Commonwealth v. Nascimento

98 N.E.3d 188, 479 Mass. 681
CourtMassachusetts Supreme Judicial Court
DecidedJune 5, 2018
DocketSJC 12442
StatusPublished
Cited by3 cases

This text of 98 N.E.3d 188 (Commonwealth v. Nascimento) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Nascimento, 98 N.E.3d 188, 479 Mass. 681 (Mass. 2018).

Opinion

BUDD, J.

**681 General Laws c. 90, § 23, third par. ( § 23, third par.), provides for a mandatory minimum sentence of sixty days in a house of correction on a conviction of operating a motor vehicle after the suspension or revocation of an individual's driver's license for operating while under the influence of alcohol or controlled substances (OUI). Here we are asked to determine whether the defendant, Jose Nascimento, who operated a motor vehicle after his license was administratively suspended *189 pursuant to G. L. c. 90, § 24 (1) ( f ) (2), 1 was properly charged under § 23, third par. The defendant filed a motion to dismiss the charge in the Boston Municipal Court, which the judge allowed. Because **682 § 24 (1) ( f ) (2) is not one of the provisions enumerated in § 23, third par., we conclude that the defendant was not properly charged under that statute. Accordingly, we affirm the judge's order allowing in part the motion to dismiss.

Background . The pertinent facts, taken from the record, are undisputed. On January 24, 2016, a State police trooper stopped the defendant's vehicle after observing him commit several marked lane violations. Several other troopers arrived to assist. During the stop, the defendant was exhibiting signs of possible intoxication, including glassy or bloodshot eyes and slurred speech. A number of field sobriety tests were conducted, which indicated that the defendant was intoxicated. A breathalyzer test also was administered, which measured the defendant's alcohol level at 0.132 per cent. The defendant was arrested and transported to the State police barracks, where he submitted to a blood alcohol test that registered his alcohol level to be 0.13 per cent. The defendant was given a citation and, pursuant to § 24 (1) ( f ) (2), his license was revoked and his right to operate a motor vehicle was administratively suspended for thirty days. The defendant was then arraigned for, among other things, OUI, in violation of G. L. c. 90, § 24 (1) ( a ).

While the defendant's charges were pending, on February 17, 2016, a State police trooper performed a computer query on a motor vehicle that had passed him. He learned that the vehicle was registered to the defendant and that the defendant's license had been suspended for OUI. When the trooper stopped the vehicle, he recognized the driver from a photograph provided by the registry of motor vehicles. When the trooper asked the defendant for his license and registration, the defendant admitted that his license had been suspended. The defendant was arrested and charged with operating a motor vehicle after license suspension for OUI, in violation of § 23, third par.

The defendant moved to dismiss the charge of operating after a suspension for OUI. Concluding that § 23, third par., did not apply to the defendant, the judge granted the motion in part and dismissed the OUI portion of the charge, leaving the defendant charged with operating after a suspension.

The Commonwealth appealed, and we transferred the case from the Appeals Court on our own motion.

Discussion . We interpret the meaning of the statute under which the defendant was charged de novo. Commonwealth v. Martin , 476 Mass. 72 , 75, 63 N.E.3d 1107 (2016). Section 23, third par., provides in relevant part:

**683 "Any person convicted of operating a motor vehicle after his license to operate has been suspended or revoked pursuant to a violation of [ § 24 (1) ( a ) 2 ], or pursuant to [§ 24D 3 ], [24E 4 ], [24G 5 ], [24L 6 ], *190 or [24N 7 ] of this chapter, ... or after notice of such suspension or revocation of his right to operate a motor vehicle without a license has been issued and received by such person ... and prior to the restoration of such license ... shall be punished ... by imprisonment ... for not less than sixty days ...."

Thus, the statute mandates a minimum sixty-day sentence upon a conviction of operating with a suspended license where one's license had been suspended under any one of the enumerated provisions.

Section 23 clearly enumerates the provisions that trigger the **684 mandatory minimum sentence. See Commonwealth v. LeBlanc , 475 Mass. 820 , 821, 62 N.E.3d 34 (2016) ("Clear and unambiguous language is conclusive as to legislative intent"). Here, the defendant's license was suspended pursuant to § 24 (1) ( f ) (2), which is not enumerated in § 23, third par. There is no indication in the statutory language that we should add to the list provided. See Commonwealth v. McLeod , 437 Mass. 286 , 294, 771 N.E.2d 142 (2002) ("We will not add words to a statute that the Legislature did not put there ..."). Thus we reject the Commonwealth's contention that § 24 (1) ( f ) (2) is merely an administrative mechanism permitting police to suspend a license upon a violation of § 24 (1) ( a ), and that therefore § 23, third par., should be read to include § 24 (1) ( f ) (2).

We also disagree with the Commonwealth that the provisions of G. L. c. 90, § 24N, which permit a judge to suspend one's license upon the issuance of a complaint alleging OUI in violation of G. L. c. 90, § 24 (1) ( a ) (1), support its argument. There is a significant difference between § 24 (1) ( f

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Bluebook (online)
98 N.E.3d 188, 479 Mass. 681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-nascimento-mass-2018.