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SJC-12466
COMMONWEALTH vs. ERIC A. RICHARDS.
Suffolk. May 10, 2018. - September 5, 2018.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Motor Vehicle, License to operate, Operating under the
influence. Statute, Construction.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on September 26, 2017.
The case was reported by Lowy, J.
Robert J. Bender, Assistant District Attorney (Timothy
Ferriter, Assistant District Attorney, also present) for the
Commonwealth.
Steven M. Vaillancourt (Andrew Sprow also present) for the
defendant.
KAFKER, J. In 2010, the defendant's driver's license was
suspended for his refusal to consent to a breathalyzer after his
arrest for operating a motor vehicle while under the influence
of alcohol (OUI). Because the defendant had three prior
convictions of OUI when he refused the breathalyzer, his license
2
was subject to a lifetime suspension. The defendant was later
found not guilty of the 2010 OUI charge, and he immediately
moved to have his license restored, pursuant to G. L. c. 90,
§ 24 (1) (f) (1). His motion was denied. The defendant made
three subsequent motions for restoration of his license in 2011,
2015, and 2017. A judge in the District Court granted the
defendant's 2017 motion for restoration of his license.
The Commonwealth filed a petition for relief with the
single justice, pursuant to G. L. c. 211, § 3, arguing that the
defendant's license could not be restored under the statute
because he was entitled only to an "immediate" hearing on
restoration of his license, not one held seven years later, and
that allowance of the motion for the reasons stated by the judge
would essentially amount to an unconstitutional reformulation of
the statute. The single justice reserved and reported the case
to the full court. Because the plain language of the statute
and the legislative history preclude the relief requested, we
reverse.
1. Background. a. Statutory scheme. "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 v. Commonwealth, 421
3
Mass. 415, 423 (1995). Toward this end, an individual who
drives on a public road is "deemed to have consented to submit
to a chemical test or analysis of his breath or blood in the
event that he is arrested for operating a motor vehicle while
under the influence of intoxicating liquor." G. L. c. 90,
§ 24 (1) (f) (1). Failing or refusing to take such a test
results in license suspension. Id. Such "suspension serves to
deter persons from driving while intoxicated; it effectuates the
Commonwealth's interest in obtaining reliable and relevant
evidence by inducing suspected drunk drivers to take the breath
test; and it promotes safety on the highways by summary removal
of dangerous drivers." Luk, supra at 425. See Mackey v.
Montrym, 443 U.S. 1, 18 (1979) (same).
A comparison of the suspensions imposed on, and remedies
available to, drivers who take the breathalyzer test and those
who refuse it is informative. An individual who fails the
breathalyzer and is subsequently convicted of OUI faces
significant suspension consequences. See G. L. c. 90,
§ 24 (1) (c). Individuals with no prior OUI convictions who are
subsequently convicted of OUI face a one-year suspension of
their license. G. L. c. 90, § 24 (1) (c) (1). Individuals with
one prior OUI conviction face a two-year suspension. G. L.
c. 90, § 24 (1) (c) (2). Individuals with two prior OUI
convictions face an eight-year suspension. G. L. c. 90,
4
§ 24 (1) (c) (3). Individuals with three prior OUI convictions
face a ten-year suspension. G. L. c. 90, § 24 (1) (c) (3 ½).
Individuals with four prior OUI convictions face a lifetime
suspension. G. L. c. 90, § 24 (1) (c) (3 ¾). When an
individual's license is suspended pursuant to § 24 (1) (c), the
statute permits the individual to apply for issuance of a
limited license on the ground of hardship. The statute does
not, however, permit individuals subject to a lifetime
suspension to seek such a hardship license. See G. L. c. 90,
§ 24 (1) (c) (3 ¾).
An individual who refuses to take the breathalyzer faces
suspension consequences irrespective of whether he or she is
subsequently convicted of OUI. See G. L. c. 90,
§ 24 (1) (f) (1). Individuals with no prior OUI convictions who
refuse to take the test face a 180-day suspension of their
license. Id. Individuals with one prior OUI conviction face a
three-year suspension. Id. Individuals with two prior OUI
convictions face a five-year suspension. Id. Individuals with
three prior OUI convictions face a lifetime suspension. Id.
Unlike nonlifetime suspensions imposed pursuant to § 24 (1) (c),
if an individual's license is suspended for refusing to take the
5
breathalyzer, the individual is not permitted to apply for a
hardship license. See G. L. c. 90, § 24 (1) (f) (1).1
The statute does, however, provide an avenue for relief for
individuals who refuse to take the test but are subsequently
acquitted of OUI. See G. L. c. 90, § 24 (1) (f) (1). The
statute provides:
"the defendant may immediately, upon the entry of a not
guilty finding or dismissal of all charges under this
section, . . . and in the absence of any other alcohol
related charges pending against said defendant, apply for
and be immediately granted a hearing before the court which
took final action on the charges for the purpose of
requesting the restoration of said license. At said
hearing, there shall be a rebuttable presumption that said
license be restored, unless the commonwealth shall
establish, by a fair preponderance of the evidence, that
restoration of said license would likely endanger the
public safety. In all such instances, the court shall
issue written findings of fact with its decision."
Id. On appeal, we must determine whether the statute authorizes
a defendant who was acquitted to make belated, additional
motions to restore his or her license after his or her immediate
motion is denied. For the reasons discussed, we conclude that
it does not.
b. Facts. On May 6, 2010, the defendant was arrested for
OUI. He had three prior OUI convictions from 1989, 1996, and
Where a defendant refuses the breathalyzer and is later
1
convicted, the suspension period triggered by the conviction
will "run consecutively and not concurrently" with the
suspension triggered by the refusal. See G. L. c. 90,
§ 24 (1) (f) (1).
6
2001. On his arrest, he was informed that if he refused to take
the breathalyzer, his license would be suspended, pursuant to
§ 24 (1) (f) (1). The defendant chose to refuse the test. His
license was immediately suspended, and he was charged with OUI,
fourth offense.
The next day, the registry of motor vehicles suspended the
defendant's right to operate a motor vehicle for life, pursuant
to § 24 (1) (f) (1). The defendant did not seek relief under
G. L. c. 90, § 24 (1) (g).2
On November 8, 2010, a jury found the defendant not guilty
of OUI, fourth offense, and the defendant immediately moved to
have his driver's license restored. The judge who had presided
over the defendant's trial considered the motion, taking into
account the evidence presented at trial as well as the police
report and the defendant's criminal and driving history. On
November 16, 2010, the judge issued a ruling denying the motion,
concluding that "restoration of the defendant's license would
likely endanger public safety." The defendant filed a notice of
2 Pursuant to G. L. c. 90, § 24 (1) (g), a defendant may
seek a hearing before the registrar of motor vehicles within
fifteen days of arrest. This avenue of relief is very limited,
however. At such a hearing, a defendant may contest only the
following: (1) whether the police office had reasonable grounds
to believe the defendant was operating a motor vehicle while
under the influence of alcohol; (2) whether the defendant was
placed under arrest; and (3) whether the defendant refused to
submit to a breathalyzer or blood test. Id.
7
appeal, but ultimately did not seek relief in the Superior
Court.3
Nine months later, in August, 2011, the defendant filed a
motion before the same judge to "reconsider" the denial of the
defendant's motion to restore his driver's license. Following
an evidentiary hearing, the judge denied the motion, citing
facts about the defendant's criminal and driving history from
the judge's original decision. The defendant appealed from the
August, 2011, denial, but the appeal was dismissed for lack of
prosecution.4
Five years after the denial of the defendant's original
motion, in November of 2015, the defendant filed a renewed
motion to restore his driver's license. He received a hearing
on the motion in January, 2016. The 2016 motion judge was not
the judge from the defendant's trial and first two motions, as
that judge had since retired. The 2016 motion judge heard
additional facts and evidence in support of the defendant's
motion, but ultimately issued a ruling stating that the motion
was denied "at this time."
3 Pursuant to our decision in Commonwealth v. Bauer, 455
Mass. 497, 499-500 (2009), "litigants may obtain review of
§ 24 (1) (f) (1) license restoration orders entered in the
District Court by means of a certiorari action brought in the
Superior Court." See G. L. c. 249, § 4.
4 The stated reason for the dismissal was listed as
"[b]rief/appendix not received or status report not filed."
8
In August, 2017, nearly seven years after the denial of the
original motion, the defendant again filed a motion to restore
his driver's license. The motion, filed pro se, stated that the
defendant was seeking to "restore [his] driver's license or try
to get a work license from 5:00 A.M. [to] 5:00 P.M." The
defendant provided additional evidence in support of his motion,
including "information regarding his long time sobriety, lack of
any [subsequent] alcohol related offenses, and employment." The
2017 motion was heard by a judge who had not presided over any
of the prior motions or the trial. The Commonwealth objected to
the hearing, arguing that G. L. c. 90, § 24, only authorized the
defendant to receive an immediate hearing before the trial
judge, which he had received in 2010. The 2017 motion judge,
however, determined that nothing in the statute or the case law
indicated that "an individual is barred by time or requests for
reconsideration." She also concluded that the Commonwealth had
not made this argument at any of the prior motions, and thus the
Commonwealth's objection was "not timely." The 2017 motion
judge further determined that the Commonwealth had "failed to
establish that reinstatement of [the] defendant's driver's
license would endanger public safety," and granted the
defendant's motion. The order to restore the defendant's
license has been stayed pending the disposition of this case.
9
2. Discussion. On appeal, the defendant characterizes the
2017 motion judge as ruling on "reconsideration" of the
defendant's initial 2010 motion for restoration of his license.
The defendant's 2017 motion was not, however, filed as a motion
for reconsideration of his 2010 motion. Indeed, the only motion
for reconsideration in this case took place in 2011, and was
heard by the judge who had presided over the trial and who had
considered the initial motion. Accordingly, the motion is more
properly considered a new motion for restoration.
Regardless, whether characterized as a renewed motion for
restoration or a motion for reconsideration, the 2017 motion was
not authorized by G. L. c. 90, § 24, as it did not satisfy the
immediacy requirement of the statute. Indeed, the judge's
allowance of such a motion essentially created a judicial
hardship exception for a defendant who had refused the
breathalyzer, where the Legislature expressly chose to prohibit
such a remedy.
To determine the legality of the 2017 motion, we look first
to the plain meaning of the statutory language in
§ 24 (1) (f) (1). See Millis Pub. Sch. v. M.P., 478 Mass. 767,
775 (2018). "The effect given to statutory language should be
consistent with its plain language." Retirement Bd. of Stoneham
v. Contributory Retirement Appeal Bd., 476 Mass. 130, 135
(2016). "Where the language is clear and unambiguous, it is to
10
be given its 'ordinary meaning.'" Millis Pub. Sch., supra,
quoting Commonwealth v. Mogelinksi, 466 Mass. 627, 633 (2013).
Here, the statute provides that the defendant "may
immediately, upon the entry of a not guilty finding or dismissal
of all charges under this section," move to request restoration
of his or her license. G. L. c. 90, § 24 (1) (f) (1). The text
does not state that the defendant may move for, or receive, such
hearing again at a later time. Indeed, the statute makes
reference to the immediate nature of the proceeding not once,
but twice. It provides for a defendant to make a motion for
restoration of his or her license "immediately," and a hearing
on such motion must be granted "immediately." See id. The
statute also requires such motion to be made "before the court
which took final action on the charges." Id. Thus, by its
plain language, the statutory provision indicates that such
motions are to be made and heard immediately after the
defendant's acquittal, by the court which presided over the OUI
proceedings, based on the defendant's circumstances at the time
of the acquittal, not years later.5
By requiring an "immediate" motion and an "immediate"
hearing before the judge who presided over the OUI proceedings,
the plain language also indicates that the Legislature intended
5 Those circumstances would include his prior driving
record, and other evidence of alcohol abuse.
11
for the determination whether restoration "would likely endanger
the public safety" to be made on the basis of the facts as they
exist at the time of the defendant's acquittal, and in the
context of the evidence that was then presented. See Water
Dep't of Fairhaven v. Department of Envtl. Protection, 455 Mass.
740, 744 (2010) (language of statute is primary source of
insight into legislative intent).
Nevertheless, the defendant contends that the provision
should be read broadly to permit the defendant to make such a
motion immediately, but not require it. The defendant also
asserts that additional information, including the defendant's
circumstances years after the acquittal, may be appropriately
considered. Indeed, the 2017 motion judge's ruling was based
entirely on new information, particularly the defendant's
continued sobriety in the intervening years, lack of subsequent
offenses, and gainful employment. This is the very type of
information that would be considered by the registrar of motor
vehicles (registrar) when deciding whether to issue a hardship
license under § 24 (1) (c) for defendants who had taken the
breathalyzer test.
Such an expansive reading of § 24 (1) (f) (1) ignores other
relevant provisions of the statute and the over-all statutory
scheme. "[I]f reasonably possible, all parts [of a statute
must] be construed as consistent with each other" (citation
12
omitted). Custody of Victoria, 473 Mass. 64, 73 (2015). When
the language is read in context, it is clear that the
Legislature intended the motion for restoration to be a very
limited, time-defined exception to the general rules of
suspension for refusal. The preceding phrase in the statute
provides that, for defendants whose license has been suspended
for refusing the breathalyzer, "[n]o license or right to operate
shall be restored under any circumstances" (emphasis added).
G. L. c. 90, § 24 (1) (f) (1). Section 24 (1) (f) (1) also
explicitly provides that "no restricted or hardship permits
shall be issued during the suspension period imposed by [this
section]" (emphasis added). These categorical prohibitions
apply to all defendants who refused to take a breathalyzer, not
just those with multiple OUI convictions.
This type of categorical prohibition also stands in express
and stark contrast to the more open-ended hardship exception
available under § 24 (1) (c) to defendants who agreed to take
the breathalyzer and were convicted. Such defendants may apply
for a hardship exception unless they have four prior OUI
convictions. See G. L. c. 90, § 24 (1) (c) (3 ¾). For example,
defendants with three prior OUI convictions who consent to the
breathalyzer and are convicted may apply for a hardship
exception under the following conditions:
13
"such person may, after the expiration of five years from
the date of the conviction, apply for and shall be granted
a hearing before the registrar for the purpose of
requesting the issuance of a new license for employment or
education purposes which license shall be effective for an
identical twelve hour period every day on the grounds of
hardship and a showing by the person that the causes of the
present and past violations have been dealt with or brought
under control and the registrar may, in his discretion,
issue such license under such terms and conditions as he
deems appropriate and necessary."
G. L. c. 90, § 24 (1) (c) (3 ½). Had the defendant in this case
consented to the breathalyzer and been convicted, he would have
been able to apply to the registrar for a hardship exception on
the basis of new information about his sobriety and employment.
The statute, however, consistently treats those who refuse to
take the breathalyzer differently. They are not entitled to
hardship exceptions, and there is nothing in § 24 (1) (f) (1) to
the contrary.6
6 There is one exception to the categorical prohibition
against hardship licenses for those who refuse to take a
breathalyzer. See 1 Massachusetts Motor Vehicle Offenses § 1.3
(Mass. Cont. Legal Educ. 2d ed. 2009 & Supp. 2016).
"Notwithstanding the provisions of . . . [G. L. c. 90,
§ 24 (1) (f) (1)], [if a court has assigned a defendant to an
alcohol education, treatment, or rehabilitation program,] a
defendant may immediately upon entering [such] program . . .
apply to the registrar for consideration of a limited license
for hardship purposes." G. L. c. 90, § 24D. This avenue for
relief, however, is also very limited and was not available to
the defendant in this case. Eligibility is limited to
defendants who have either (1) never before been convicted of
OUI or been assigned to a program; or (2) once before been
convicted of OUI or assigned to a program, ten or more years
before the present offense. See id.
14
The relevant inquiry is therefore whether, at the time of
the immediate hearing, restoration of the defendant's license
"would likely endanger the public safety," not whether "the
causes of the present and past violations have been dealt with
or brought under control" at a later date, as in the case of a
hardship application. The statutory language, read as a whole,
clearly and consistently demonstrates that the Legislature
intended the motion for restoration to be a narrow exception to
the general rules of suspension for refusal, not the broader,
more open-ended remedy available for defendants who have taken
the breathalyzer test. See Souza v. Registrar of Motor
Vehicles, 462 Mass. 227, 232 (2012) (use of language in one
subsection of § 24 but not another is significant).
This understanding of the statutory language is also
consistent with the legislative history. The current refusal
suspension scheme was inserted in 2005, when the Legislature
enacted Melanie's Law, which "increas[ed] the periods of license
suspension for refusal to submit to a breathalyzer test." Id.
at 231. See St. 2005, c. 122, § 9. Prior to the passage of
Melanie's Law, refusing to take a breathalyzer could result in,
at most, an eighteen-month license suspension. See 2005 House
15
Doc. No. 4099.7 The Governor, who filed the original
legislation, noted that "[t]oo often experienced drunk drivers
refuse to cooperate with arresting officers, because they know
that their refusal will significantly increase their changes of
acquittal." 2005 House Doc. No. 4453. The changes to the
refusal suspension scheme were thus designed to "create an
increased incentive to submit to [breathalyzer or field
sobriety] tests." See 2005 House Doc. No. 4099.
Providing defendants with a very narrow avenue for relief
on acquittal comports with these public safety concerns. Unlike
suspensions pursuant to § 24 (1) (c), which target dangerous
drivers by number of OUI convictions and permit the registrar to
issue hardship licenses "when the causes of the present and past
violations have been dealt with or brought under control,"
suspensions pursuant to § 24 (1) (f) (1) target drivers who have
not fully cooperated with authorities and otherwise stand to
benefit from refusing to comply with the breathalyzer. See
Mackey, 443 U.S. at 19 ("A state plainly has the right to offer
incentives for taking a test that provides the most reliable
form of evidence of intoxication for use in subsequent
7 Specifically, under the pre-2005 scheme, refusal resulted
in a 180-day suspension for drivers with no prior OUI
convictions, a twelve-month suspension for drivers with one
prior OUI conviction, and an eighteen-month suspension for
drivers with two prior OUI convictions. See 2005 House Doc. No.
4099.
16
proceedings"). The avenue for relief under § 24 (1) (f) (1) is
therefore much narrower and shorter.
If a defendant could continue to make new motions for
restoration indefinitely, based on considerations that justify
the hardship exception for those who agreed to take the
breathalyzer, it would undercut the Legislature's decision to
impose harsh suspension consequences that discourage refusal.
Had the Legislature intended to allow an exception for hardship,
as it does under § 24 (1) (c), it would have so provided.8
Instead, the Legislature chose to impose harsher consequences
for refusal than for conviction in order to increase
breathalyzer compliance and "[decrease] the number of drunk
drivers who escape the consequences of their actions." Cf. 2005
House Doc. No. 4453.
3. Conclusion. For the reasons discussed, the decision
granting the defendant's motion for restoration of his driver's
license is reversed.
So ordered.
8 We also note that, even under § 24 (1) (c), defendants
subject to a lifetime suspension are not eligible to apply for a
hardship license.