RAYMOND v. DIVISION OF INSURANCE BOARD OF APPEAL (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Chris J. Raymond, appeals from a Superior Court judgment that dismissed his administrative appeal of the defendant board's decision to suspend the plaintiff's driver's license for operating under the influence of intoxicating liquor and for refusing a blood alcohol test. Concluding that the board's decision was supported by substantial evidence and that the judge acted within his discretion in permitting the board to file the administrative record late, we affirm.

1. Late filing of the administrative record. The complaint for judicial review was served upon the board on December 4, 2018. By the terms of Superior Court Standing Order 1-96 (2017) (standing order), a certified copy of the record of the proceedings was due March 4, 2019. Ignoring the standing order's detailed provisions for handling potentially impounded material through a provisional motion to impound, the board instead filed a motion to impound and delayed filing the record until March 14, 2019. The board, however, successfully requested that the judge accept the filing in its opposition to the plaintiff's motion for default. Such decisions are entrusted to the judge's “sound discretion,” and we discern no abuse of that discretion where the delay was brief and did not prejudice the plaintiff. Abate v. Fremont Inv. & Loan, 470 Mass. 821, 825 n.10 (2015), quoting Burger Chef Sys., Inc. v. Servfast of Brockton, Inc., 393 Mass. 287, 289 (1984). See Eagle Fund, Ltd. v. Sarkans, 63 Mass. App. Ct. 79, 85 (2005) (“Case management is committed to the discretion of the trial judge, and we review the decision for an abuse of discretion”).

2. Judicial review. “Appellate review under G. L. c. 30A, § 14, is limited to determining whether the agency's decision was unsupported by substantial evidence, arbitrary and capricious, or otherwise based on an error of law.” Burke v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 90 Mass. App. Ct. 203, 205 (2016), quoting Haverhill Retirement Sys. v. Contributory Retirement Appeal Bd., 82 Mass. App. Ct. 129, 131 (2012). “We do not make a de novo determination of the facts or draw different inferences from the facts found by the agency.” Franklin Office Park Realty Corp. v. Commissioner of Dep't of Envtl. Protection, 466 Mass. 454, 456-457 (2013), quoting Vaspourakan, Ltd. v. Alcoholic Beverages Control Comm'n, 401 Mass. 347, 351 (1987).

Here, the administrative record contained the plaintiff's criminal history showing two convictions for operating under the influence of intoxicating liquor and one continuance without a finding for a charge of that crime, which resulted in the plaintiff's assignment to a treatment program. This provided substantial evidence to support the board's conclusion that the defendant had committed three offenses for purposes of G. L. c. 90, § 24 (1) (c) (3), which requires an eight-year license suspension.³ That the defendant was convicted only of a second offense for his third offense is of no moment. It is hardly unusual for a guilty plea -- as occurred here -- to involve a lesser number of prior offenses than a defendant's criminal record would support.

Similarly, the administrative record contains a report of a chemical test refusal and a notice to the plaintiff, dated January 11, 2013, of a suspension for this refusal. The plaintiff states that he did not refuse a breathalyzer test on July 1, 2012, and that he did not receive notification of the suspension. That is hard to reconcile with the plaintiff's statement that he requested the calibration for the breathalyzer and its operator's qualifications. In any event, we are not free to “make different credibility choices” than the board. McGovern v. State Ethics Comm'n, 96 Mass. App. Ct. 221, 227 (2019). The board was entitled to credit this evidence, to discredit the plaintiff's contrary assertions, and to find that the plaintiff refused a breathalyzer test and then was notified of a suspension but failed to appeal in a timely manner, as required by G. L. c. 90, § 24 (1) (g).⁴

Judgment affirmed.

FOOTNOTES

3.   The plaintiff also complains that he did not commit operating under the influence on January 27, 1991. The board, however, found that the plaintiff was not guilty of that offense, a finding that is also supported by the administrative record.

4.   The plaintiff also asserts that he did not refuse a chemical test on two occasions in 1992. The board, however, made no finding that he did. The length of the mandatory suspension imposed for refusing a chemical test is based on the number of prior offenses of operating under the influence of intoxicating liquor, not the number of prior refusals. See G. L. c. 90, § 24 (1) (f) (1). To the extent made, we deny the plaintiff's request for an award of costs and other relief.