Opinion
19-P-363
05-06-2020
COMMONWEALTH v. CARLTON W. MOORE, THIRD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Superior Court, the defendant was convicted of operating a motor vehicle while his license was revoked due to a conviction for operating under the influence (OUI), G. L. c. 90, § 23. On appeal, he argues that the judge erred in denying his motion for a required finding of not guilty because the Commonwealth failed to establish through competent evidence that, at the time of the offense, his license was revoked due to an OUI conviction. We affirm.
Background. On October 25, 2015, the defendant was arrested for OUI and refused to take a breathalyzer. As a result, the Registry of Motor Vehicles (RMV) suspended his license for life. On February 10, 2016, the defendant was convicted of the October 25, 2015, OUI offense. The following day, the RMV notified the defendant in writing of his lifetime revocation in connection with the February 10, 2016, OUI conviction. On October 21, 2017, after being stopped for driving with an expired inspection sticker, the defendant was arrested and charged with possession of a class E controlled substance, OUI (as a fourth or subsequent offense), and operating a motor vehicle with a revoked license by reason of an OUI conviction.
The drug charge was nol prossed prior to the case being submitted to the jury, and the jury returned a not guilty verdict on the OUI charge.
Discussion. The defendant contends that the judge erred in denying his motion for a required finding of not guilty on the third charge. In order to sustain its burden on this charge, the Commonwealth was required to prove that (1) the defendant operated a motor vehicle, (2) his license was revoked at that time, (3) the revocation was due to an OUI conviction, and (4) he had been notified of the revocation. See Commonwealth v. Deramo, 436 Mass. 40, 50 (2002). His sole argument on appeal is that the Commonwealth failed to establish the third element, that his license revocation was, in fact, due to an OUI conviction.
At trial, the Commonwealth introduced in evidence a February 11, 2016, letter from the RMV addressed to the defendant, stating in relevant part, "You are hereby notified that effective 02/21/16, your license / right to operate a motor vehicle is revoked for DWI LIQUOR." The letter further described the offense as having occurred on October 25, 2015, in Pittsfield with a conviction on February 10, 2016, out of the Pittsfield District Court. Thus, the evidence established that, at the time of the 2017 offense, the defendant's license was revoked due to an OUI conviction on February 10, 2016.
The record reflects that, at the time of the 2017 offense, the defendant's license or right to operate was revoked for life due to a 2016 OUI conviction, suspended for ten years due to a 2016 interlock device violation, suspended for four years due to a 2016 habitual traffic offender violation, suspended for life for a 2015 breathalyzer refusal, and revoked for ten years due to a 2013 OUI conviction The Commonwealth offered only the 2016 OUI conviction as the predicate suspension and not the 2013 OUI conviction.
As he did below, the defendant contends that, notwithstanding the February 11, 2016, letter, his license was not revoked due to an OUI conviction at the time of his 2017 offense. Rather, he argues that, at the time of the 2017 offense, his license was actually suspended for the 2015 breathalyzer refusal and therefore could not be the basis for a conviction under G. L. c. 90, § 23. See Commonwealth v. Nascimento, 479 Mass. 681, 684 (2018) (predicate suspension or revocation for conviction under G. L. c. 90, § 23, must be enumerated in statute and does not include suspension for a breathalyzer refusal). Relying on language in G. L. c. 90, § 24 (1) (f) (1), he argues that the license revocation upon his 2016 OUI conviction never took effect because it was required to be consecutive to the permanent suspension for the 2015 breathalyzer refusal. We disagree.
As relevant here, G. L. c. 90, § 24 (1) (f) (1), provides that anyone who operates a motor vehicle on a public way is deemed to have consented to take a breathalyzer upon arrest for OUI. If a person so arrested refuses to take a breathalyzer, he is subject to a suspension of his license. Additionally,
"The suspension of a license or right to operate shall become effective immediately. . . . A suspension for a refusal . . . shall run consecutively and not concurrently, both as to any additional suspension periods arising from the same incident, and as to each other."G. L. c. 90, § 24 (1) (f) (1). The defendant contends that this provision requires (1) immediate suspension upon a breathalyzer refusal and (2) any additional period of suspension arising out of the same incident, i.e., revocation upon conviction, not to begin until the suspension for the breathalyzer refusal ends. See Commonwealth v. Richards, 480 Mass. 413, 415 n.1 (2018) ("Where a defendant refuses the breathalyzer and is later convicted, the suspension period triggered by the conviction will 'run consecutively and not concurrently' with the suspension triggered by the refusal. See G. L. c. 90, § 24 [1] [f] [1]").
The defendant's construction has some superficial support in the language of the statute. See Richards, 480 Mass. at 418, quoting Retirement Bd. of Stoneham v. Contributory Retirement Appeal Bd., 476 Mass. 130, 135 (2016) ("The effect given to statutory language should be consistent with its plain language"). However, that interpretation conflicts with a related statutory provision, G. L. c. 90, § 24 (1) (b), which requires immediate revocation of a license upon conviction for OUI. See Richards, supra at 419, quoting Custody of Victoria, 473 Mass. 64, 73 (2015) ("[I]f reasonably possible, all parts [of a statute must] be construed as consistent with each other"). A statute that contains seemingly conflicting language must be interpreted so as to make it an effectual piece of legislation, in harmony with common sense and sound reason and taking care to carry out the legislative intent. Wolfe v. Gormally, 440 Mass. 699, 704 (2004).
As the Supreme Judicial Court has noted, the Legislature decided to impose harsh consequences for those who refuse breathalyzers "in order to increase breathalyzer compliance and [decrease] the number of drunk drivers who escape the consequences of their actions" (quotation and citation omitted). Richards, 480 Mass. at 422. The defendant's construction would run contrary to this purpose by effectively exempting those individuals who are permanently barred from driving due to a breathalyzer refusal from prosecution for operating with a revoked license due to an OUI conviction. Courts are not required to adopt interpretations that are "plainly inconsistent with [the statute's] central purpose, notwithstanding the susceptibility of the statute's plain language to such a construction." Reade v. Secretary of the Commonwealth, 472 Mass. 573, 584 (2015).
Given the two provisions which require immediate license suspension or revocation, one upon a breathalyzer refusal and the other upon an OUI conviction, we construe the term "consecutive" to refer to the length of the suspension or revocation and not to the point at which it becomes effective. In other words, each suspension or revocation is to take effect immediately upon the triggering event, but the overall suspension or revocation period will be comprised of the two periods added together. This construction is consistent with the plain language of G. L. c. 90, § 24 (1) (f) (1), but also gives effect to the plain language of G. L. c. 90, § 24 (1) (b). Moreover, it is consistent with the legislative scheme.
Thus, while the defendant's lifetime suspension for the breathalyzer refusal took effect immediately in 2015, it did not preclude the lifetime revocation for the 2016 OUI conviction. Accordingly, the February 11, 2016, letter notifying the defendant of his license revocation due to the February 10, 2016, OUI conviction was not invalid. The fact that the defendant's license was permanently suspended did not preclude his license from also being permanently revoked due to an OUI conviction. The defendant's motion for a required finding of not guilty was properly denied.
We acknowledge, but reject, the defendant's argument that because a person has only one driver's license which must be confiscated according to statute, see G. L. c. 90, § 24 (1) (b), there can be only one suspension or revocation at a time. Under this theory, the defendant's suspension for refusing a breathalyzer in 2015 never took effect because, at the time, the defendant's license was under a ten year revocation due to a 2013 OUI conviction and remained in effect at the time of the 2017 offense. In any event, the statute deals not only with suspensions and revocations of driver's licenses, but also with suspensions and revocations of the right to operate a motor vehicle. Therefore, even if there is no physical license to be confiscated, a person's right to operate a motor vehicle can still be suspended or revoked.
Judgment affirmed.
By the Court (Milkey, Singh & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 6, 2020.