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15-P-117 Appeals Court

JOSEPH L. BURKE vs. BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY 

POLICIES AND BONDS & another.1

No. 15-P-117.

Suffolk. March 16, 2016. - September 12, 2016.

Present: Cohen, Katzmann, & Blake, JJ.

Board of Appeal on Motor Vehicle Liability Policies and Bonds.

Motor Vehicle, Board of Appeal on Motor Vehicle Liability 

Policies and Bonds, Operating under the influence, License 

to operate, Homicide. License. Registrar of Motor 

Vehicles, Revocation of license to operate. Administrative 

Law, Agency's interpretation of statute. Statute, 

Construction, Retroactive application.

Civil action commenced in the Superior Court Department on 

December 9, 2013.

The case was heard by Edward P. Leibensperger, J., on a 

motion for judgment on the pleadings, and a motion for 

reconsideration was considered by him.

Brian K. Wells for the plaintiff.

David R. Marks, Assistant Attorney General, for the 

defendants.

 

1 Registry of Motor Vehicles.
2

KATZMANN, J. In this appeal, we are again asked to 

consider whether a lifetime suspension is appropriate for a 

driver who, after having committed an operating under the 

influence (OUI) offense, causes a fatality in the course of a 

second OUI offense. Plaintiff Joseph Burke appeals from a 

judgment of the Superior Court upholding a decision of the 

defendant Board of Appeal on Motor Vehicle Liability Policies 

and Bonds (Board) that affirmed the denial by the Registrar of 

Motor Vehicles (registrar) of Burke's application for 

reinstatement of his driver's license pursuant to G. L. c. 90, 

§ 24(1)(c)(4), as amended through St. 1982, c. 373, § 4, as well 

as the registrar's permanent revocation of that license, on the 

basis that Burke's second drunk driving offense resulted in a 

fatality.2 We affirm.

Background. On February 27, 2000, Burke, was arrested for 

OUI after a motor vehicle accident in Rehoboth. On May 1, 2000, 

Burke admitted to sufficient facts for a finding of guilty of 

OUI in connection with the February incident but received the 

benefit of a continuance without a finding of guilty (CWOF) for 

one year until May 1, 2001, during which time he was placed on 

 

2 Burke brought his action in Superior Court pursuant to 

G. L. c. 30A, § 14, and then moved for judgment on the 

pleadings, which was denied. The judge also denied Burke's 

motion for reconsideration.
3

probation. The terms of his probation included a 180-day loss 

of license and an assignment to an alcohol education program.

On August 6, 2000, while still on probation with his 

license suspended as a result of the incident the previous 

February, Burke drove a motor vehicle when intoxicated, and was 

responsible for a motor vehicle accident in Milton in which his 

passenger, Patrick Connolly, sustained fatal injuries.3 On 

December 28, 2000, Burke pleaded guilty to manslaughter; OUI, 

second offense; and operating after his license had been

suspended for OUI in connection with the fatal accident in 

August, 2000. As part of the probationary portion of his 

sentence, Burke was required to wait ten years after his release 

from incarceration before he could apply to have his license 

reinstated.

On January 11, 2001, after his guilty plea in the fatal

accident, the CWOF on Burke's prior offense was revoked and a 

guilty conviction and sentence were imposed.

 

3 As found by the board, Burke lost control of the motor 

vehicle while driving home from a party; the car traveled across 

northbound and southbound lanes of a Milton road, left the road, 

rolled over several times, and struck a tree and numerous 

boulders before stopping. Shortly after the accident, the 

police "observed that Burke's speech was slurred, his eyes were 

red and glassy, and there was a strong odor of alcohol emanating 

from his breath. Burke stated that he was drunk and that the 

officer needed to arrest him." The police report stated that 

the ethyl alcohol level was 215, which converted to 0.18% blood 

alcohol content.
4

Burke applied to have his driver's license reinstated in 

August, 2013. Burke was initially notified that his license had 

been revoked for fifteen years. After Burke appealed the 

fifteen-year revocation, and pursuant to further review of his 

file by the Registry of Motor Vehicles (RMV), the registrar 

ultimately notified Burke that he was subject to a lifetime 

revocation because of his manslaughter conviction. The board 

affirmed, finding after a November 7, 2013, hearing "that the 

[r]egistrar's order revoking Burke's license for life for a 

conviction of manslaughter in which alcohol was involved, with a 

prior [OUI] conviction is legal and proper, the statute does not 

contain a statutory provision for granting a hardship and it is 

not appropriate to terminate the license revocation."

4

Discussion. Burke raises a number of arguments on appeal 

that can be broadly placed into two categories. The first is 

that the proper construction of G. L. c. 90, § 24(1)(c)(4), 

provides for only a ten-year license suspension to be imposed on 

a driver's first fatal drunk driving accident regardless of 

whether that driver was previously convicted of OUI and that a 

driver must have been involved in two separate OUIs with a 

 

4 The board did "credit[] Burke's testimony that he is now 

sober and a changed man. He expressed remorse for his actions. 

He has strong family support. However, . . . [a] multiple-[OUI]

offender who caused the death of someone while operating under 

the influence of liquor is a significant threat to public 

safety."
5

fatality before becoming subject to lifetime license revocation. 

Second, he raises a number of arguments challenging the 

application of § 24(1)(c)(4) in his case.

1. Standard of review. "Appellate review under G. L. 

c. 30A, § 14, is limited to determining whether the agency's 

decision was unsupported by substantial evidence, arbitrary and 

capricious, or otherwise based on an error of law." Haverhill 

Ret. Sys. v. Contributory Ret. Appeal Bd., 82 Mass. App. Ct. 

129, 131 (2012) (quotation and citation omitted). However, we 

review questions of statutory interpretation de novo, giving 

substantial deference to a reasonable interpretation of a 

statute by the administrative agency charged with its 

administration and enforcement. Anawan Ins. Agency, Inc. v. 

Division of Ins., 459 Mass. 592, 596 (2011). As the party 

challenging an agency decision under G. L. c. 30A, § 14, Burke 

has the burden of proof to demonstrate the invalidity of the 

administrative determination. Scheffler v. Board of Appeal on 

Motor Vehicle Liab. Policies & Bonds, 84 Mass. App. Ct. 904, 906 

(2013).

2. Statutory interpretation. Burke contends that a proper 

analysis of the statute and its history compels the conclusion 

that a lifetime suspension under § 24(1)(c)(4)5 requires two 

 

5 Section 24(1)(c)(4) provides: "[N]o new license shall be 

issued or right to operate be reinstated by the registrar to any
6

fatal accidents and that the board erroneously interpreted the 

statute to impose a lifetime suspension where a second OUI 

offense resulted in a fatality but no prior OUI offense did. 

"Because the interpretive question here is purely a legal one, 

and because the duty of statutory interpretation rests 

ultimately with the courts, we review the board's interpretation 

de novo." Souza v. Registrar of Motor Vehicles, 462 Mass. 227, 

229-230 (2012) (Souza) (citation, quotation marks, and textual 

alteration omitted). In Stockman v. Board of Appeal on Motor 

Vehicle Liab. Policies & Bonds, 62 Mass. App. Ct. 159, 161 

(2004) (Stockman), we rejected the very same argument made by 

Burke here. Stockman is indistinguishable and controlling.6

 

person convicted of a violation of subparagraph (1) of paragraph 

(a) until ten years after the date of conviction in case the 

registrar determines upon investigation and after hearing that 

the action of the person so convicted in committing such offense 

caused an accident resulting in the death of another, nor at any 

time after a subsequent conviction of such an offense, whenever 

committed, in case the registrar determines in the manner 

aforesaid that the action of such person, in committing the 

offense of which he was so subsequently convicted, caused an 

accident resulting in the death of another."

6 Burke relies on various historical materials that discuss 

§ 24(1)(c)(4). However, the construction in Stockman is based 

on the clear and unambiguous text of the statute. Furthermore, 

the bulk of Burke's materials simply indicates that the 

Legislature had considered, but ultimately decided against, a 

lifetime revocation for even a first-time OUI offender who 

causes a fatality. These materials are not inconsistent with a 

determination that a lifetime suspension is appropriate for a 

driver who, after having committed an OUI, causes a fatality in 

the course of a second OUI offense.
7

3. Application of lifetime revocation to Burke. Having 

concluded that the registrar's interpretation of § 24(1)(c)(4) 

is correct, the question remains whether there was error in its 

application to Burke. In this regard, Burke contends that he is 

not subject to the lifetime revocation because the CWOF on his 

first OUI offense that was still in effect when he was convicted 

in connection with the fatal accident is not a sufficient 

predicate conviction, that the board's actions constituted 

impermissible retroactive application of a harsher 

interpretation of § 24(1)(c)(4), that the thirteen-year delay 

and repudiation of previous notices violates his due process 

rights, and that he detrimentally relied on indications that his 

suspension would not exceed ten years.

a. Predicate conviction. In his complaint and the 

proceedings below, Burke contended that § 24(l)(c)(4) had been 

repealed by "Melanie's Law" (enacted to protect the public from 

drunk drivers) and that the board had improperly applied a 

repealed statute to him that was no longer in effect. In 

rejecting this claim, the motion judge cited Commonwealth v. 

Maloney, 447 Mass. 577, 584 (2006) (Maloney), for the 

proposition that the deletion of § 24(l)(c)(4) by the 2005 

statute known as Melanie's Law, St. 2005, c. 122, § 6A, was "an 

apparent clerical error" and that courts will accordingly "read 

§ 6A of Melanie's Law as replacing G. L. c. 90, § 24(4), not 
8

§ 24(l)(c)(4)."

7 On appeal, Burke does not quarrel with this 

reasoning or otherwise press his argument that the Legislature 

inadvertently deleted or repealed § 24(1)(c)(4) when it enacted 

Melanie's Law in 2005. We thus proceed with the understanding 

that § 24(1)(c)(4) continues in effect.8

As he did below, Burke notes on appeal that his conviction 

for the earlier OUI (from the February 27, 2000, accident) was 

not entered until January 11, 2001, when the CWOF was vacated 

and replaced with a conviction.9 Because his conviction was 

 

7 In Maloney, supra at 584, the Supreme Judicial Court 

stated: "[D]ue to an apparent clerical error, St. 2005, c. 122, 

§ 6A, states that it replaces G. L. c. 90, § 24(1)(c)(4), a 

completely different provision of the statute concerning the 

reinstatement of licenses by the registrar of motor vehicles,

rather than G. L. c. 90, § 24(4)," which was a provision 

governing proof of prior OUI convictions. "Where, as here, a 

statute contains an obvious clerical error, a court may depart 

from the statute's literal meaning in order to effectuate 

legislative intent. Accordingly, we read § 6A of Melanie's Law 

as replacing G. L. c. 90, § 24(4), not [G. L. c. 90,]

§ 24(1)(c)(4)." Ibid. (declining to "infer the Legislature's 

ratification of this error from the mere fact that it has yet to 

be corrected") (citations omitted).

8 The question posed in the case before us with respect to 

§ 24(1)(c)(4) is not precisely the same as that addressed in 

Maloney as, inter alia, here the "apparent clerical error" 

completely deleted the text of the provision at issue from the 

books as opposed to leaving two somewhat conflicting versions of 

the same provision. See Maloney, supra at 584.

9 In Commonwealth v. Doe, 473 Mass. 76, 81-82 (2015), the 

Supreme Judicial Court explained the progression from CWOF to 

conviction thusly:

"'An admission to sufficient facts followed by a 

continuance without a finding is not a "conviction"
9

entered after his December 28, 2000, manslaughter conviction for 

the fatal August 6, 2000, accident, he contends on appeal, as he 

did below, that the conviction for manslaughter by OUI was not a 

"subsequent conviction" for the purposes of § 24(1)(c)(4), and 

that the board erred in imposing a lifetime revocation of his 

driver's license. In his thoughtful memorandum, the motion 

judge agreed with the board's rejection of this claim, noting, 

inter alia, that where, consistent with Stockman, supra, the 

manifest purpose of the statute is to remove from the road a 

person who causes a death by an OUI after the commission of an 

earlier OUI, Burke's interpretation contravenes the 

Legislature's goal and is unreasonable. We need not resolve 

this argument because we determine that at the time of his 

 

under Massachusetts law.' Commonwealth v. Villalobos, 

437 Mass. 797, 802 (2002). Rather, where a judge 

continues a case without a finding, a guilty finding 

is not entered and the case is 'continued without a 

finding to a specific date thereupon to be dismissed, 

such continuance conditioned upon compliance with 

specific terms and conditions or that the defendant be 

placed on probation.' G. L. c. 278, § 18. See 

Commonwealth v. Mosher, 455 Mass. 811, 822 (2010) ('A 

continuance without a finding closely resembles a 

sentence of straight probation, except that the former 

is not a "conviction" under State law if the defendant 

successfully completes the period of probation or 

complies with the terms and conditions set by a 

judge'). Although a judge may enter a guilty finding 

in a case continued without a finding after a 

defendant fails to comply with the terms of probation, 

a person charged with a[n]. . . offense and granted a 

continuance without a finding is not convicted of the 

. . . offense unless and until there is such a guilty 

finding."
10

application in 2013 for reinstatement of his license, the board 

was required to impose a lifetime revocation.

Pertinent to our analysis of Burke's claims is that 

§ 24(1)(c)(4) was effectively modified by St. 2012, c. 139, 

§ 98, which, after the opinion in the Souza case, supra, added 

the words "or admits to a finding of sufficient facts" into the 

definition of "convicted" in G. L. c. 90, § 24(1)(d). As a 

result, the admission to sufficient facts that Burke made in 

connection with the CWOF he initially received for his first OUI 

offense, which had not yet been converted into a guilty finding 

at the time of his conviction on the second OUI offense, is now, 

for purposes of § 24(1)(c)(4), a "conviction" -- and properly 

could be so classified at the time of Burke's application for 

reinstatement in 2013. Compare Souza, 462 Mass. at 230-235 

(prior to the 2012 amendments, an admission to sufficient facts 

followed by a CWOF was not a "conviction" under § 24[1][d], 

which defines the term "convicted" for purposes of all the 

subsections of § 24[1]).

b. Retroactive application. The "purpose [of license 

revocation] is to protect the public from future harm by 

depriving the unsafe or irresponsible driver of his or her 

authority to continue to operate a motor vehicle. Because its 

main purpose is public safety rather than punishment, revocation 

of a driver's license is properly characterized as nonpunitive." 
11

Luk v. Commonwealth, 421 Mass. 415, 426-427 (1995) (Luk). See 

Powers v. Commonwealth, 426 Mass. 534, 540 (1998) (Powers)

(board's "administrative license suspension and revocation 

sanctions under G. L. c. 90 are nonpunitive"). When Burke 

sought reinstatement of his license in 2013, the registrar was 

obligated to apply the statute as it was in effect at the time 

Burke made his request. Application of the statute in this 

manner does not raise ex post facto concerns, as "civil remedies 

are not subject to the prohibition against ex post facto laws"

and "the Supreme Judicial Court, on numerous occasions, has 

ruled that statutes imposing conditions on eligibility for 

continued licensure are remedial and nonpunitive in nature." 

Gordon v. Registry of Motor Vehicles, 75 Mass. App. Ct. 47, 50, 

51-52 (2009) (Gordon). In short, where § 24(1)(c)(4) remains in 

force, there is no question here of retroactive application of 

that statute by the board. The application was contemporaneous, 

triggered by Burke's request for reinstatement of his right to 

operate. Cf. Gordon, supra at 56 (application of an ignition 

interlock requirement enacted subsequent to the plaintiff's 

convictions that made him subject to the requirement "was not 

retroactive as the event triggering the requirement was 

[plaintiff's] decision to seek the reinstatement of his license, 

which occurred after the statute went into effect, and not his 

prior OUI conviction"). Section 24(1)(c)(4) is a prohibition on 
12

the issuance of new licenses and the reinstatement of the right 

to operate by the registrar. While the registrar can act 

proactively to notify drivers of lifetime revocations under the 

statute prior to the motorist taking affirmative steps for 

reinstatement, it is apparent that an application for a license 

or reinstatement of a right to operate requires the registrar to 

act at that time to determine whether she shall or shall not 

grant the request. In sum, at the time of Burke's application 

for reinstatement in 2013, the registrar was required to impose 

the lifetime revocation in accordance with Stockman's 

interpretation of the statute and the 2012 amendment to 

§ 24(1)(d).10

c. Due process and detrimental reliance. On November 28, 

2003, the registrar notified Burke in writing that his driver's 

license was being revoked for two years as a result of (1) OUI 

on August 6, 2000; (2) driving on a suspended license on August, 

6, 2000; and (3) the OUI offense he committed in February, 2000, 

for which he received a CWOF and was assigned to an alcohol 

program. Burke's conviction of manslaughter was not noted. On 

 

10 There is also no merit to Burke's contention that the 

registrar's interpretation of § 24(1)(c)(4) has become more 

harsh since his conviction. Even prior to Burke's fatal 

accident, the registrar imposed lifetime suspensions for 

similarly situated drivers. See, e.g., Callahan v. Board of 

Appeal on Motor Vehicle Liab. Policies & Bonds, 90 Mass. App. 

Ct. (2016) (lifetime suspension under § 24[1][c][4] imposed 

in June, 1999, where the driver was twice convicted of OUI and a 

second OUI resulted in a fatality).
13

December 6, 2005, the registrar notified Burke that he was now 

eligible to have his right to operate a motor vehicle 

reinstated. Burke claims that he detrimentally relied on these 

previous communications from the RMV and the terms of his plea 

agreement (requiring him to wait only the ten years of his 

probationary term before applying to have his license 

reinstated) in developing the settled expectation that he would 

be eligible to drive again after those ten years had elapsed. 

In the context of that detrimental reliance, Burke claims he was 

prejudiced by the registrar's delay in implementing the lifetime 

revocation.

But Burke cannot show that the delay between the incident

and the lifetime suspension in 2013 actually unfairly prejudiced 

him. His license was already suspended when he caused the fatal 

accident in August, 2000, and remained suspended for various 

reasons until August, 2013. Because the terms of § 24(1)(c)(4) 

are mandatory, the registrar could not have lawfully reinstated 

Burke's license in 2013. Burke's unsettled expectations11 cannot 

change the registrar's statutory obligation to impose the 

 

11 We note that, based on the brief duration of the 

suspension (two years) and the absence of any reference to 

manslaughter or homicide charges in the 2003 notice, Burke 

either knew or should have known that a mistake had been made 

and that the suspension he received then, which expired in 2005, 

did not reflect the fatality his drunk driving had caused.
14

lifetime suspension at the time that Burke applied for 

reinstatement.

For this same reason, Burke also cannot show that the 

registrar acted arbitrarily or capriciously or violated his 

substantive due process rights. "Substantive due process 

prohibits the government from engaging in conduct that shocks 

the conscience or interferes with rights implicit in the concept 

of ordered liberty." Gordon, supra at 55 (quotations and 

citations omitted). See also Rumford Pharmacy, Inc. v. East 

Providence, 970 F.2d 996, 1000 n.8 (1st Cir. 1992) ("A complaint 

pleads a substantive due process violation by a local 

administrative agency only if the facts alleged are shocking or 

violative of universal standards of decency" [quotation and 

citation omitted]). In addition, because the deprivation of a 

driver's license implicates no fundamental rights, the due 

process inquiry is relaxed. Gordon, supra at 55. "In 

Massachusetts, one's right to operate a motor vehicle is a 

privilege voluntarily granted. Continued possession of this 

privilege is conditioned on obedience to the Legislature's 

comprehensive regulatory scheme aimed at regulating the 

motorways and keeping them safe." Luk, 421 Mass. at 423 

(citation omitted). The board's compliance with the 

Legislature's comprehensive regulatory scheme cannot be 
15

considered arbitrary or capricious, and it certainly does not 

shock the conscience.

Although Burke does not characterize them as such, many of 

his arguments essentially seek to estop the registrar from 

departing from the promises Burke believes were implied in his 

plea agreement and the 2003 and 2005 notifications. These 

arguments fail. "Generally, the principles of estoppel are not 

applicable against the government in connection with its 

exercise of public duties, particularly when the government is 

acting in the public interest and safety, as its duly 

constituted officials see that interest. . . . Governmental 

officials need to be free to act in accordance with their 

constitutional and statutory authority in such manner as they 

think is in the public interest without encumbrance from earlier 

collateral decisions which may have suggested a different 

tendency so far as the public issue is concerned." Municipal 

Light Co. of Ashburnham v. Commonwealth, 34 Mass. App. Ct. 162, 

167, cert. denied, 510 U.S. 866 (1993). For the reasons we have 

stated, the registrar here was acting pursuant to her statutory 

mandate and in the public interest and safety.

Burke has also failed to show that anything in his plea 

agreement would preclude the lifetime revocation of his license. 

In Commonwealth v. Cruz, 62 Mass. App. Ct. 610 (2004), we found 

that even "[p]utting aside the settled proposition that 
16

Massachusetts courts are reluctant to apply equitable estoppel 

against the Commonwealth," the Commonwealth's pursuit of civil 

commitment for a convicted sex offender was not a breach of the 

offender's plea agreement where the agreement did not expressly 

prohibit such proceedings subsequent to the offender's 

completion of his sentence and, inter alia, "civil commitment is 

a collateral consequence of a criminal conviction which need not 

be addressed at the plea hearing in order for the plea to be 

valid." Id. at 613. Similar reasoning applies to the 

collateral consequence of the registrar's revocation of Burke's 

driving privilege here where, as has been noted, it is 

established that "administrative license suspension and 

revocation sanctions under G. L. c. 90 are nonpunitive." 

Powers, 426 Mass. at 540. In rejecting the double jeopardy 

challenge in Powers, the Supreme Judicial Court made it clear 

that license revocations by the registrar are independent of the 

criminal charges pursued by the Commonwealth for the same 

incident.

Finally, Burke has also failed to make out a violation of 

his procedural due process rights. See Gillespie v. 

Northampton, 460 Mass. 148, 156-158 (2011).

Conclusion. Where the statutory construction applied by 

the board was not only reasonable but required by our case law 

and was applied contemporaneously with his application for 
17

reinstatement, Burke cannot meet his burden of demonstrating the 

invalidity of the administrative determination.

Judgment affirmed.