Commonwealth v. Morgan

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SJC-12114

COMMONWEALTH vs. JOEL D. MORGAN.

Middlesex. December 6, 2016. - April 18, 2017.

Present (Sitting at Lawrence): Gants, C.J., Botsford, Lenk,
Hines, Gaziano, Lowy, & Budd, JJ.1

Veteran. Motor Vehicle, Operating under the influence.
Controlled Substances. Practice, Criminal, Continuance
without a finding, Dismissal.

Complaint received and sworn to in the Lowell Division of
the District Court Department on October 3, 2014.

A motion for pretrial diversion was heard by Barbara S.
Pearson, J., and questions of law were reported by her to the
Appeals Court.

The Supreme Judicial Court granted an application for
direct appellate review.

Melissa Weisgold Johnsen, Assistant District Attorney, for
the Commonwealth.
Elizabeth Hugetz, Committee for Public Counsel Services
(Benjamin H. Keehn, Committee for Public Counsel Services, also
present) for the defendant.

1
Justice Botsford participated in the deliberation on this
case prior to her retirement.
 2

John C. Mooney, for John C. Mooney & another, amici curiae,
submitted a brief.

LENK, J. This case comes to us on two reported questions

and calls upon us to construe for the first time the so-called

VALOR Act, St. 2012, c. 108, entitled "An Act relative to

veterans' access, livelihood, opportunity and resources." The

VALOR Act was enacted in 2012 in the aftermath of protracted

American military engagements in Afghanistan and Iraq. In

recognition of the toll thereby taken on many who served in the

military, the VALOR Act, among other things, amended the statute

providing young adults with pretrial diversion, G. L. c. 276A

(pretrial diversion statute), to include qualifying veterans and

active duty members of our armed forces facing criminal charges

in the District and Boston Municipal Courts.

We address first whether, under the pretrial diversion

statute, as amended by the VALOR Act, a judge is authorized to

dismiss or to continue such charges without a finding upon a

defendant's successful completion of an approved pretrial

diversion program. We conclude that the judge is so authorized,

rejecting the Commonwealth's view that the VALOR Act amendments

permit only a continuance of court proceedings, on the flawed

view that, while military defendants could seek treatment

through court-approved programs, they would face resumed

prosecution of the charged offenses even after the successful
 3

completion of such a program.

We go on to address the reported questions and consider

whether the pretrial diversion statute, as amended by the VALOR

Act, permits a judge to continue without a finding (CWOF) or to

dismiss a charge of operating a motor vehicle while under the

influence of alcohol or drugs (OUI), second or subsequent

offense, notwithstanding the provisions of G. L. c. 90, § 24,

which generally proscribe such dispositions. Our analysis of

this question ultimately turns on the legislative intent of the

VALOR Act and its multifaceted approach to assisting members of

the military in their often-difficult return to civilian life,

during which many succumb to substance abuse. We conclude that,

notwithstanding otherwise applicable constraints on alternative

dispositions that the preexisting OUI statute imposes, the

pretrial diversion statute, as amended in 2012 by the VALOR Act,

vests judges with discretion to order either of the two

alternative dispositions at issue in appropriate cases that

involve charges of OUI, second or subsequent offense. We

accordingly answer both reported questions2 in the affirmative.3

2
See part 1, infra, for the full text of the reported
questions.
3
We acknowledge the amicus brief submitted by John C.
Mooney and Disabled American Veterans Department of
Massachusetts, Inc., in support of the defendant, Joel D.
Morgan.
 4

1. Background. We set forth the relevant facts, which are

largely undisputed.4 The defendant, Joel D. Morgan, is a veteran

of the United States Army, in which he served from 2002 to 2011.

During his last four years of service, he completed three

consecutive tours of duty, two in Iraq and one in Afghanistan.

As early as the first of these deployments, he began to

experience symptoms of posttraumatic stress disorder (PTSD), and

by the time he returned from his final tour of duty in

Afghanistan in 2011, his untreated symptoms had significantly

worsened. He also had numerous physical disabilities as the

result of injuries received during his tours of duty.5

Immediately upon returning from Afghanistan, Morgan sought

mental health treatment through the United States Department of

Veterans Affairs (VA), but the VA was unable to schedule an

intake appointment for four months. While awaiting evaluation

and treatment, Morgan began to self-medicate by abusing alcohol

and opioids. In January, 2012, he was evaluated and was

diagnosed with PTSD. In the fall of 2012, the VA also

determined that Morgan was one hundred per cent disabled. On

Veteran's Day, in November, 2012, Morgan's identical twin

4
Because no evidence was taken, the facts consist largely
of the statements in the police incident report and the
undisputed submissions of the parties.
5
Morgan's son was born during his final deployment. Morgan
and his wife are divorced.
 5

brother, himself a veteran of the wars in Iraq and Afghanistan,

who suffered from PTSD and a traumatic brain injury, committed

suicide. The impact of his twin's suicide on Morgan's efforts

to return to ordinary civilian life was considerable.

In April, 2013, Morgan entered a short-term detoxification

program at a VA hospital in Bedford. Immediately after release

from that program, he entered an intensive outpatient program,

but completed only one month. In July, 2013, Morgan visited his

mother, who had moved to California, and he successfully

completed a two-month residential treatment program there. He

thereafter relapsed.

On September 29, 2014, Morgan was driving erratically on

Interstate 495 in Tewksbury when his vehicle swerved into

another lane and hit the side of a tow truck. Morgan did not

stop to exchange insurance information at the scene. The tow

truck driver telephoned police and reported the incident; he

also said that he had observed a Toyota (later identified as

Morgan's) driving very erratically for ten miles before the

accident. Morgan continued driving until he was stopped by a

State police trooper in Boxborough, who had been alerted by the

truck driver's report, and who observed Morgan still driving

erratically.

When stopped, Morgan appeared to be under an intoxicating

influence; he was disheveled and sweating, with glassy eyes and
 6

slurred speech. Dried blood and needle marks were visible on

his left arm. The trooper who conducted the stop called for

backup, and ultimately was joined by four other troopers.

Morgan informed one of the troopers that he had heroin and a

hypodermic needle in his possession, and those items were taken

into police custody. Morgan was arrested and driven to the

State police barracks for booking. He waived his Miranda rights

and agreed to be evaluated by a drug recognition specialist, who

concluded that Morgan was exhibiting signs of opioid use.

Police found drug paraphernalia in the vehicle near the driver's

seat, including plastic bags, a bottle cap, and two hypodermic

needles.

The following week, Morgan was arraigned in the District

Court on charges of OUI, second offense; possession of heroin;

negligent operation of a motor vehicle; and leaving the scene of

property damage. When his attorney later learned that Morgan

was a veteran, she sought pretrial diversion under the VALOR

Act. He was evaluated by the VA, which determined that he would

benefit from such a program.

At different VA medical centers, Morgan underwent

detoxification, received specialized PTSD counselling for the

first time, and also began supportive counselling for substance
 7

abuse, in conjunction with monthly Naltrexone6 injections. He

passed a union examination, joined a local carpenters union, and

has maintained employment as a carpenter.7

Three months after arraignment, in January, 2015, Morgan

filed a motion, pursuant to the pretrial diversion statute,

seeking dismissal of all charges should the pretrial diversion

program prove successful. In the alternative, he sought to

admit to sufficient facts and have the case continued without a

finding. The prosecutor opposed both dispositions, contending

that, given the terms of the OUI statute, G. L. c. 90, §§ 24

and 24D, the judge could not continue a second offense8 without a

6
Naltrexone helps treat opioid addiction by blocking opioid
receptors in the body, but carries no risk of abuse or illicit
resale. See Substance Abuse and Mental Health Services
Administration, https://www.samhsa.gov/medication-assisted-
treatment/treatment/naltrexone [https://perma.cc/LVS4-ZT3F].
7
In support of his motion to report questions of law,
Morgan executed an affidavit in July, 2015, stating that he had
not consumed alcohol or drugs since his arrest. Morgan's
counsellors also submitted affidavits and letters in support of
the motion, stating that he has maintained sobriety and
employment, has made significant progress in treatment, was
providing for his son, and was taking steps to restore family
relationships. Morgan's attorney also submitted a letter from
her investigator stating that the tow truck driver, himself a
veteran, had told the investigator that he did not want Morgan
to "end up with a criminal conviction over this," so long as
Morgan receives the help he so "desperately needs."
8
In December, 2004, approximately nine years and ten months
prior to the incident at issue here, Morgan admitted to
sufficient facts to warrant a finding that he had operated a
motor vehicle while under the influence of alcohol or drugs
 8

finding. He also maintained that, in any event, the pretrial

diversion statute did not permit a judge to dismiss a case

involving a veteran or active duty member of the military and

that, absent statutory authorization, such dismissal, over the

Commonwealth's objection, infringed on the separation of powers.9

See art. 30 of the Massachusetts Declaration of Rights;

Commonwealth v. Cole, 468 Mass. 294, 301 & n.10 (2014).

Acknowledging that the case presented an unsettled question

of law, the judge reported the following two questions to the

Appeals Court, pursuant to Mass. R. Crim. P. 34, as amended, 442

Mass. 1501 (2004):

(OUI). The case was continued without a finding and dismissed
upon his successful completion of probation. Although Morgan
did not have a prior criminal conviction at the time of the 2014
incident, because ten years had not elapsed since December,
2004, he was not eligible for another continuance without a
finding under the terms of the OUI statute. Where a defendant
previously was "assigned to an alcohol or controlled substance
education, treatment or rehabilitation program [by a court]
because of" operating while under the influence, a subsequent
OUI charge "shall not be placed on file or continued without a
finding," unless the defendant was convicted or assigned to a
treatment program at least ten years previously; this exception
shall apply only "once in his [or her] lifetime." See G. L.
c. 90, §§ 24 & 24D, second par. Otherwise put, had at least ten
years elapsed between the resolution of the 2004 matter and the
2014 incident, Morgan would have been eligible for a continuance
without a finding upon successful completion of a court-approved
program under the terms of the OUI statute itself, quite apart
from the pretrial diversion statute, as amended by the VALOR
Act. The question before us arises because of his ineligibility
under the OUI statute.
9
The prosecutor did not oppose an admission to sufficient
facts and a continuance without a finding on the other charges.
 9

1. "Under the VALOR Act, may a judge exercise
discretion to enter a CWOF after an admission to an OUI-
second offense?"

2. "If a CWOF is not available, may a court dismiss
the charge upon successful completion of diversion, over
the Commonwealth's objection?"

We allowed Morgan's application for direct appellate review.

2. Statutory background. Two statutes are relevant to our

consideration of the reported questions. We set forth each in

pertinent detail.

a. Pretrial diversion statute, G. L. c. 276A. In 1974,

the Legislature inserted c. 276A into the General Laws by

enacting St. 1974, c. 781, "An Act establishing a district court

procedure to divert selected offenders from the district courts

to programs of community supervision and service." As initially

enacted, the statute provided for pretrial diversion to a

program, followed by dismissal or a continuance without a

finding, for young adults who were at least eighteen, but not

yet twenty-two years old.

"The district courts, and in Boston, the municipal
court of the city of Boston, shall have jurisdiction to
divert to a program . . . any person who is charged with an
offense or offenses against the [C]ommonwealth for which a
term of imprisonment may be imposed and over which the
[D]istrict [C]ourts may exercise final jurisdiction and who
has reached the age of [eighteen] years but has not reached
the age of twenty-two, who has not previously been
convicted of a violation of any law of the [C]ommonwealth
or of any other [S]tate or of the United States in any
criminal court proceeding after having reached the age of
[eighteen] years, . . . who does not have any outstanding
warrants, continuances, appeals or criminal cases pending
 10

before any courts of the [C]ommonwealth or any other
[S]tate or of the United States, and who has received a
recommendation from a program that he would, in light of
the capacities of and guidelines governing it, benefit from
participation in said program."

G. L. c. 276A, § 2.

In 2012, the pretrial diversion statute, among others, was

amended by the VALOR Act, St. 2012, c. 108, to assist veterans

and active duty service members of the United States armed

forces in numerous ways as they resumed their civilian lives.10

The VALOR Act added G. L. c. 276A, §§ 10 and 11.

Section 10 defines eligible military defendants in language

that almost precisely mirrors that used in G. L. c. 276A, § 2,

to define young adults eligible for the protections of G. L.

c. 276A, except that it applies to veterans:

"The district courts, and in Boston, the municipal
court of the city of Boston, shall have jurisdiction to
divert to a program any person who is a veteran, . . . on
active service in the armed forces of the United
States, . . . or who has history of military service in the
armed forces of the United States who is charged with an
offense against the [C]ommonwealth for which a term of
imprisonment may be imposed, regardless of age, who has not
previously been convicted of a violation of any law of the

10
In addition to the provisions at issue here, the VALOR
Act, inter alia, amended G. L. c. 7, § 61, to provide benefits
for veteran-owned businesses; added G. L. c. 15A, § 42, to
provide help for veterans seeking higher education; inserted
G. L. c. 15E to streamline transfers between school districts
for children of service members; amended G. L. c. 59 to provide
property tax benefits for veterans; amended G. L. c. 146 to help
veterans and members of the military maintain professional
licenses; and amended G. L. c. 10, § 35CC, to expand access to
food, housing, utilities, and medical benefits.
 11

[C]ommonwealth or of any other [S]tate or of the United
States . . . after having reached the age of [eighteen]
years . . . who does not have any outstanding warrants,
continuances, appeals or criminal cases pending before any
courts of the [C]ommonwealth or any other [S]tate or of the
United States and who has received a recommendation from a
program that such person would, in light of the capacities
of and guidelines governing it, benefit from participation
in said program."

G. L. c. 276A, § 10.

The pretrial diversion statute, as originally enacted in

1974, explicitly excludes otherwise eligible defendants charged

with certain offenses from pretrial diversion, G. L. c. 276A,

§ 4, and sets forth a detailed process to be followed in

screening eligible defendants for admission to a program, G. L.

c. 276A, § 3. It allows a judge to "afford[] a fourteen-day

continuance for assessment by the personnel of a program to

determine if [the defendant] would benefit from such program."

Id. In 2012, the VALOR Act added G. L. c. 276A, § 11, creating

a similar procedure for qualifying veterans: a judge may

"afford[] a [fourteen]-day continuance . . . to seek an

assessment by the United States Department of Veterans Affairs,

the [D]epartment of [V]eterans' [S]ervices or another [S]tate or

[F]ederal agency with suitable knowledge and experience of

veterans affairs to provide the court with treatment

options . . . including diversion programs."

If, after receiving the requisite information in the

assessment, and any response by the Commonwealth, the judge
 12

determines that the defendant should enter the program, and the

defendant "agrees to abide by the terms and conditions in the

plan of services," "[t]he criminal proceedings of [a] defendant

who qualifies for diversions under [G. L. c. 276A, § 2,] . . .

shall be stayed for a period of ninety days, unless the judge in

his [or her] discretion considers that the interest of justice

would be served by a hearing of the facts, after which the case

may be continued without a finding for ninety days." G. L.

c. 276A, § 5.

At the end of the ninety-day stay or the continuance

without a finding, the judge may dismiss the underlying charge

"[i]f the report indicates the successful completion of the

program by a defendant." G. L. c. 276A, § 7. If, at the end of

that time, the defendant has not completed the program

successfully, or if the program recommends that the stay be

extended, the judge may, in his or her discretion, extend the

stay, dismiss the charges, return the case to the trial list, or

"take such action as he [or she] deems appropriate." Id.

b. OUI statute, G. L. c. 90, §§ 24, 24D. Against the

backdrop of otherwise available alternative dispositions,11 the

OUI statute has long limited to only specific classes of OUI

11
See, e.g., G. L. c. 278, § 18 (allowing continuance
without finding "unless otherwise prohibited by law"); Mass. R.
Crim. P. 28 (e), 453 Mass. 1501 (2009) (allowing court to file
case without imposing sentence after guilty finding or verdict).
 13

offenders the availability of certain alternative dispositions.

The statute has been amended numerous times in its eighty-five

year history; at the time of Morgan's arrest, the OUI statute

provided, as it does today, that "[i]f the defendant has been

previously convicted or assigned to an alcohol or controlled

substance education, treatment, or rehabilitation

program[,] . . . [a] prosecution . . . shall not be placed on

file or continued without a finding except for dispositions
12
under [§ 24D]." G. L. c. 90, § 24. Adopted in 1974, G. L.

c. 90, § 24D, in turn, allows a judge to dismiss a case or to

enter a continuance without a finding after successful

completion of a program, for certain defendants. Such

dismissals and continuances are limited to first offenses13 and,

once in a lifetime, to those with "a single like offense . . .

[ten] years or more before the date of the commission of the

12
General Laws c. 90, § 24, has been amended since Morgan's
arrest; those amendments are not relevant to the portions of the
statute at issue here.
13
See St. 2002, c. 302; St. 1994, c. 25; St. 1975, c. 505;
St. 1974, c. 647. While the parties appear to argue whether
"Melanie's Law," enacted in 2005, see St. 2005, c. 122,
precluded an alternate disposition on a charge of OUI, second
offense, such a disposition had been precluded several years
earlier, by the amendments to the OUI statute in St. 2002,
c. 302. The 2005 revisions included enhanced penalties for a
number of OUI offenses, and added provisions requiring ignition
interlocks for those individuals who have been convicted of OUI,
second or subsequent offense, if they are issued a hardship
license or upon return of their driver's licenses.
 14

[present] offense."14

3. Discussion. a. Statutory authority under G. L.

c. 276A. Until the VALOR Act amended the statute in 2012, the

special protections of the pretrial diversion statute that

authorized judges to enter continuances without a finding or to

dismiss charges against defendants who successfully completed a

treatment program had been limited to young adults who were too

old to fall under the jurisdiction of the Juvenile Court, but

had not yet reached their twenty-second birthdays.15 As noted,

the VALOR Act, in 2012, amended the preexisting pretrial

diversion statute by adding §§ 10 and 11, thereby extending to

veterans and service members the opportunity for pretrial

diversion.

The initial question we confront is whether G. L. c. 276A,

as amended by the VALOR Act, permits a judge to dismiss or to

continue without a finding criminal charges brought against a

14
Morgan's prior case was resolved in December, 2004,
approximately nine years and ten months before the incident at
issue here.
15
As initially enacted, the pretrial diversion statute
applied to young adults from the age of seventeen until they
reached their twenty-second birthday. See St. 1974, c. 781. In
2013, G. L. c. 276A, as amended by the VALOR Act, was further
amended to limit its application to defendants who are at least
eighteen years old, but who have not yet reached their twenty-
second birthday, see St. 2013, c. 84, § 32, in conjunction with
the extension of the Juvenile Court's jurisdiction to
individuals who are seventeen years old.
 15

qualifying military defendant upon his or her successful

completion of an approved pretrial diversion program. The

Commonwealth is of the view that §§ 10 and 11 on their face in

essence permit no more than a continuance of court proceedings

to enable military defendants to seek treatment through approved

programs; they do not themselves authorize alternative

dispositions even upon the successful completion of such

programs. On this view, the successfully treated military

defendant would then face resumed prosecution of the charged

offenses. We do not share this view. In concluding that the

statute confers upon judges the authority to order alternative

dispositions and thereby divert successfully treated military

defendants from further criminal prosecution, we reject the

Commonwealth's contention that §§ 10 and 11, added by the VALOR

Act, are to be read in isolation from the remainder of the

pretrial diversion statute. This conclusion follows from the

application of our usual rules of statutory construction and the

plain language of the statute itself, and is confirmed by our

review of the history and purpose of the VALOR Act.

In construing a statute, we strive to discern and

effectuate the intent of the Legislature. The plain language of

the statute, read as a whole, provides the primary insight into

that intent. See Commonwealth v. Peterson, 476 Mass. 163, 167

(2017). We do not confine our interpretation to the words of a
 16

single section. See Commonwealth v. Keefner, 461 Mass. 507, 511

(2012); 2A N.J. Singer & S. Singer, Statutes and Statutory

Construction § 46:5 (7th ed. rev. 2014). To the extent that the

meaning of a statute remains unclear, we seek to "ascertain the

intent of a statute from all its parts and from the subject

matter to which it relates, and must interpret the statute so as

to render the legislation effective, consonant with sound reason

and common sense." Seideman v. Newton, 452 Mass. 472, 477

(2008). We consider "the cause of [the statute's] enactment,

the mischief or imperfection to be remedied and the main object

to be accomplished." Wing v. Commissioner of Probation,

473 Mass. 368, 373 (2015), quoting Hanlon v. Rollins, 286 Mass.

444, 447 (1934).

We begin with the language of G. L. c. 276A, §§ 10 and 11,

viewing it in the context of the pretrial diversion statute as a

whole. Doing so leaves no doubt that the Legislature intended

to give veterans and active duty members of the military the

same benefits of pretrial diversion programs and the alternative

dispositions already afforded under the statute to young adults.

"When the Legislature uses the same term in . . . different

statutory sections, the term should be given a consistent

meaning throughout." Commonwealth v. Hilaire, 437 Mass. 809,

816 (2002). Here, not only did the Legislature use the same

term –- "divert" -- in G. L. c. 276A, § 10, as in G. L. c. 276A,
 17

§ 2, it also used nearly identical language throughout both of

the two sections. Compare G. L. c. 276A, § 2 (defining

eligibility for diversion of young adults), with G. L. c. 276A,

§ 10 (defining eligibility for diversion for veterans and active

duty service members). Virtually the only difference between

these sections is that, while G. L. c. 276A, § 2, applies to

those who have "reached the age of [eighteen] years but [have]

not reached the age of twenty-two," G. L. c. 276A, § 10, applies

to "veteran[s], . . . [those] on active service . . . , [and

those] who [have] history of military service . . . regardless

of age." Accordingly, we conclude that in using the word

"divert" in G. L. c. 276A, § 10, the Legislature intended it to

have the same meaning as in the virtually identical language of

G. L. c. 276A, § 2, to divert in contemplation of a continuance

without a finding or dismissal.

The Commonwealth nevertheless argues that the provisions of

G. L. c. 276A, §§ 5 and 7 (allowing pretrial diversion programs

and alternative dispositions), do not apply to veterans and

active duty members of the military who have been deemed

eligible for diversion under G. L. c. 276A, § 10. The

Commonwealth relies in this regard on the absence of language in

§§ 5 and 7 (generally addressing continuances of cases for

qualifying young defendants as defined in G. L. c. 276A, § 2),

that cross-references §§ 10 and 11 concerning military
 18

defendants. At the same time, it ignores the fact that G. L.

c. 276A, § 7 (permitting a judge, "[u]pon the expiration of the

initial ninety-day stay of proceedings or . . . continuance

without a finding" to dismiss the charges, extend the stay for

further treatment, continue the case without a finding, or

resume criminal proceedings), itself references no other section

of the statute. Such parsing of the statute is, in any event,

unavailing. The proffered construction is inconsistent with the

fundamental canons of statutory interpretation, requiring that

we read statutes concerning the same subject matter as a

harmonious whole wherever possible, see Commonwealth v. Ventura,

465 Mass. 202, 208-209 (2013); Keefner, 461 Mass. at 511, and

that we read them in a commonsense way to effectuate legislative

intent and avoid absurd results. See, e.g., Worcester v.

College Hill Props., Inc., 465 Mass. 134, 138-139 (2013), and

cases cited.

To read the statute in the fragmented fashion that the

Commonwealth suggests would mean that the VALOR Act amendments

do nothing more than allow military defendants some time away

from court proceedings for treatment, after which they would

face resumed prosecution. We note that, prior to enactment of

the VALOR Act, a District Court judge already had authority to

continue a case for a period of time in order to permit a mental

health evaluation of a defendant, and to consider that
 19

evaluation in imposing a sentence. Had the VALOR Act amendment

simply allowed for a brief continuance for assessment, while the

case remained on the trial track, it would have done little to

change existing practice.16 The Legislature plainly had more in

mind than this, and "[i]f a sensible construction is available,

we shall not construe a statute to make a nullity of pertinent

provisions or to produce absurd results." Commonwealth v.

Figueroa, 464 Mass. 365, 368 (2013), quoting Flemings v.

Contributory Retirement Appeal Bd., 431 Mass. 374, 375–376

(2000).

Providing pretrial diversion for veterans and active duty

members of the military, on the same terms as young adults, is

consistent with the Legislature's purpose both in enacting the

pretrial diversion statute in 1974 and in amending it through

the VALOR Act in 2012. The pretrial diversion statute

originally was intended to provide rehabilitation to those whose

criminal habits had not become "fixed." See Rosenbloom, Bill

Backs 'Diversion' for Youths in Trouble, Boston Globe, Feb. 12,

16
The Commonwealth suggests that the VALOR Act served to
alter previous practice by requiring the department of
probation, rather than defense counsel, to identify eligible
military defendants. This minimal benefit is difficult to
reconcile with the Legislature's stated goal of providing for
"appropriate resolution[s]" in cases involving such defendants.
See House Floor Hearing, May 12, 2012 available at
http://www.statehousenews.com/content/gallery/audio/2012/House/
05-16audio-hou.mp3.
 20

1973, quoting bill supporter. See also Zablotsky, An Analysis

of State Pretrial Diversion Statutes, 15 Colum. J.L. & Soc.

Probs. 1, 8 (1979). Its supporters observed that a criminal

record, coupled with a short period of incarceration, could lead

to a "cycle of crime and prison . . . , ever more vicious."

Help Needed Now for Youthful Offenders, Boston Globe, July 23,

1974, at 22. Avoiding this cycle would benefit both these young

adults and society as whole.

In 2012, the Legislature added veterans and active duty

members of the military to the pretrial diversion statute in

service of the same goal: addressing the special needs of a

group of offenders for whom the Legislature believed conviction

and punishment were not necessarily appropriate. As with young

adults, the Legislature recognized that, for veterans and active

duty members of the military, the conventional path, leading to

a permanent criminal record, fails to "address [their] needs" or

to provide "the appropriate resolution," and that, if enabled to

address the unique challenges they face, veterans could be

strong candidates for rehabilitation. House Floor Hearing at

26:55, May 16, 2012, available at http://www.statehousenews.com/

content/gallery/audio/2012/House/05-16audio-hou.mp3 (Statement

of Rep. James E. Vallee). Cf. Porter v. McCollum, 558 U.S. 30,

43 (2009) (noting nation's "long tradition of according leniency

to veterans in recognition of their service").
 21

The special consideration afforded to veterans in the

District Courts was part of the VALOR Act's comprehensive effort

to "[e]nsur[e] access to health care, education, employment and

financial security" for veterans, particularly the 37,000

Massachusetts veterans who served in Iraq and Afghanistan. See

Press Release, Governor Patrick Signs VALOR Act to Increase

Opportunities for Veterans (May 31, 2012). Imposing an

alternative disposition to avoid a criminal conviction furthers

these goals. See Commonwealth v. Pon, 469 Mass. 296, 316-317

(2014) (effects of conviction may include severe collateral

consequences including "unemployment, underemployment, or

homelessness").

b. Constitutional authority. The Commonwealth maintains

that, to the extent the pretrial diversion statute, as amended

by the VALOR Act, authorizes judges to order alternative

dispositions, it violates the separation of powers. See art. 30

of the Massachusetts Declaration of Rights ("the judicial

[branch] shall never exercise the . . . executive powers"). The

Commonwealth is mistaken.

A decision whether to prosecute a criminal case rests

exclusively with the executive branch. In the absence of a

legal basis to do so, it is well established that a judge may

not dismiss a valid complaint over the Commonwealth's objection.

See Commonwealth v. Cheney, 440 Mass. 568, 574 (2003). Where
 22

the Legislature has granted the authority to dismiss a case or

to continue it without a finding, however, a judge may exercise

that authority without offending art. 30. See Commonwealth v.

Guzman, 446 Mass. 344, 349 (2006) (dismissal); Commonwealth v.

Pyles, 423 Mass. 717, 719 (1996) (continuance without a

finding). This is so because of the Legislature's "broad

authority to classify criminal conduct, to establish criminal

penalties, and to adopt rules of criminal . . . procedure."

Pyles, supra at 722. As the pretrial diversion statute provides

specific authority to a District Court judge to dismiss a case

or to continue it without a finding, a judge exercising that

authority is not in violation of the separation of powers.

c. Reported questions. Having concluded that a judge has

authority under the pretrial diversion statute to enter a

dismissal or a continuance without a finding as to qualifying

defendants in appropriate circumstances, we turn to the reported

questions.

The provisions of the pretrial diversion statute that

authorize judges to allow the alternative dispositions discussed

appear to conflict with the OUI statute, insofar as the latter

prohibits a charge of OUI, second or subsequent offense, from

being "placed on file or continued without a finding." G. L.

c. 90, § 24. The Commonwealth urges that we resolve this

apparent conflict by applying the maxim that a more specific
 23

statute controls over one that is more general. See

Commonwealth v. Harris, 443 Mass. 714, 723-724 (2005); Boston

Housing Auth. v. Labor Relations Comm'n, 398 Mass. 715, 718

(1986). It urges that the result will then be that a judge may

not continue without a finding or dismiss such charges because

the OUI statute controls over the pretrial diversion statute.

Neither statute, however, fairly may be said to be more

specific than the other, because each covers ground that the

other does not. See Harris, 443 Mass. at 724-725; Commonwealth

v. John G. Grant & Sons, 403 Mass. 151, 156 (1988) ("neither

penalty provision is more specific than the other and thus

controlling"). The OUI statute is more specific in the sense

that it applies only to one type of offense; the pretrial

diversion statute is more specific in that its application is

limited to two narrow subsets of defendants. Neither statute

fully encompasses the other, but, instead, the two statutes

overlap in part, akin to a Venn diagram. In the circumstances

here, denominating one statute as more specific than the other

would rest on no more than an arbitrary choice.

Similarly, another statutory maxim, to the effect that the

later statute controls over the earlier, see Commonwealth v.

Russ R., 433 Mass. 515, 521 (2001), does not resolve the matter.

The history of amendments to both statutes precludes a simple

answer to the question which statute predates the other. The
 24

limitations governing alternative dispositions for those charged

with OUI, second offense, have been amended many times over the

past eighty-five years,17 while the pretrial diversion statute

was amended nearly thirty years after its enactment to include

military defendants.

These tools being of limited utility at best, we look

beyond them in an effort to harmonize the two statutes by

discerning the underlying policies each serves. See Wing,

473 Mass. at 373; Harris, 443 Mass. at 726 (we look to "serve[]

the policies underlying both" statutes "to the greatest extent

possible"). The OUI statute serves the evident goal of

protecting the public from the grave dangers presented by those

drivers who repeatedly drive while impaired by alcohol or drugs.

17
When the first version of the OUI statute was enacted in
1932, it provided that "[t]he prosecution of any person . . . ,
if the offen[s]e is committed within a period of six years
immediately following his final conviction of a like
offen[s]e . . . , shall not in any event be placed on file or
otherwise disposed of except by trial, judgment and sentence
according to the regular course." See St. 1932, c. 26, § 1.

Soon thereafter, the Legislature eliminated this
categorical rule, but, in language still in effect today,
provided that a defendant charged with any OUI offense could not
receive an alternative disposition "unless the interests of
justice require." St. 1936, c. 434, § 1. In 1982, the
Legislature limited the availability of continuances without a
finding on a charge of OUI, even where required by the interests
of justice, to the detailed and specific requirements set forth
in G. L. c. 90, § 24D. See St. 1982 c. 373, § 2. In 1994, and
again in 2002, the Legislature again limited those defendants
eligible for pretrial diversion under G. L. c. 90, § 24D. See
St. 1994, c. 25; St. 2002, c. 302.
 25

The pretrial diversion statute, for reasons already discussed,

gives special consideration to two groups of people who are

susceptible to substance abuse but may be amenable to successful

rehabilitation. The two statutes do not serve the same goals

except to the extent that successful rehabilitation of drivers

with substance abuse problems will redound to public safety.

Mindful that the VALOR Act was enacted against the backdrop of

two preexisting statutes with which the Legislature had

familiarity, we reconcile both, however imperfectly, by

concluding that the Legislature did not intend to preclude the

alternative dispositions permitted under the pretrial diversion

statute in situations such as this. See Harris, supra.

We note that, in amending c. 276A in 2012, the Legislature

expressed special concern for veterans and active military

service members struggling with substance abuse. Specifically,

in the words of then Secretary of Veterans' Services Coleman

Nee, legislators recognized that trauma as a result of combat

service, "may lead to . . . substance abuse," see Tuoti, Court

for Vets Opens in Boston, Enterprise, Mar. 7, 2014, and that,

for service members thus ensnared, "incarceration without

medical or clinical support results in a higher rate of

recidivism." Bolton, Court Throws Veterans a Lifeline, Boston

Globe, Apr. 11, 2013.

As one of the sponsors of the VALOR Act, Representative
 26

Jason Lewis, explained, the Legislature adopted the pretrial

diversion provisions of the VALOR Act as part of a broader

effort to provide an alternative to the traditional path of

conviction and incarceration, particularly for those "veterans

who face mental health and substance abuse issues." The Need to

Support, Thank Our Veterans, Beverly Citizen, Dec. 13, 2012.18

This approach is consistent with a growing national recognition

that the traditional processes of the criminal justice system

fail adequately to support veterans suffering from substance

abuse.19 Moreover, when the Legislature enacted the VALOR Act in

2012, it was well aware of the provisions of "Melanie's Law,"

18
As part of that ongoing effort, in 2014, the Legislature
enacted a second VALOR Act, also sponsored by Senator Michael J.
Rush, chair of the Joint Committee on Veterans Affairs. That
act, among other things, established a pilot program for
"veteran's courts," to assist with implementation of the
pretrial diversion provisions in the 2012 VALOR Act. See
St. 2014, c. 62, § 33.
19
Commentators nationally have emphasized that veterans
face unique challenges stemming from high rates of combat-
related PTSD and other mental health issues, and consequent high
rates of substance abuse, frequently leading to criminal
charges. See, e.g., American Bar Association, Resolution 105A,
at 3 (Feb. 2010) (ABA Report) (discussing "opinion of
psychiatrists and law enforcement officials that the traumas of
combat result in PTSD that can lead to addiction and erratic
behavior that result in criminal charges" and "[r]ecognizing the
important role" diversion programs can play); B.R. Schaller,
Veterans on Trial: The Coming Battles Over PTSD 18, 211 (2012).
They also recognize that traditional criminal sanctions for
those trapped in the cycle of substance abuse can "push veterans
further outside society," at great cost to veterans and society
as a whole. See ABA Report, supra at 6.
 27

St. 2005, c. 122, that it enacted in 2005 to increase penalties

for those who drive while impaired by drugs or alcohol.20 In

that light, categorically to exclude OUI, second offense, a

common issue stemming from substance abuse,21 from the

protections of G. L. c. 276A, as amended by the VALOR Act, would

undermine the legislative purpose.

This conclusion does not diminish recognition of the

serious hazard to public safety presented by those who drive

while impaired by drugs or alcohol, especially by those who do

so repeatedly, nor does it question the importance of deterring

this menacing conduct by all prescribed means. The Legislature

appears to have struck a delicate balance by permitting a

discretionary rehabilitative alternative to criminal penalties

in certain limited circumstances, for two discrete groups, that

is also consonant with deterrence in service of public safety.

It is also well to note that by vesting District Court

judges with discretion to order pretrial diversion to certain

military defendants, the statute does not in any way offer

20
See State House News Service (House Sess.), Oct. 27, 2005
(comments of Representative Salvatore DiMasi).
21
See, e.g., A.J. Peller, L.M. Najavits, S.E. Nelson, R.A.
LaBrie, & H.J. Shaffer, PTSD Among a Treatment Sample of Repeat
DUI Offenders, 23 J. Traumatic Stress 468 (Aug. 2010); National
Institute on Drug Abuse, Drugged Driving (rev. June 2016),
available at https://www.drugabuse.gov/publications/drugfacts/
drugged-driving [https://perma.cc/DRB8-A3VS].
 28

assurance of an alternative disposition.22 A judge has

discretion to allow pretrial diversion to a program only after a

defendant has been assessed by a specific program, and after

considering the Commonwealth's view of pretrial diversion for

that particular defendant, to that specific program.23 Even

after successful completion of that program, the judge retains

22
The pretrial statute has application only to the District
and Boston Municipal Courts. Even where the Commonwealth
proceeds by complaint in the District Court or the Boston
Municipal Court rather than by indictment in the Superior Court,
given that G. L. c. 276A, § 10, confines eligibility to those
without a prior conviction, it is difficult to envision
circumstances where a judge would exercise discretion favorable
to defendants charged with OUI offenses subsequent to a second
offense.
23
The decision that a particular defendant likely would
benefit from such a program is individualized and fact-specific,
reported in writing by a qualified treatment provider, working
in conjunction with the VA, after a two-week assessment period.
See G. L. c. 276A, §§ 3, 5. A judge considering a report that a
military defendant could benefit from such a program must weigh
that report, any statement by the Commonwealth, and the judge's
own observations, and determine, in the exercise of his or her
discretion, whether to allow a stay or a continuance so that the
military defendant can participate in the treatment program.
See G. L. c. 276A, § 5.

Throughout a defendant's participation in a pretrial
diversion program, the program must submit periodic reports to
the judge. See G. L. c. 276A, § 6. At any point during that
period, should the program report that the defendant has failed
to comply with program requirements, or if the defendant commits
a new offense, the judge may order the stay terminated and the
case returned to the trial list. See id. After the initial
period of the stay, if the program reports that an extension of
the stay would help the defendant successfully to complete the
program, the judge may order such an extension. See G. L.
c. 276A, § 7.
 29

discretion over the ultimate disposition of the matter; the

statute provides only that a judge "may" dismiss the original

charges upon successful completion. G. L. c. 276A, § 7.

Finally, while we conclude that the construction we provide

of the pretrial diversion statute, as amended by the VALOR Act,

satisfactorily reconciles it with the OUI statute and best

effectuates the Legislature's intent when enacting the VALOR Act

in 2012, we recognize that the matter is not free from doubt.

If the result here does not comport with what was intended, the

Legislature may, of course, remedy this by enacting clarifying

legislation. See Commonwealth v. Zapata, 455 Mass. 530, 533 n.4

(2009).

3. Conclusion. We answer both reported questions, "Yes,"

and remand the case to the District Court for further

proceedings consistent with this opinion.

So ordered.