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SJC-11664

COMMONWEALTH vs. RAZAK O. OYEWOLE.

December 18, 2014.

Motor Vehicle, Operation, Operating under the influence, License 

to operate. License. Notice.

The defendant appeals from his conviction, after a jurywaived trial, of operating a motor vehicle after his license had 

been suspended for operating while under the influence of 

alcohol. G. L. c. 90, § 23, third par. In a divided published 

opinion, the Appeals Court affirmed the conviction. 

Commonwealth v. Oyewole, 84 Mass. App. Ct. 669 (2014). We 

granted further appellate review, limited to the sufficiency of 

the evidence that Oyewole was notified of the license 

suspension. 467 Mass. 1108 (2014). Because we conclude that 

the evidence at trial was insufficient to prove this element 

beyond a reasonable doubt, we reverse and direct the entry of 

judgment for the defendant.

Viewing the record in the light most favorable to the 

Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677 

(1979), we briefly state the facts, which are more fully set 

forth in the Appeals Court's opinion. Oyewole, supra at 670-

671. In October, 2009, the defendant admitted to sufficient 

facts to support a finding of guilty on a charge of operating 

while under the influence of liquor (OUI case). According to 

the docket sheet from that case, his license was suspended for 

sixty days. Less than sixty days later, a Wilmington police 

officer, observing that a motor vehicle had its headlights off 

at 12:30 A.M., stopped the vehicle. The defendant was the 

driver and only occupant of the vehicle. The officer requested 

the defendant's license, which the defendant produced. The 
2

officer confiscated the license and placed the defendant under 

arrest.

As the Appeals Court stated, the Commonwealth was obligated 

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the defendant's license was revoked or suspended; (3) that the 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." Oyewole, supra at 672, quoting Commonwealth v. 

Deramo, 436 Mass. 40, 50 (2002). The evidence at this brief1

trial was sufficient to establish the first three elements, as 

it showed that the defendant operated a motor vehicle while his 

license was suspended for operating while under the influence. 

As to the fourth element, however, the evidence presented at 

trial, together with all reasonable and possible inferences that 

might properly be drawn from it, was insufficient to permit a 

reasonable fact finder to find, beyond a reasonable doubt, that 

the defendant was notified of the license suspension.2 While the 

docket sheet from the OUI case, which was in evidence, permits 

an inference that the defendant was present when his license was 

suspended, the Commonwealth did not offer any evidence 

demonstrating that the suspension was communicated to him. The 

docket sheet itself does not state that the defendant was 

 

1 The transcript reflects that the presentation of evidence, 

together with motions in limine and the defendant's motion for a 

required finding of not guilty, took less than one hour. The 

Commonwealth called two witnesses and offered two exhibits, 

namely, certain records from the registry of motor vehicles, 

which were offered solely to corroborate the defendant's 

biographical information, and the docket sheet from the case

involving the prior charge of operating while under the 

influence of liquor. The defendant presented no evidence.

2 While an inference drawn from circumstantial evidence 

"need only be reasonable and possible and need not be necessary 

or inescapable," e.g., Commonwealth v. Casale, 381 Mass. 167, 

173 (1980), our task is to determine whether "the evidence 

presented at trial, together with all reasonable and possible 

inferences that might properly be drawn from it, was sufficient 

to permit a rational [fact finder] to find beyond a reasonable 

doubt the existence of every essential element of the crimes 

charged." Commonwealth v. Arroyo, 442 Mass. 135, 139-140 

(2004).
3

notified of the suspension. The Commonwealth did not present 

evidence that the judge in the OUI case announced the suspension 

in open court.3 There is no evidence in the record that the 

docket sheet was shown to the defendant or that any other 

written notification was sent to him. Even on the assumption

that to do so was the regular practice when accepting a plea --

a proposition unsupported by the record -- the Commonwealth may 

not rely on a presumption of regularity as a substitute for 

evidence proving an element of its case beyond a reasonable 

doubt. Cf. Commonwealth v. Giordano, 8 Mass. App. Ct. 590, 592 

n.2 (1979), cert. denied, 446 U.S. 968 (1980), and cases cited 

(in prosecution for escape, Commonwealth may not rely on 

presumption of regularity to avoid proving lawfulness of 

defendant's imprisonment). There was also no evidence that the 

defendant acknowledged, at the time of the stop or at any other

time, that he was aware of the suspension.

Moreover, the evidence showed that when he was stopped, the 

defendant had his license in his possession and gave it to the 

police officer.4 When a license is suspended in connection with 

a conviction for operating while under the influence, G. L. 

c. 90, § 24D, fourth par., requires that the license be 

surrendered to the probation department. Here, however, the 

defendant apparently did not surrender his license. A possible 

reason for this is that nobody notified the defendant that his 

license was suspended.

In sum, the record contains no evidence demonstrating that 

the defendant was notified of the license suspension, and some 

evidence suggesting the contrary. The Commonwealth did not 

carry its burden of proving every element of the offense beyond 

a reasonable doubt.

Judgment reversed.

Finding set aside.

Judgment for the defendant.

 

3 A transcript of the plea hearing might easily have 

established this. However, no transcript was offered in

evidence at trial.

4 Nothing in the record suggests that this license was a 

counterfeit, a duplicate, or anything else other than the 

genuine license that had been suspended.
4

Stacy J. Silveira (George Ohlson, Jr., with her) for the 

defendant.

KerryAnne Kilcoyne, Assistant District Attorney, for the 

Commonwealth.