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15-P-1207 Appeals Court
COMMONWEALTH vs. WILLIAM A. LOPEZ.
No. 15-P-1207.
Bristol. February 28, 2017. - May 10, 2017.
Present: Wolohojian, Milkey, & Shin, JJ.
Moped. Motor Vehicle, Moped, License to operate.
Complaint received and sworn to in the Fall River Division
of the District Court Department on October 22, 2013.
The case was heard by Cynthia M. Brackett, J.
Kelly M. Costa for the defendant.
Brenna C. Ferrick, Assistant District Attorney, for the
Commonwealth.
MILKEY, J. For operating a moped while his driver's
license was suspended, the defendant was charged with violating
G. L. c. 90, § 23, as a subsequent offense. After a bench trial
in District Court, he was found guilty of the underlying
offense, and he then pleaded guilty to the subsequent offense
portion. The judge sentenced him to ninety days in a house of
correction. On appeal, the defendant argues that although his
2
operating the moped with a suspended license may have been a
violation of G. L. c. 90, § 1B (which allows for fines but no
incarceration), as a matter of law, it cannot be a violation of
G. L. c. 90, § 23. Because we agree, we reverse his conviction.
Background. It is undisputed that the defendant was
driving his moped while his driver's license was suspended. The
factual dispute at trial was whether the moped met the statutory
definition of a "motorized bicycle" (as the defendant
maintained) or whether instead it was a "motorcycle" (as the
Commonwealth maintained). See G. L. c. 90, § 1, as amended by
St. 1992, c. 286, § 153 (definitions). This distinction
potentially mattered because the defendant was charged with
violating G. L. c. 90, § 23, as amended by St. 2009, c. 27,
§ 67, which, by its express terms, applies to "motor vehicles."
Motor vehicles, in turn, are defined to include motorcycles but
to exclude motorized bicycles. G. L. c. 90, § 1.
Whether a motorized two-wheeled vehicle qualifies as a
motorized bicycle generally depends on the size of its engine,
the nature of its transmission, and the maximum speed the
vehicle is capable of achieving. G. L. c. 90, § 1 (definition
of motorized bicycle).1 Based on the evidence adduced at trial,
1
A "pedal bicycle which has a helper motor" automatically
qualifies as a motorized bicycle. G. L. c. 90, § 1. A "non-
pedal bicycle" with a motor qualifies if the motor has "a
cylinder capacity not exceeding fifty cubic centimeters, [the
3
the judge accepted the defendant's position that his moped
qualified as a motorized bicycle, and the Commonwealth has
abandoned any argument to the contrary.
With the taxonomic issue resolved and other material facts
uncontested, the remaining dispute before the trial judge was
one of law: whether one operating a motorized bicycle while his
license was suspended can violate G. L. c. 90, § 23, even though
that statute expressly applies only to motor vehicles. The
transcript of the trial reveals that the judge thoughtfully
wrestled with that question. Based on her reading of our
decision in Commonwealth v. Griswold, 17 Mass. App. Ct. 461, 462
(1984), the judge concluded that the operator of a motorized
bicycle can violate § 23. With the defendant's license
suspension and his operation of the moped established, the judge
found him guilty.
Discussion. Although § 23 does not by its terms apply to
motorized bicycles, it must be read in conjunction with G. L.
c. 90, § 1B, the statute governing "[t]he operation of
'motorized bicycles' on the public ways in the Commonwealth."
Griswold, supra at 461. That "statute establishes minimum age
and licensing standards to insure that operators 'are familiar
with rules of the road and the safe operation of the vehicle.'"
bicycle has] an automatic transmission, and [the bicycle] is
capable of a maximum speed of no more than thirty miles per
hour." Ibid.
4
Id. at 462, quoting from Weiss, The Regulation of Mopeds: A
Legislative Proposal, 13 New Eng. L. Rev. 303, 320-322 (1977).
It also prohibits the operation of a motorized bicycle "on any
way by any person not possessing a valid driver's license or
learner's permit." G. L. c. 90, § 1B, as amended by St. 1989,
c. 341, § 61. Anyone who violates that licensing provision, or
who otherwise violates § 1B, is subject to specified fines that
escalate for subsequent offenses.2
Section 1B sets forth a limited number of operational
requirements particular to motorized bicycles.3 Beyond that,
§ 1B does not specify the operational requirements to which
operators of motorized bicycles will be subject but, instead,
generally states that people operating a motorized bicycle on a
public way "shall be subject to the traffic laws and regulations
2
Specifically, G. L. c. 90, § 1B, states:
"A person convicted of a violation of this section shall be
punished by a fine of not more than twenty-five dollars for
the first offense, not less than twenty-five nor more than
fifty dollars for a second offense, and not less than fifty
nor more than one hundred dollars for subsequent offenses
committed."
3
A motorized bicycle cannot be operated "at a speed in
excess of twenty-five miles per hour," or on "limited access or
express state highways where signs specifically prohibiting
bicycles have been posted." G. L. c. 90, § 1B. In addition,
anyone riding on a motorized bicycle is required to use
"protective headgear" in accordance with mandated safety
standards. Ibid.
5
of the [C]ommonwealth."4 G. L. c. 90, § 1B. It is the
significance of this cross-reference that is at issue in this
case.
In Griswold, we faced the question whether the operator of
a motorized bicycle could be prosecuted for operating under the
influence of alcohol in violation of G. L. c. 90, § 24(1)(a).
We concluded that even though "motor vehicle" is defined to
exclude motorized bicycles, the language in § 1B stating that
operators of motorized bicycles are "subject to the traffic laws
and regulations of the [C]ommonwealth" renders them subject to
laws governing the operation of motor vehicles on public ways,
including the sanctions applicable to those who violate such
laws. Griswold, 17 Mass. App. Ct. at 462. A contrary
interpretation would have meant that the defendant there could
have avoided sanctions for operating under the influence of
alcohol. We reasoned that such a "result would violate the rule
of statutory construction that 'a statute should be construed in
a fashion which promotes its purpose and renders it an effectual
piece of legislation in harmony with common sense and sound
reason.'" Ibid., quoting from Worcester Vocational Teachers
Assn. v. Worcester, 13 Mass. App. Ct. 1, 7-8 (1982).
4
The statute includes some specific exceptions to this
general requirement. For example, an operator of a motorized
bicycle may signal "his intention to stop or turn" by using
either hand. G. L. c. 90, § 1B. None of the stated exceptions
apply in the case before us.
6
The question we face in the case before us is whether the
§ 23 prohibition on operating a motor vehicle with a suspended
license likewise is a "traffic law or regulation" for purposes
of G. L. c. 90, § 1B. The Commonwealth's argument that it is a
traffic law is not without some force. After all, one cannot
violate § 23 without operating a vehicle on a public way.
However, the contrary interpretation also has force.5 A traffic
law or regulation readily can be understood as one that governs
how vehicles are operated. See Black's Law Dictionary 1726
(10th ed. 2014) (defining "traffic regulation" as "[a]
prescribed rule of conduct for traffic; a rule intended to
promote the orderly and safe flow of traffic"). Section 23 does
not regulate the manner in which vehicles are operated; instead,
it addresses the threshold question whether the driver can
operate a vehicle at all.6 Indeed, Griswold, 17 Mass. App. Ct.
5
The Commonwealth argues that because the Legislature has
twice amended § 1B since 1984 without material change, we should
presume that it accepted our interpretation of the statute in
Griswold. See Commonwealth v. Rivera, 445 Mass. 119, 128 (2005)
("when a statute after having been construed by the courts is
re-enacted without material change, the Legislature are presumed
to have adopted the judicial construction put upon it"
[quotation omitted]). However, this begs the question of how
the holding in Griswold applies to the case before us. For the
reasons we explain, we respectfully disagree with the judge that
Griswold compels us to accept the Commonwealth's interpretation
of the statute.
6
By comparison, under G. L. c. 90, § 24(1)(a), the statute
at issue in Griswold, the Commonwealth must prove that the
defendant was operating the vehicle "under the influence" of
7
at 462, itself appears to draw a distinction between licensing
requirements and operational requirements.
Also of significance is the fact that operating a motorized
bicycle with a suspended license would constitute an express
violation of § 1B (as the operation of such a vehicle "by any
person not possessing a valid driver's license or learner's
permit"). The Legislature's decision to expressly criminalize
such conduct in § 1B, and to establish specific, low-level
penalties for that conduct, further suggests that the
Legislature did not intend indirectly to make it an additional
crime under § 23.7 Moreover, this means that such conduct is
subject to punishment without our needing to interpret "traffic
laws and regulations" expansively. Thus, unlike in Griswold,
alcohol, that is, that alcohol "diminished the defendant's
capacity to drive safely." Commonwealth v. Tynes, 400 Mass.
369, 374-375 (1987). Thus, Griswold involved a statute that
directly implicated the operation of the vehicle.
7
To be clear, we emphasize that we are not saying that the
Legislature was precluded from criminalizing such conduct under
both sections. As the Commonwealth accurately states, the
Legislature generally is free to criminalize particular conduct
under multiple statutes, leaving the decision of which charges
to bring to the discretion of the Commonwealth. See
Commonwealth v. Hudson, 404 Mass. 282, 287-288 (1989)
(recognizing that stealing goods from a store could be
prosecuted either as shoplifting or as larceny by asportation).
8
supra, the Commonwealth's interpretation is not compelled by
"common sense and sound reason."8
In sum, although the Commonwealth's interpretation of the
statutory text is plausible, so too is the defendant's
alternative reading. Accordingly, we are required to accept the
defendant's interpretation under the rule of lenity. See
Commonwealth v. Williamson, 462 Mass. 676, 679 (2012), quoting
from Commonwealth v. Roucoulet, 413 Mass. 647, 652 (1992) ("when
a criminal statute can 'plausibly be found to be ambiguous,' the
rule of lenity applies, and we 'give the defendant the benefit
of the ambiguity'"). Because, as a matter of law, the
defendant's operating a motorized bicycle with a suspended
license does not constitute a violation of G. L. c. 90, § 23,
his conviction under that statute cannot stand.
In closing, we acknowledge that good policy arguments can
be made for allowing the Commonwealth to bring a § 23 charge
against someone who operates a motorized bicycle with a
8
For the sake of completeness, we note that we touched on
this area of the law in Commonwealth v. Ceria, 13 Mass. App. Ct.
230, 233 n.3 (1982), albeit in dicta. There, after observing
that motorized bicycles are excluded from the definition of
motor vehicles but are subject to the traffic laws of the
Commonwealth, we foreshadowed our subsequent holding in Griswold
by stating our view that an operator of a motorized bicycle
could be arrested for violations such as operating under the
influence or driving to endanger. However, we also concluded
that an operator of a motorized bicycle could not be arrested
for not having a license in his possession, even though G. L.
c. 90, § 21, authorizes such arrests with respect to operators
of motor vehicles.
9
suspended license. However, whether to modify the statute to
allow such prosecutions properly falls to the Legislature. See
Brach v. Chief Justice of the Dist. Ct. Dept., 386 Mass. 528,
538-539 (1982).
Judgment reversed.
Finding set aside.
Judgment for the defendant.
Commonwealth v. Lopez
Combined Opinion