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17-P-1144 Appeals Court

COMMONWEALTH vs. ARTURO D. CUEVA.

No. 17-P-1144.

Suffolk. September 11, 2018. - February 12, 2019.

Present: Vuono, Agnes, & Henry, JJ.

Motor Vehicle, Operating under the influence, License to 

operate. Due Process of Law, Blood alcohol test, 

Suspension of driver's license, Notice. Practice, 

Criminal, Prior conviction. Evidence, Blood alcohol test, 

Prior conviction. Notice. Registrar of Motor Vehicles, 

Records.

Complaint received and sworn to in the Chelsea Division of 

the District Court Department on August 31, 2015. 

The case was tried before Matthew J. Nestor, J. 

Joseph P. Lattimore for the defendant.

Christopher Boutin, Assistant District Attorney, for the 

Commonwealth.

VUONO, J. A jury in the Chelsea Division of the District 

Court Department convicted the defendant of operating a motor 

vehicle while under the influence of intoxicating liquor (OUI), 

third offense, and operating a motor vehicle after his license 
2

had been suspended as a result of a prior OUI conviction.1 On 

appeal, the defendant claims that the judge erred by allowing in 

evidence unredacted records of the registry of motor vehicles 

(RMV), which contained multiple references to his refusal to 

submit to a chemical test.2 He also contends that the evidence 

was insufficient to prove that he had notice his license had 

been suspended. 

We conclude that the failure to redact the RMV records was 

error and requires us to reverse the judgment on the charge of 

OUI, third offense. We also conclude that the Commonwealth 

failed to prove notice to the defendant of his license 

suspension. Consequently, judgment must enter for the defendant 

on the charge of operating a motor vehicle after suspension.3

 

1 An additional charge of reckless operation of a motor 

vehicle was dismissed prior to trial. 

2 The defendant also claims that testimony describing his 

alleged refusal to perform the "one-leg stand" field sobriety 

assessment constituted improper refusal evidence. The defendant 

did not object to the testimony, and therefore, the trial judge 

did not determine whether the defendant was unwilling to perform 

the test or, instead, indicated that he was not capable of 

performing the test. See Commonwealth v. Brown, 83 Mass. App. 

Ct. 772, 778-779 (2013). We express no view on the 

admissibility of the challenged testimony and presume the 

question will be resolved by the judge at any retrial.

3 Given our conclusion, it is not necessary to address the 

defendant's additional claim that the judge erred by not giving 

an instruction informing the jury that evidence of the 

defendant's prior OUI conviction could be used only to determine 

whether the Commonwealth had proved the reason for the 
3

Background. 1. Facts. On August 28, 2015, at about 6:45 

P.M., Officer Steven Launie of the Revere police department was 

stopped in traffic on the American Legion Highway in Revere. 

The defendant's vehicle, a gray Toyota Camry, was in front of 

the officer. After a few minutes, the defendant pulled out of 

the lane of traffic onto the sidewalk and drove approximately 

200 feet. Officer Launie activated his emergency lights and 

followed the defendant on the sidewalk, after which the 

defendant turned into the parking lot of a liquor store, where 

he parked without incident. Officer Launie parked behind the 

Camry, got out of his cruiser, approached the defendant's 

vehicle, and knocked on the driver's side window. The defendant 

initially held up his hand indicating that the officer should 

wait. Officer Launie knocked again and told the defendant to 

roll down the window. The defendant did not follow the 

officer's instruction. Instead, he opened the vehicle door. 

Officer Launie instructed him to close the door, and to remain 

in the automobile and roll down the window. The defendant 

complied, and Officer Launie requested his license and 

registration. The defendant produced a Massachusetts 

identification card and stated that his girl friend, who owned 

 

defendant's license suspension. See Commonwealth v. Beaulieu, 

79 Mass. App. Ct. 100, 102-103 (2011).
4

the vehicle, had his driver's license. He could not find the 

vehicle's registration, despite emptying the glove compartment

in an effort to locate it. During this exchange, Officer Launie 

smelled the odor of alcohol and noticed that the defendant's 

movements were slow. After the defendant removed his 

sunglasses, the officer further observed that his eyes appeared 

glassy and bloodshot. 

Suspecting that the defendant had been driving while under 

the influence of alcohol, Officer Launie decided to assess his 

sobriety and asked him to step out of the vehicle and perform 

certain tasks starting with the "one-leg stand" test. The 

defendant said that he would not be able to perform the task

because he was not strong enough, and in fact, he performed 

poorly. Next, the defendant was not able to walk nine steps in 

a straight line and turn around. At this point, Officer Launie 

formed the opinion that the defendant was under the influence of 

alcohol and placed him under arrest. The defendant was 

transported to the police station by another officer, who had 

arrived on the scene to provide backup support. 

The defendant did not testify at trial. His defense, 

developed through cross-examination and argument, was that his 

ability to drive was not impaired. He asserted, through 

counsel, that he drove on the sidewalk to avoid the traffic and 

that the sidewalk was wide enough for vehicles. He also claimed
5

that vehicles often parked on that sidewalk and introduced 

evidence -- two photographs -- to corroborate his claim. 

Lastly, he argued that the Commonwealth failed to prove that on 

August 28, 2015, he knew his license had been suspended. 

2. The docket sheet and RMV records. At trial, the 

prosecutor introduced a certified copy of a criminal docket 

sheet showing that the defendant had pleaded guilty to OUI in 

the Peabody Division of the District Court Department 

approximately seven months earlier on January 13, 2015.4 

According to the docket, the defendant's license was suspended 

for two years from the date of the plea.5 Thereafter, the 

prosecutor introduced a copy of the defendant's RMV record, 

certified as of October 13, 2015. The exhibit consisted of 

fifteen pages. The first page contained the defendant's 

identifying information, including his photograph, name, 

address, date of birth, social security number, and driver's 

license number. The second page set forth the defendant's 

 

4 Although the issue has not been raised on appeal, we note 

that the docket sheet was only partially redacted. The first 

page of the exhibit contains handwritten notations reflecting a 

violation of probation (denoted "VOP") on September 2, 2015. We 

presume that further redaction will be required at any retrial.

See Commonwealth v. Crayton, 470 Mass. 228, 249 n.27 (2014).

5 In the box labelled "Sentence or other disposition" were 

the following handwritten comments: "60 days H/C ss 2yr 1-12-

17," "2 yr loss of license," and "24Q Evaluation." 
6

historical license information, including changes of address, 

and on the third page, the registrar certified that the 

documents were true copies, and that there had been no 

subsequent reinstatement of the defendant's license. The

following six pages were copies of what appeared to be computer 

generated letters addressed to the defendant at addresses 

associated with his license. One of the letters, dated August 

31, 2015 -- three days after the defendant's arrest in this case 

-- stated, "You are hereby notified that effective 08/28/15,

your license/right to operate a motor vehicle is suspended for 

[three] years for CHEM TEST REFUSAL, pursuant to [G. L. c. 90, 

§ 24 (l) (f) (l)]." The letter specified that the "CHEM TEST 

REFUSAL," described as an "offense," occurred on August 28, 

2015, in Revere (the date and location of the OUI offense at 

issue here). The letter informed the defendant of his right to 

a "Chemical Test Refusal" hearing within fifteen days of his 

arrest and set forth information about the location and timing 

of such hearings. Of the remaining five letters, three

concerned the revocation or suspension of the defendant's 

license on prior occasions for a "CHEM TEST REFUSAL" on October 
7

30, 2014, in Lynnfield,6 and a conviction of OUI on January 13, 

2015.7,8

The remainder of the exhibit consisted of two copies of a

computer printout of the defendant's three-page driving history. 

The printout contained the defendant's name, address, date of 

birth, and license number, followed by a list of entries,

spanning twenty-two years, entitled "A COMPLETE LIST OF ALL 

OFFENSES AND ACTIONS ON FILE." The entries reflected that the 

defendant had committed numerous violations including, among 

other things, speeding, leaving the scene of property damage,

 

6 The letter dated October 31, 2014, stated, "You are hereby 

notified that effective 10/30/14, your license/right to operate 

a motor vehicle is suspended for 180 days for CHEM TEST REFUSAL" 

on October 30, 2014, in Lynnfield. This letter, like the one 

dated August 31, 2015, informed the defendant of his right to a 

hearing to contest the suspension. 

7 The letter dated January 14, 2015, stated, "You are hereby 

notified that effective 01/24/15, your license/right to operate 

a motor vehicle is revoked for an additional 1 year for DWI 

LIQUOR." The letter included a notation that the defendant's 

license was already under suspension due to his "CHEM TEST 

REFUSAL" on October 30, 2014. A virtually identical letter 

dated January 21, 2015, extended the revocation, effective April 

28, 2015. 

8 In addition, in letters dated September 2 and September 3, 

2015, respectively (after the incident at issue here), the 

defendant was informed first that his license would be suspended 

(effective ninety days from the date of the letter) for "an 

indefinite period" as a result of an outstanding default or 

arrest warrant, and then that the pending license suspension was 

removed because the warrant had been cleared. See note 4, 

supra.
8

and seat belt and lane violations. Two entries were related to 

the defendant's refusal to submit to a chemical test on October 

30, 2014, and August 28, 2015, and specify that the defendant's 

driver's license had been suspended due to his "CHEM TEST 

REFUSAL" on both dates. 

Discussion. 1. Refusal evidence. The defendant argues

that evidence of his refusal to submit to a "CHEM TEST" violated 

his right against self-incrimination under art. 12 of the

Massachusetts Declaration of Rights. Because the defendant did 

not object to the admission of the RMV records, our review is 

limited to determining whether an error occurred and, if so, 

whether the error resulted in a substantial risk of a 

miscarriage of justice. See Commonwealth v. Beaulieu, 79 Mass. 

App. Ct. 100, 103 (2011).

"In Massachusetts it is settled that at a criminal trial, 

evidence that the defendant refused to consent to a blood test 

or analysis of breath to detect alcohol is not admissible." 

Commonwealth v. Ranieri, 65 Mass. App. Ct. 366, 370-371 (2006),

citing Commonwealth v. Zevitas, 418 Mass. 677, 681-684 (1994);

Opinion of the Justices, 412 Mass. 1201, 1210-1211 (1992). 

"Underlying the reasoning in this line of cases is the 

proposition that refusal evidence is testimonial in nature and 

that its admission violates the privilege against selfincrimination under the Declaration of Rights of the 
9

Massachusetts Constitution." Ranieri, supra at 371. See 

Commonwealth v. AdonSoto, 475 Mass. 497, 500 (2016).

The Commonwealth argues there was no reversible error for 

two reasons. First, the Commonwealth asserts that, because the 

prosecutor did not draw the jurors' attention to the various 

notations and entries in the RMV records that reflected the 

defendant's refusal to submit to a chemical test, the defendant 

was not harmed. This assertion is not supported by the record. 

The prosecutor referred to the documents at issue during her 

opening statement and relied upon them during her closing 

argument.9 More fundamentally, it matters not whether the 

prosecutor referred to the documents. We expect that jurors 

will review documents that are admitted in evidence without 

qualification, and we do not condone the notion that juries will 

 

9 In her opening statement, the prosecutor stated that the 

booking officer, Sergeant David Pressley, would "provide [the 

jury with] information that connects the dots between the series 

of paperwork that [the Commonwealth] will be admitting as 

exhibits. He will be providing pieces of that puzzle that . . . 

will then connect the defendant to the paperwork documenting the 

fact that that was the reason why his license was suspended." 

Later, in her closing argument, the prosecutor referred to 

individual pages of the exhibits, including the RMV letters, and 

stated that the documents "explain why [the defendant's] license 

is suspended." While the prosecutor likely was attempting to 

draw the jury's attention to the defendant's prior OUI 

conviction as the basis for the license suspension, as we have 

noted, the exhibits also indicate that the defendant's license 

was suspended for his refusal to submit to a chemical test.
10

consider only information to which they are specifically 

directed.

Second, the Commonwealth claims that, even if the jury did 

review the records, the jury would not have understood the 

meaning of the words "CHEM TEST" or "CHEM TEST REFUSAL." We 

reject this assertion. Almost two decades ago, we observed that 

"there is widespread public information and common knowledge 

about breathalyzer testing." Commonwealth v. Downs, 53 Mass. 

App. Ct. 195, 199 (2001). Presumably, the public's knowledge of 

such testing has not declined. In any event, we have no 

difficulty concluding that jurors are capable of understanding 

that the term "CHEM TEST" refers to a breathalyzer or blood 

test. 

The inclusion of documents that contain references to the 

defendant's refusal to submit to a chemical test, as here,

implicates the same concerns that the Supreme Judicial Court 

addressed in Opinion of the Justices, 412 Mass. at 1209-1211. 

Specifically, the notations referring to the defendant's "CHEM 

TEST REFUSAL" on August 28, 2015, could lead the jury to 

speculate that the defendant refused to submit to testing

because he believed or suspected that he had had too much to 

drink. Speculation of this nature could lead to "distinct 

prejudice to a defendant." Downs, 53 Mass. App. Ct. at 199. 

The admission of the RMV records without redaction of, at a 
11

minimum, all references to the defendant's refusals to submit to 

a chemical test was, therefore, error.10

We now turn to the question whether the error created a 

substantial risk of a miscarriage of justice. In our review, we 

consider four factors: "[(1)] the strength of the 

Commonwealth's case[; (2)] the nature of the error[; (3)] the 

significance of the error in the context of the trial[;] and

[(4)] the possibility that the absence of an objection was the 

result of a reasonable tactical decision" (citation omitted). 

Commonwealth v. Bolling, 462 Mass. 440, 452 (2012). 

The first factor, the strength of the Commonwealth's case, 

presents a close question. "Because the defendant was tried 

solely on a theory of impaired operation,[11] the Commonwealth was 

required to prove beyond a reasonable doubt that alcohol 

diminished the defendant's ability to safely operate a motor 

vehicle." Commonwealth v. Gibson, 82 Mass. App. Ct. 834, 837 

(2012). Although the defendant clearly exhibited signs of 

intoxication, and evidence that he drove on a sidewalk was 

 

10 The defendant's challenge to the RMV records is based 

only on the improper references to his refusals to submit to a 

chemical test. However, at retrial, we anticipate that further 

redaction will be necessary. See note 4, supra.

11 "As opposed to a per se violation. See G. L. c. 90, 

§ 24(1)(a)(1)." Commonwealth v. Gibson, 82 Mass. App. Ct. 834, 

837 n.3 (2012).
12

sufficient to prove impaired operation, the evidence was not 

overwhelming. The defendant essentially was stopped for taking 

a shortcut along the sidewalk to avoid traffic. See id. 

(defendant was stopped "for an essentially technical violation:

running a red light after safely stopping and looking both 

ways"). Furthermore, there was evidence that the sidewalk was 

wide enough to permit the passage of motor vehicles, and the 

presence of parked vehicles on the sidewalk, as depicted in the 

photographs introduced by trial counsel, permitted the inference 

that the sidewalk was used by drivers as well as pedestrians. 

Moreover, Officer Launie testified that he did not observe any 

impairment in the defendant's driving as the officer activated 

his emergency lights and followed the defendant as he drove down 

the sidewalk and into the parking lot. 

In regard to the second and third factors, as we observed 

in Gibson, supra at 838, "the error . . . is constitutional in 

nature, and is one that our courts have deemed prejudicial." We 

therefore consider the error to be a serious one. Lastly, as to 

the fourth factor, there is no possibility that the absence of 

an objection was due to anything but inadvertence. "In sum,

. . . we 'have a serious doubt whether the result of the trial 

might have been different had the error not been made.'" Id., 

quoting Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).
13

2. Sufficiency of the evidence. In order to obtain a

conviction on the charge of operating a motor vehicle after his 

license had been suspended for a prior OUI, the Commonwealth was 

required to prove, beyond a reasonable doubt, "(1) that the 

defendant operated a motor vehicle; (2) that at the time of that 

operation the defendant's license was revoked or suspended; 

(3) that the license suspension or revocation was pursuant to a 

violation of one of the specified statutory sections (including 

[OUI] in violation of G. L. c. 90, § 24 [1] [a]); and (4) that 

the defendant was notified that his license had been suspended 

or revoked" (citation omitted). Commonwealth v. Oyewole, 470 

Mass. 1015, 1016 (2014). The defendant concedes that the 

evidence was sufficient to establish the first three elements. 

As to the fourth element, however, the defendant contends that 

the Commonwealth failed to satisfy its burden of proof. 

The element of notice can be proved by evidence showing 

that the defendant had actual (or constructive) knowledge of the 

suspension. See Commonwealth v. Deramo, 436 Mass. 40, 51-52

(2002) (defendant's actual knowledge of license revocation was 

proved by own admission); Commonwealth v. Norman, 87 Mass. App. 

Ct. 344, 345 (2015) (defendant's admission at time of stop that 

he did not have license, coupled with evidence that RMV had 

mailed notice of suspension to defendant's address, deemed 

sufficient). Or, as is more often the case, notice may be 
14

proved by proof of proper mailing of a notice of suspension by 

the RMV. See Deramo, 436 Mass. at 50-51, and cases cited. The 

Commonwealth need not prove that the defendant in fact received 

the notice. Rather, proof that the RMV properly mailed a notice 

is sufficient. See Commonwealth v. Koney, 421 Mass. 295, 303-

304 (1995), citing Commonwealth v. Crosscup, 369 Mass. 228, 239

(1975) (proper mailing is prima facie evidence of receipt).

The Commonwealth argues that the evidence establishes the 

defendant's actual knowledge that his license was suspended 

because (1) he did not produce a license when asked to do so by 

Officer Launie, and offered no reason why his girl friend would 

have his license; and (2) the docket sheet of his January, 2015, 

guilty plea indicates a two-year loss of license, and the 

multiple RMV documents showing his license suspension also 

contain accurate identifying information about the defendant. 

Even viewed in the light most favorable to the Commonwealth, 

these facts are not sufficient. While it is true that the 

defendant did not produce a license, he made no admissions. 

Contrast Deramo, 436 Mass. at 51-52; Norman, 87 Mass. App. Ct. 

at 345-346. Furthermore, given the decision of the Supreme

Judicial Court in Oyewole, 470 Mass. at 1016, we cannot conclude 

that the docket sheet from the defendant's guilty plea to OUI in 

January of 2015 is sufficient to establish that the defendant 

knew his license was suspended when he was stopped seven months 
15

later in August. Here, as in Oyewole, the docket sheet permits 

an inference that the defendant was present in court when his 

license was suspended, but the Commonwealth offered no evidence 

to show that the suspension was communicated to him.12 Contrast

Commonwealth v. Wilson, 90 Mass. App. Ct. 166, 169-170 (2016) 

(notice of suspension could be inferred where defendant could 

not provide license when he was stopped by State trooper and 

evidence showed that, nineteen days before stop, defendant had 

admitted to sufficient facts on charge of operating motor 

vehicle after license had been suspended). 

Lastly, there was no evidence to prove the RMV's proper 

mailing of any of the notices of suspension to the defendant. 

There was no testimony from an individual familiar with the 

RMV's procedures pertaining to notification by mail. Contrast

Norman, 87 Mass. App. Ct. at 345 (Commonwealth offered testimony 

of RMV branch manager concerning RMV's "system" of providing 

notice of license suspension); Commonwealth v. Lopes, 85 Mass. 

App. Ct. 341, 351 (2014) (RMV branch manager trained in "how an 

individual's license is suspended and how the RMV provides 

 

12 As the court observed in Oyewole, 470 Mass. at 1016 n.3, 

a transcript of the plea hearing might have established whether 

the defendant was informed of the suspension of his license. 

However, no transcript was offered in evidence at trial. 

Similarly, it would be a different matter if the docket 

reflected that the defendant acknowledged in court that his 

license was suspended.
16

notification to that individual by mail" testified that notice 

was sent to defendant's address by means of letter). Nor did 

the Commonwealth introduce a certification from the RMV that 

notice was sent to the defendant. See Deramo, 436 Mass. at 51. 

Compare Commonwealth v. Parenteau, 460 Mass. 1, 6 (2011). 

Contrast Commonwealth v. Royal, 89 Mass. App. Ct. 168, 174 

(2016). The Commonwealth, therefore, did not meet its burden of 

proving every element of the offense beyond a reasonable doubt.

Conclusion. The judgment on the charge of OUI, third 

offense, is reversed, and the verdict is set aside. The

judgment on the charge of operating a motor vehicle after 

license suspension as a result of a prior OUI conviction is 

reversed, the verdict is set aside, and judgment shall enter for 

the defendant on that charge.

So ordered.