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SJC-12442

COMMONWEALTH vs. JOSE NASCIMENTO.

Suffolk. February 6, 2018. - June 5, 2018.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, 

& Kafker, JJ.

Motor Vehicle, Operating under the influence, License to 

operate. Practice, Criminal, Dismissal.

Complaint received and sworn to in the East Boston Division 

of the Boston Municipal Court Department on February 18, 2016. 

A motion to dismiss was heard by John E. McDonald, Jr., J. 

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

Helle Sachse, Assistant District Attorney (James J. Megee, 

Assistant District Attorney, also present) for the Commonwealth.

Shannon Dale, Committee for Public Counsel Services, for 

the defendant.

BUDD, J. General Laws c. 90, § 23, third par. (§ 23, third 

par.), provides for a mandatory minimum sentence of sixty days 

in a house of correction on a conviction of operating a motor 

vehicle after the suspension or revocation of an individual's 
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driver's license for operating while under the influence of 

alcohol or controlled substances (OUI). Here we are asked to 

determine whether the defendant, Jose Nascimento, who operated a 

motor vehicle after his license was administratively suspended 

pursuant to G. L. c. 90, § 24 (1) (f) (2),1 was properly charged 

under § 23, third par. The defendant filed a motion to dismiss 

the charge in the Boston Municipal Court, which the judge 

allowed. Because § 24 (1) (f) (2) is not one of the provisions 

enumerated in § 23, third par., we conclude that the defendant 

was not properly charged under that statute. Accordingly, we 

affirm the judge's order allowing in part the motion to dismiss. 

Background. The pertinent facts, taken from the record, 

are undisputed. On January 24, 2016, a State police trooper 

stopped the defendant's vehicle after observing him commit 

several marked lane violations. Several other troopers arrived 

to assist. During the stop, the defendant was exhibiting signs 

of possible intoxication, including glassy or bloodshot eyes and 

slurred speech. A number of field sobriety tests were 

conducted, which indicated that the defendant was intoxicated. 

A breathalyzer test also was administered, which measured the 

defendant's alcohol level at 0.132 per cent. The defendant was 

 

1 General Laws c. 90, § 24 (1) (f) (2), allows police to 

confiscate immediately the license of an individual who has 

failed a breathalyzer test.
3

arrested and transported to the State police barracks, where he 

submitted to a blood alcohol test that registered his alcohol 

level to be 0.13 per cent. The defendant was given a citation 

and, pursuant to § 24 (1) (f) (2), his license was revoked and 

his right to operate a motor vehicle was administratively 

suspended for thirty days. The defendant was then arraigned 

for, among other things, OUI, in violation of G. L. c. 90, 

§ 24 (1) (a). 

While the defendant's charges were pending, on February 17, 

2016, a State police trooper performed a computer query on a 

motor vehicle that had passed him. He learned that the vehicle 

was registered to the defendant and that the defendant's license 

had been suspended for OUI. When the trooper stopped the 

vehicle, he recognized the driver from a photograph provided by 

the registry of motor vehicles. When the trooper asked the 

defendant for his license and registration, the defendant 

admitted that his license had been suspended. The defendant was 

arrested and charged with operating a motor vehicle after 

license suspension for OUI, in violation of § 23, third par.

The defendant moved to dismiss the charge of operating 

after a suspension for OUI. Concluding that § 23, third par.,

did not apply to the defendant, the judge granted the motion in 

part and dismissed the OUI portion of the charge, leaving the 

defendant charged with operating after a suspension. 
4

The Commonwealth appealed, and we transferred the case from 

the Appeals Court on our own motion. 

Discussion. We interpret the meaning of the statute under 

which the defendant was charged de novo. Commonwealth v. 

Martin, 476 Mass. 72, 75 (2016). Section 23, third par.,

provides in relevant part: 

"Any person convicted of operating a motor vehicle 

after his license to operate has been suspended or revoked 

pursuant to a violation of [§ 24 (1) (a)2], or pursuant to 

 

2 General Laws c. 90, § 24 (1) (a) (1), states in pertinent 

part: "Whoever, upon any way . . . operates a motor vehicle 

with a percentage, by weight, of alcohol in their blood of eight 

one-hundredths or greater, or while under the influence of 

intoxicating liquor . . . shall be punished . . . ." 
5

[§ 24D3], [24E4], [24G5], [24L6], or [24N7] of this chapter,

. . . or after notice of such suspension or revocation of 

his right to operate a motor vehicle without a license has 

been issued and received by such person . . . and prior to 

the restoration of such license . . . shall be punished 

 

3 General Laws c. 90, § 24D, states in pertinent part: "Any 

person convicted of or charged with operating a motor vehicle 

with a percentage, by weight, of alcohol in their blood of eight 

one-hundredths or greater, or while under the influence of 

intoxicating liquor . . . may . . . be placed on probation for 

not more than two years and shall . . . be assigned to a driver 

alcohol education program . . . , and such person's license or 

right to operate shall be suspended . . . ." 

4 General Laws c. 90, § 24E, states in pertinent part: 

"Where a person has been charged with operating a motor vehicle 

under the influence of intoxicating liquor, and where the case 

has been continued without a finding and such person has been 

placed on probation . . . a hearing shall be held by the court

. . . to determine whether dismissal of the charge is 

warranted." 

5 General Laws c. 90, § 24G, states in pertinent part: 

"Whoever . . . operates a motor vehicle with a percentage, by 

weight, of alcohol in their blood of eight one-hundredths or 

greater, or while under the influence of intoxicating liquor,

. . . and so operates a motor vehicle recklessly or negligently 

so that . . . [he] causes the death of another person, shall be 

guilty of homicide by a motor vehicle . . . ." 

6 General Laws c. 90, § 24L, states in pertinent part: 

"Whoever . . . operates a motor vehicle with a percentage, by 

weight, of alcohol in their blood of eight one-hundredths or 

greater, or while under the influence of intoxicating liquor,

. . . and so operates a motor vehicle recklessly or negligently 

so that the lives or safety of the public might be endangered, 

and by any such operation so described causes serious bodily 

injury, shall be punished by imprisonment . . . ." 

7 General Laws c. 90, § 24N, states in pertinent part: 

"Upon the issuance of a complaint alleging a violation of

[§ 24 (1) (a)] . . . the judge . . . shall, upon the failure of 

any police officer to suspend or take custody of the driver[']s

license . . . of any such defendant . . . immediately suspend 

the defendant's license or right to operate a motor vehicle

. . . ." 
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. . . by imprisonment . . . for not less than sixty days 

. . . ." 

Thus, the statute mandates a minimum sixty-day sentence upon a 

conviction of operating with a suspended license where one's 

license had been suspended under any one of the enumerated

provisions. 

Section 23 clearly enumerates the provisions that trigger 

the mandatory minimum sentence. See Commonwealth v. LeBlanc, 

475 Mass. 820, 821 (2016) ("Clear and unambiguous language is 

conclusive as to legislative intent"). Here, the defendant's 

license was suspended pursuant to § 24 (1) (f) (2), which is not

enumerated in § 23, third par. There is no indication in the 

statutory language that we should add to the list provided. See 

Commonwealth v. McLeod, 437 Mass. 286, 294 (2002) ("We will not 

add words to a statute that the Legislature did not put there

. . ."). Thus we reject the Commonwealth's contention that 

§ 24 (1) (f) (2) is merely an administrative mechanism 

permitting police to suspend a license upon a violation of 

§ 24 (1) (a), and that therefore § 23, third par., should be 

read to include § 24 (1) (f) (2).

We also disagree with the Commonwealth that the provisions 

of G. L. c. 90, § 24N, which permit a judge to suspend one's 

license upon the issuance of a complaint alleging OUI in

violation of G. L. c. 90, § 24 (1) (a) (1), support its 
7

argument. There is a significant difference between 

§ 24 (1) (f) (2), which permits police to suspend a license in 

the field immediately upon the failure of a breathalyzer test

and § 24N, where confiscation occurs after a court proceeding. 

Under the former, a defendant's license is summarily confiscated 

upon a determination made by the officer or officers who stop 

him or her, whereas "[u]nder § 24N a judge makes the 

determination of intoxication in open court on the basis of an 

objective chemical analysis supported by substantial 

documentation." Commonwealth v. Crowell, 403 Mass. 381, 385 

(1988). The process under § 24N affords a defendant more 

protections and provides him or her with the opportunity to 

refute evidence brought before an impartial decision maker. 

Significantly, insofar as relevant here, the enumerated 

provisions in § 23, third par., clearly afford defendants the 

right to a court proceeding. See notes 2-7, supra. It is 

therefore eminently reasonable for the Legislature to have 

decided to treat defendants charged with driving with a 

suspended or revoked license differently depending upon whether 

the license was suspended by police under the field confiscation 

provision of § 24 (1) (f) (2), or by a judge under the in-court 

suspension provision of § 24N. 

Finally, our interpretation of § 23, third par., is 

supported by its legislative history. Section 23 has been 
8

amended numerous times. See, e.g., St. 2006, c. 119, § 1; St. 

2005, c. 122, § 2; St. 1994, c. 318, § 2. Thus the Legislature 

has had the opportunity to include § 24 (1) (f) (2) in § 23, and 

chose not to do so. "The Legislature's silence on [a] subject 

cannot be ignored." Roberts v. Enterprise Rent-A-Car Co. of 

Boston, 438 Mass. 187, 193 (2002). 

Conclusion. For the reasons stated above, the part of the 

complaint charging the defendant with operating a motor vehicle 

after his license had been administratively suspended for OUI

was properly dismissed. 

So ordered.