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SJC-12213
COMMONWEALTH vs. TIMOTHY O. DAYTON.
Berkshire. January 9, 2017. - June 1, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.
Motor Vehicle, Operating under the influence. Constitutional
Law, Preventive detention. Statute, Construction.
Indictments found and returned in the Superior Court
Department on October 5, 2015.
A motion for pretrial detention was heard by John A.
Agostini, J., and a question of law was reported by him.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Ryan D. Smith, Committee for Public Counsel Services, for
the defendant.
Joseph G.A. Coliflores, Assistant District Attorney, for
the Commonwealth.
HINES, J. A Superior Court judge reported the question
whether G. L. c. 276, § 58A, permits the Commonwealth to seek
pretrial detention without bail when a defendant has two prior
convictions of operating a motor vehicle while under the
2
influence of alcohol (OUI), G. L. c. 90, § 24, and is charged
with OUI, third offense. Because § 58A requires three OUI
convictions before a defendant can be so detained, we answer the
question in the negative.
Background. In October, 2015, the defendant, Timothy O.
Dayton, was charged in the Superior Court with eight motor
vehicle violations, including two indictments for OUI, third
offense, in relation to two separate incidents pending in the
District Court. Each OUI indictment alleged that Dayton had
been convicted of OUI twice before -- in 1988 and in 1989.
The Commonwealth moved for a dangerousness hearing pursuant
to § 58A. The defendant opposed the motion, arguing that § 58A
permits a dangerousness hearing only after three prior OUI
convictions, not two.
A Superior Court judge initially agreed with the defendant,
and denied the Commonwealth's motion and its motion for
reconsideration. However, the Commonwealth sought review by a
single justice of this court, pursuant to G. L. c. 211, § 3.
The single justice ordered the judge to hold the dangerousness
hearing, at the same time acknowledging that the language of
§ 58A was "unclear" and noting that the judge was "not precluded
from reporting the question to the [Appeals Court]."
After hearing, the judge determined that the defendant was
dangerous within the meaning of § 58A and ordered him held
3
without bail pending trial. On the defendant's motion, the
judge reported the following question to the Appeals Court:
"Whether a defendant with two prior convictions for [OUI],
pursuant to G. L. c. 90, [§ 24 (1) (a) (1)], who is
arrested and charged with [OUI], [t]hird [o]ffense, may be
held without the right to bail pursuant to G. L. c. 276,
[§ 58A (1)]."
Before the question was resolved, the defendant pleaded guilty
to the eight pending charges. 1 We subsequently transferred the
reported question to this court on our motion.
Discussion. Primarily, the Commonwealth argues that the
OUI clause of § 58A, and our cases discussing it, permit
pretrial detention when a defendant has only two prior OUI
convictions. The OUI clause of § 58A provides, in relevant
part, that the Commonwealth may seek detention based on
dangerousness when a defendant is "arrested and charged with
. . . a third or subsequent conviction for a violation of [G. L.
c. 90, § 24]." G. L. c. 276, § 58A (1).
We begin with the language of the statute itself, and
"presume, as we must, that the Legislature intended what the
words of the statute say." Commonwealth v. Williamson, 462
Mass. 676, 679 (2012), quoting Commonwealth v. Young, 453 Mass.
1
Of course, the defendant's plea rendered the reported
question moot because it ended his period of pretrial detention.
Regardless, we will answer the question because it is important
to the administration of G. L. c. 276, § 58A, and is likely to
recur, yet evade appellate review. See Commonwealth v.
Murchison, 428 Mass. 303, 305 (1998).
4
707, 713 (2009). "[C]lear and unambiguous" statutory language
must be given its ordinary meaning (citation
omitted). Williamson, supra. However, when the language of a
criminal statute plausibly can be found ambiguous, the rule of
lenity requires that the defendant receive the benefit of the
ambiguity. 2 Commonwealth v. Constantino, 443 Mass. 521, 525
(2005).
The OUI clause of § 58A is ambiguous. Even setting aside
the significant syntactical defects that arise when the OUI
clause is read in the entire context of § 58A (1), we do not
know what it means to be "arrested and charged with" a
"conviction." G. L. c. 276, § 58A (1). This formulation is at
war with itself. Although it hardly needs explication, being
"arrested" and "charged" with a crime is wholly distinct from a
"conviction" for that crime. See Black's Law Dictionary 130
(10th ed. 2014) ("arrest" is "the apprehension of someone for
the purpose of securing the administration of the law, esp. of
bringing that person before a court"); id. at 282 ("charge" is
"[a] formal accusation of an offense as a preliminary step to
2
We recognize that § 58A is not a "criminal" statute in the
sense of enumerating the elements of a particular crime.
However, it applies only when someone has been charged with a
crime, and it opens the door to a potentially severe curtailment
of a defendant's liberty pending trial. See generally G. L.
c. 276, § 58A. See also Commonwealth v. Madden, 458 Mass. 607,
610 (2010) (§ 58A contemplates "increasingly graduated levels of
restraint"). Therefore, the rule of lenity applies.
5
prosecution"); id. at 408 ("conviction" contemplates "the state
of having been proved guilty"). Given this ambiguity, we
interpret § 58A as requiring three, not two, prior OUI
convictions. 3
In essence, the Commonwealth asks the court to avoid this
ambiguity by performing surgery on the OUI clause -- removing
the words "conviction for a" and leaving behind "arrested and
charged with . . . a third or subsequent . . . [OUI] violation."
This we cannot do. See, e.g., Commonwealth v. Daley, 463 Mass.
620, 623 (2012) (when interpreting statute, no words are to be
regarded as superfluous). The defendant, on the other hand,
proposes that the plain language of the OUI clause contemplates
a situation where an indictment for OUI, fourth offense,
"charges" a defendant with his three prior OUI convictions.
Although that suggestion seems plausible based on the
indictments in this case, the language of § 58A leaves us unsure
whether this is really what the Legislature had in mind. In any
event, it comports with our conclusion under lenity principles.
The Commonwealth also argues that its interpretation finds
support from a comparative reading alongside the other predicate
offenses in § 58A, as well as alongside the "escalating penalty
3
Of course, the Legislature is free to change § 58A if it
disagrees with our interpretation, and, indeed, revisions for
the sake of clarity would be welcome. Cf. Commonwealth v.
LeBlanc, 475 Mass. 820, 825 (2016) (Gants, C.J., concurring).
6
structure" for OUI, third offense, in G. L. c. 90, § 24.
However, these provisions deepen, rather than resolve, the
ambiguity. For instance, the increasing penalties for OUI
offenses can just as easily be read as support for the
defendant's position -- that only when a defendant
reoffends after facing the more severe penalties attached to a
third OUI conviction is the defendant dangerous enough to
potentially merit pretrial detention. This argument also
mistakenly assumes that § 58A is punitive in nature, when
instead it presumes a defendant's innocence and focuses on
protecting the public and ensuring the defendant's appearance at
trial. See Commonwealth v. Madden, 458 Mass. 607, 610 (2010).
Notwithstanding this ambiguity, the Commonwealth points out
that this court has, on two prior occasions, appeared to endorse
the Commonwealth's reading of § 58A. See Commonwealth v. Young,
453 Mass. 707, 715-716 (2009) (pretrial detention possible when
individual is arrested and charged with violation "that could
result in a third or subsequent [OUI] conviction"); Commonwealth
v. Dodge, 428 Mass. 860, 864 n.7 (1999) (§ 58A "specifically
includes charges that could result in a third or subsequent
[OUI] conviction"). The Commonwealth concedes that this
language in Young and Dodge was "initially dicta." However, it
argues that the Legislature, by readopting § 58A in the wake of
7
those cases -- and without changing the OUI clause -- has
adopted our dicta.
This argument fails. The Commonwealth is correct that we
"presume that when the Legislature amends a statute it is 'aware
of the prior state of the law as explicated by the decisions of
this court,' . . . and where it has reenacted statutory language
without material change, [the Legislature is] 'presumed to have
adopted the judicial construction put upon it'" (citations
omitted). Commonwealth v. Colturi, 448 Mass. 809, 812 (2007).
However, where the Commonwealth agrees that this court has
discussed the relevant language of the statute only in
nonbinding dicta, it can hardly be said that we have
"explicated" the statute or put our "judicial construction" on
it -- quite the opposite, at least until today. It is one thing
to infer the Legislature's intent based on an implied awareness
of our express holdings; it is quite another to infer it based
on dictum in our opinions.
Alternatively, the Commonwealth points us toward the
residual clause of § 58A. This clause provides, in relevant
part, that the Commonwealth "may move, based on dangerousness,
for an order of pretrial detention or release on conditions for
. . . any other felony that, by its nature, involves a
substantial risk that physical force against the person of
another may result" (emphasis added). G. L. c. 276, § 58A (1).
8
The Commonwealth argues that even if OUI, third offense, does
not trigger § 58A under the OUI clause, it does so as an "other
felony" under the residual clause.
We are not persuaded by this argument. We have already
concluded that the OUI clause of § 58A is ambiguous such that
the rule of lenity necessitates an interpretation requiring
three, and not two, prior OUI convictions. To then interpret
the residual clause as permitting the application of § 58A based
on just two prior OUI convictions would defeat the application
of the rule of lenity in this case, and we decline to do so.
Relatedly, the Commonwealth's reading of the residual clause
conflicts with the principle of statutory construction that
where the Legislature used specific language in one part of an
enactment (here, the OUI clause), but not in another (here, the
residual clause), the language should not be implied where it is
not present. See Dodge, 428 Mass. at 865. In other words, it
would make little sense for the Legislature to adopt a statute
that in one clause specifically requires three prior OUI
convictions as a prerequisite, but then, via a residual clause,
requires only two prior OUI convictions as a prerequisite.
Because "we shall not construe a statute . . . to produce absurd
results" (citation omitted), Commonwealth v. Raposo, 453 Mass.
739, 745 (2009), we decline to adopt the Commonwealth's
alternative argument.
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Conclusion. For the reasons discussed, the reported
question is answered in the negative.
So ordered.
LOWY, J. (dissenting). I disagree with the court's reading
of G. L. c. 276, § 58A (1). As indicated by our prior
interpretations of this provision, I do not believe that the
statutory language presents the degree of ambiguity suggested by
the court.
The relevant portion of the statute provides, "The
commonwealth may move, based on dangerousness, for an order of
pretrial detention or release on conditions for . . . arrested
and charged with . . . a third or subsequent conviction for a
violation of [G. L. c. 90, § 24]." Although it is true that a
person cannot be "arrested and charged with" a conviction, I
disagree with the court that the language is so ambiguous that
the provision "is at war with itself." Ante at . Rather, I
believe it is apparent that the Legislature intended to enable
the Commonwealth to seek pretrial detention for individuals who
were "arrested and charged with" what could be their third OUI
conviction.
Indeed, this is precisely how this court has interpreted
the provision in the past, albeit in dicta. In Commonwealth
v. Young, 453 Mass. 707, 715 (2009), we wrote that pretrial
detention is available when the individual has committed an
offense that "evinces a disregard for the safety and well-being
of others." As an example, we stated that "the Commonwealth may
2
seek pretrial detention if an individual has been arrested and
charged with a violation of G. L. c. 90, § 24, that could result
in a third or subsequent conviction of operating while under the
influence" (emphasis added). Id. at 715-716. See Commonwealth
v. Dodge, 428 Mass. 860, 864 n.7 (1999) (grounds for pretrial
detention "specifically include[] charges that could result in a
third or subsequent conviction for operating [a motor vehicle]
while under the influence of liquor" [emphasis added]). I
believe that we made these observations in dicta because they
reflect a commonsense understanding of the statute.
Because I interpret § 58A (1) to allow for the Commonwealth
to seek pretrial detention for individuals arrested and charged
with what could be the third or subsequent OUI conviction, I
respectfully dissent.