consider a hardship license when no credible BT can be offered to an arrestee.” Plaintiff's Memo., p. 6. In support of this demand, Mr. Bensen argues that “[a]t the time of Petitioner’s arrest, the Commonwealth knew it had a problem with its BT test, but did not offer an alternative test. It instead, offered a known faulty test that could gravely impact the case, whether it was taken or not. The Commonwealth should not receive the benefit of its misdeeds.” ” Plaintiff's Memo., p. 7. Mr. Bensen did not make this ' argument to thle Board. Instead, he argued that he had tried to take the breath test, but was unable to do so because he was suffering a diabetic episode and the police officer erroneously deemed his behavior arefusal. ARO88-90. I As set forth below, this new argument is without support in the record or the law. It is meritless. But the Court cannot reach the merits because the argument was waived. First, Mr. Bensen is essentially challenging the validity of his chemical test refusal; according to Mr. Bensen, there was no valid test to take, and therefore none was refused. Any such challenge must be made to the Registrar (and to the District Court upon appeal). G.L. c. 90, § 24(1)(g). The Board lacked, and the Superior Court now lacks, jurisdiction to adjudicate such an appeal. The Legislature gave a general grant of authority to the Board to hear appeals from “[a]ny person aggrieved by a ruling or decision of the registrar[.]” G.L. c. 90, § 28. But any factual dispute as to whether Raymond “refuse[d] to submit to such test of analysis[,]” could only be appealed through the registrar and then to the district court. G.L. c. 90, § 24(1)(g). Mr. Bensen even acknowledges as much, but then asks this Court to ignore the law: “It is true the Board does not ' have the jurisdiction to entertain the validity of the BT; however, it should not be bound to the (lifetime) suspension, if the Commonwealth does not possess a certified BT to offer the Petitioner.” PlaintifPs Memo., p. 4. Any such argument should have been made to the Registrar. Mr. Bensen did not, and cannot raise it now. See also DiGregorio v. Registrar of Motor Vehicles, 78 Mass. App. Ct. 775, 783 (2011) (“As with other licensing decisions of the registrar, one denied a hardship license can appeal that decision to the board. G.L. c. 90, § 28. However, the board has no independent statutory power to issue a license.”) (quotations and edits omitted). Second, even if Mr. Bensen were allowed to raise this argument through an appeal to the Board (and then the Superior Court), he would have to make the argument to the Board before making it to the Superior Court. Mr. Bensen made no such argument to the Board, and therefore waived it. “To preserve an issue for appeal from an agency’s decision, a party must raise the issue before the agency.” Doucette v. Massachusetts Parole Bd., 86 Mass. App. Ct. 531, 535 (2014), quoting Catlin v. Board of Registration of Architects, 414 Mass. 1, 7 n. 7, (1 992). See also Rivas v. Chelsea Hous. Authy., 464 Mass. 329, 336 (2013) ( “arguments not made before an administrative agency generally cannot be raised on appeal”). In short, because Mr. Bensen’s current appeal rests exclusively on a argument he did not make to the Registrar, the District Court, or the Board, it is waived and cannot be considered by this Court. TH. Courts Cannot Create the Exception Mr. Bensen Seeks. Even if Mr. Bensen’s argument was not waived, there is no authority for the Court to grant the relief requested, To be clear, Mr. Bensen has already been afforded one opportunity before a judge to demonstrate grounds for the return of his license. On May 13, 2019, a jury found Mr. Bensen not guilty of his fifth ourL offense. ARO14, { 10. Mr. Bensen then filed a 7 motion with that court for restoration of his license under G.L. c. 90, § 24(1) (9 (1). AROI4, { 10. The same’ judge who presided over the jury trial heard Mr. Bensen’s motion, considered the facts, and concluded on May 31, 2019, that the “Commonwealth has established by a fair preponderance of the evidence that restoration of the defendant’s privilege to operate a motor vehicle in the Commonwealth would endanger the public safety and has overcome the rebuttable presumption established by the Legislature that this motion must be allowed in the absence of such proof by the Commonwealth.” ARO35. Mr. Bensen now asks this Court to give him a second opportunity to seek reinstatement. | The Legislature, however, prohibited second requests to restore a driver’s license after a first ' motion to the District Court failed. See Commonwealth v. Richards, 480 Mass. 413, 416 (2018) (holding that a driver like Mr. Bensen—who lose their license for refusing a chemical test, is acquitted of the criminal charge, and unsuccessfully moves for license réinstatement under G.L. c. 90, § 24(1) (g) (1)}—cannot make “additional motions to restore his or her license after his or her immediate motion is denied”). Allowing Mr. Bensen to seek reinstatement before this Court would “essentially creat{e] a judicial hardship exception for a defendant who had refused the breathalyzer, where the Legislature expressly chose to prohibit such a remedy.” Id., at 418. The Legislature gave Mr. Bensen one opportunity—and one opportunity only—to seek reinstatement after he was found not guilty. Id. The sole court with the jurisdiction to address the issue found that restoring Mr. Bensen’s license would endanger public safety and declined to restore it. ARO3S. Other courts cannot manufacture a second opportunity for Mr. Bensen to plead his case; “[i}f a defendant [who refused a breathalyzer] could continue to make new motions for restoration indefinitely, based on considerations that justify the hardship exception for those who 1 1 agreed to take the breathalyzer, it would undercut the Legislature’s decision to impose harsh suspension consequences that discourage refusal.” Richards, 480 Mass. at 21. The Board’s decision must be affirmed.* IV. Mr. Bensen Provides No Factual Basis for His Argument. If were possible to create an exception to the statutorily-mandated, lifetime suspension, Mr. Bensen offers no support for creating such an exception in this particular case. He “argues that at the time of his arrest, no approved/certified BT existed for him to consent to take.” Plaintiff's Memo., p. 6. But Mr. Bensen does not offer any evidence to support that allegation, nor could he, es none exists in the administrative record. See Doe v. Sex Offender Registry Bd. 470 Mass. 102, 108 (2014) (“judicial review under G.L. c. 30A, § 14” is “‘confined to the record, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony thereon may be taken in the court.’”) (quoting G.L. c. 30A, § 14(5)). There is nothing in the record to support Mr. Bensen’s contention that no approved/certified chemical test existed for him to consent to take. That is, of course, part of the reason why the argument is waived. See Doe v. Sex Offender Registry Bd., 457 Mass. 53, 58 (2010) (“when a party neglects to raise an issue during agency proceedings, the reviewing court lacks a record on which to evaluate questions of statutory authority or jurisdiction”). 1' 5 This is not to say the District Court’s decision was beyond further review. Mr. Benson could have sought review through certiorari in the Superior Court and then, if necessary, appealed to the Appeals Court. But he chose not to do so. See Kasper v. Registrar of Motor Vehicles, 82 Mass. App. Ct. 901, 901-02 (2012) (“The appeal of a license suspension by the RMV is made to the District Court. See G.L. c. 90, § 24(1)(g) . .. . Because there was no other avenue for appeal, an action in the nature of certiorari to the Superior Court was appropriate [for review of the District Court decision], andjurisdiction lies in this court to review the Superior Court judge’s decision.”). ‘ I But even if the argument were not waived, the lack of supporting evidence means that Mr. Bensen cannot meet his burden. Mr. Bensen contends that, “[i]n a recent line of cases, the 4 Commonwealth agreed to not seek the introduction of the BT at trial, only but for in limited 1 instances.” Plaintiff's Memo., p. 4, citing Commonwealth vs. Ananias, Mass. Dist. Ct., No. 1248 CR 1075, 2017 WL 11473590, (Feb. 16, 2017). But even that decision did not hold that there were no approved or certified chemical tests in 2015, it held that certain machines (Alcotest 9510) certified before 2015 were not admissible. Id, The inadmissibility of some tests does not automatically mean that there were no valid tests available. See Commonwealth v. Camblin, 478 Mass. 469, “ (2017) (upholding the admission of test results from the Alcotest 7110, concluding that the results were scientifically reliable). Because there is nothing in the record to support Mr. Bensen’s assertion that “at the time of his [2015] arrest, no approved/certified BT existed for him to consent to take[,}” Plaintiff's Memo., p. 6, the Board’s decision must be affirmed. Vv. Even If Mr. Bensen’s Proposed “Exception” to the Law Were Possible, Had Evidentiary Support, and Was Not Waived, It Cannot Be an Abuse of Discretion to Decline to Adopt Such an Exception. If Mr.’Bensen could have argued to the Board for an exception to the lifetime suspension law based on. a lack of certified chemical tests, and if Mr. Bensen had actually made such an argument to the Board, and if Mr. Bensen had submitted facts into the record to support his argument, and if the Board or this Court have the discretion to grant such an exception but decline to do so, such a declination would not be an abuse of discretion. An abuse of discretion arises only where the “the decision falls outside the range of reasonable alternatives.” Doe v. Sex Offender Registry Bd., 98 Mass. App. Ct. at 311. Mr. 1 10 Bensen is seeking a policy-based exception to a mandatory law. In no way could an adjudicatory body be accuséd of making a decision that falls outside the range of reasonable alternatives when 1 it follows established, mandatory law. At best, Mr. Bensen makes an argument for exercising discretion (if it exists) to ignore the requirements of a statute. Mr. Bensen does not, and cannot, make an argument that it would be an abuse of discretion to follow the statute. Regardless, Mr. Bensen’s argument for ignoring the law is unavailing. He contends that “[t]he Commonwealth should not receive the benefit of its misdeeds[,]” i.c., faulty chemical tests. Plaintiff's Memo., p. 7. But suspending a driver’s license for refusing a chemical test is not a benefit to the Commonwealth. Nor is such a suspension punitive. Kasper, 82 Mass. App. Ct. at 902 (“License revocation for refusal to submit to testing pursuant to G.L. c. 90, § 24(1)(f )(L), is || aremedial, nonpunitive public safety measure.”). Such “suspension serves to deter persons from driving while intoxicated; it effectuates the Commonwealth’s interest in obtaining reliable and relevant evidence by inducing suspected drunk drivers to take the breath test; and it promotes safety on the highways by summary removal of dangerous drivers.” Richards, 480 Mass. at 414 (quotations omitted). Even if the second purpose of license suspensions for chemical test ' refusals—obtaining reliable and relevant evidence—is undermined by the inadmissibility of certain tests, the other grounds for license revocation remain. As a result, adhering to the governing statute is not only required, it is reasonable and not an abuse of any discretion that may exist. The Board’s decision must be affirmed. CONCLUSION For the reasons stated above, this Court should (1) deny Mr. Bensen’s motion for judgment on the pleadings; and (2) enter judgment affirming the Board’s decision. 11 Respectfully submitted, DIVISION OF INSURANCE BOARD OF APPEAL By Its Attorney, MAURA HEALEY ATTORNEY GENERAL ets Andrew Batchelor (BBO# 673248) Deputy Regional Chief and Assistant Attorney General 1441 Main Street, Suite 1200 Springfield, MA 01103 I Tel: (413) 523-7708 i Fax: (413) 523-7765 ' andrew. batchelor@mass.gov DATED: Febriary 8, 2021 t Certificate of Service L Andrew Batchelor, hereby certify that on February 10, 2021, I caused a copy of the foregoing to be served on the Plaintiff by mailing a copy to Attorney Elizabeth Quigley, by first class mail, postage prepaid, to the following address of record: Elizabeth Quigley, Esq. Law Office of Elizabeth Quigley 27 Henry Avenue Pittsfield, MA 01201 Cbeddeeur- adothedrrom Andrew Batchelor 12