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SJC

- 1 2 4 42

COMMONWEALTH vs

. JOS E NAS CIMENTO.

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.

C omplaint 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 th e Appeals Court.

Helle Sachse , Assistant District Attorney ( James J. Me g ee , Assistant District Attorney , also present) for the Commonwealth. Shannon Dale , Committee for Public Counsel Services, for the defendant

.

BUDD , J. General L aws c

. 90, § 23, third par. (§ 23, third

par.) , pr o vides for a mandatory minimum sentence of sixty days

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

vehicle after the suspen sion or revo cation of an individual's2

driver's license for operating while under th e influence of

alcohol or controlled substances (OUI)

. Here we are asked to

d etermine wh ether the defendant, Jos e Nascimento, who operated a

motor vehicle after his license was administratively suspended

pursuant to G. L. c. 90, § 24 (1) ( f ) (2) , 1 was pro perly 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 t he defendant

was not properly charged under that statute. A ccordingly, 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 p olice troope r

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 f ield sobriety tests were

conducted , which indicat ed 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 G eneral 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 an d 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 th irty days. T he 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 t rooper 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 t he 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 h is 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 c harge of operating

after a suspension for OUI

. C oncluding 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

. W e 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 :

" A ny 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

[ § 24D 3 ], [24E 4 ], [24G 5 ], [ 24L 6 ], or [24N 7 ] 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 G eneral Laws c. 90 , § 24D , states in pertinent part : "A ny 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 G eneral Laws c. 90 , § 24E , states in pertinent part : "W here 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 G eneral Laws c. 90 , § 24G , states in pertinent part : "W hoever

. . . 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 G eneral Laws c. 90 , § 24L , states in pertinent part : "W hoever

. . . 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 s afety of the public might be endangered, and by any such operation so described causes serious bodily injury, shall be punished by imprisonment

. . . ."

7 G eneral Laws c. 90 , § 24N , states in pertinent part : "U pon 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

. . . . "6

. . . by imprisonment . . . for not less than six ty 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 t he Commonwealth 's conten tion that

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

permitting police to suspend a licens e 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 suspen d one 's

licen s e upon the issuance of a complaint alleging OUI in

violation of G. L. c. 90, § 24 ( 1 ) ( a ) ( 1) , support its7

argument

. The re 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

.

U nder 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

pr otections and provides him or her with the opportunity to

refute evidence brought before an impartial decision maker

.
Significantly , insofar as relevant here, the enumerated

provision s in § 23, third par. , clearly afford defendant s 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 up on 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 been8

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 admin is tratively suspended for OUI

was properly dismissed

.

So ordered

.