In Commonwealth v. Nascimento, the Supreme Judicial Court affirmed the dismissal of a complaint charging the defendant with operating a motor vehicle after his license had been administratively suspended for OUI on the ground that the statute under which the defendant was charged (G.L. c.90, §23, third par.) did not apply to the circumstances of his case.
The background was as follows. “On January 24, 2016, a State police trooper stopped the defendant’s vehicle after observing him commit several marked lane violations…. 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 … his right to operate a motor vehicle was administratively suspended for thirty days” pursuant to G.L. c.90, §24(1)(f)(2), which “allows police to confiscate immediately the license of an individual who has failed a breathalyzer test.” “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,” the defendant’s vehicle was again stopped by a State trooper and when “the defendant admitted that his license had been suspended,” he “was arrested and charged with operating a motor vehicle after license suspension for OUI, in violation of [G.L. c.90,] §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.
In its decision, the SJC noted that the statute under which the defendant was charged (G.L. c.90, §23, third par.) “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 mandatory minimum sentence”: §§24(1)(a), 24D, 24E, 24G, 24L, and 24N. Here, stated the Court, “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.” Therefore, “we conclude that the defendant was not properly charged under that statute.”
OUI charges, and related offenses, are serious and have with many severe consequences – including mandatory minimum time in certain cases, and license suspension. If you or a loved on is charged with OUI or a related offense it is of critical importance that you have an attorney who is extremely experienced with these type of criminal charges and who will provide you with the best defense possible. Attorney Daniel Cappetta has successfully represented many clients charged with OUI and related offenses. Call him today for a free consultation.