Commonwealth v. Richards
Commonwealth v. Richards
Opinion
*1169 **413 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 was subject to a lifetime suspension. The defendant was later found **414 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
,
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.
*1170 G. L. c. 90, § 24 (1) ( c ) (2). Individuals with two prior **415 OUI convictions face an eight-year suspension. G. L. c. 90, § 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.
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."
**416
b. Facts . On May 6, 2010, the defendant was arrested for OUI. He had three prior OUI convictions from 1989, 1996, and 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
*1171 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 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 **417 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."
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.
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 *1172 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 **418 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.
,
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
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 for the determination whether restoration "would likely endanger the public safety" to be made on the basis of the facts as they exist at
**419
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
,
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, *1173 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 omitted).
Custody of Victoria
,
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:
**420 "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
*1174
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
,
This understanding of the statutory language is also consistent
**421
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,
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
,
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 **422 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. *1175 3. Conclusion . For the reasons discussed, the decision granting the defendant's motion for restoration of his driver's license is reversed.
So ordered .
Where a defendant refuses the breathalyzer and is later 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).
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.
Pursuant to our decision in
Commonwealth
v.
Bauer
,
The stated reason for the dismissal was listed as "[b]rief/appendix not received or status report not filed."
Those circumstances would include his prior driving record, and other evidence of alcohol abuse.
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
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.
We also note that, even under § 24 (1) ( c ), defendants subject to a lifetime suspension are not eligible to apply for a hardship license.
Reference
- Full Case Name
- COMMONWEALTH v. Eric A. RICHARDS.
- Cited By
- 2 cases
- Status
- Published