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17-P-1144                                               Appeals Court

                COMMONWEALTH   vs.   ARTURO D. CUEVA.


                           No. 17-P-1144.

     Suffolk.       September 11, 2018. - February 12, 2019.

                Present:   Vuono, Agnes, & Henry, JJ.


Motor Vehicle, Operating under the influence, License to
     operate. Due Process of Law, Blood alcohol test,
     Suspension of driver's license, Notice. Practice,
     Criminal, Prior conviction. Evidence, Blood alcohol test,
     Prior conviction. Notice. Registrar of Motor Vehicles,
     Records.


     Complaint received and sworn to in the Chelsea Division of
the District Court Department on August 31, 2015.

    The case was tried before Matthew J. Nestor, J.


     Joseph P. Lattimore for the defendant.
     Christopher Boutin, Assistant District Attorney, for the
Commonwealth.


    VUONO, J.    A jury in the Chelsea Division of the District

Court Department convicted the defendant of operating a motor

vehicle while under the influence of intoxicating liquor (OUI),

third offense, and operating a motor vehicle after his license
                                                                    2


had been suspended as a result of a prior OUI conviction.1     On

appeal, the defendant claims that the judge erred by allowing in

evidence unredacted records of the registry of motor vehicles

(RMV), which contained multiple references to his refusal to

submit to a chemical test.2   He also contends that the evidence

was insufficient to prove that he had notice his license had

been suspended.

     We conclude that the failure to redact the RMV records was

error and requires us to reverse the judgment on the charge of

OUI, third offense.   We also conclude that the Commonwealth

failed to prove notice to the defendant of his license

suspension.   Consequently, judgment must enter for the defendant

on the charge of operating a motor vehicle after suspension.3




     1 An additional charge of reckless operation of a motor
vehicle was dismissed prior to trial.

     2 The defendant also claims that testimony describing his
alleged refusal to perform the "one-leg stand" field sobriety
assessment constituted improper refusal evidence. The defendant
did not object to the testimony, and therefore, the trial judge
did not determine whether the defendant was unwilling to perform
the test or, instead, indicated that he was not capable of
performing the test. See Commonwealth v. Brown, 83 Mass. App.
Ct. 772, 778-779 (2013). We express no view on the
admissibility of the challenged testimony and presume the
question will be resolved by the judge at any retrial.

     3 Given our conclusion, it is not necessary to address the
defendant's additional claim that the judge erred by not giving
an instruction informing the jury that evidence of the
defendant's prior OUI conviction could be used only to determine
whether the Commonwealth had proved the reason for the
                                                                        3


     Background.    1.   Facts.   On August 28, 2015, at about 6:45

P.M., Officer Steven Launie of the Revere police department was

stopped in traffic on the American Legion Highway in Revere.

The defendant's vehicle, a gray Toyota Camry, was in front of

the officer.    After a few minutes, the defendant pulled out of

the lane of traffic onto the sidewalk and drove approximately

200 feet.   Officer Launie activated his emergency lights and

followed the defendant on the sidewalk, after which the

defendant turned into the parking lot of a liquor store, where

he parked without incident.       Officer Launie parked behind the

Camry, got out of his cruiser, approached the defendant's

vehicle, and knocked on the driver's side window.       The defendant

initially held up his hand indicating that the officer should

wait.   Officer Launie knocked again and told the defendant to

roll down the window.     The defendant did not follow the

officer's instruction.    Instead, he opened the vehicle door.

Officer Launie instructed him to close the door, and to remain

in the automobile and roll down the window.      The defendant

complied, and Officer Launie requested his license and

registration.   The defendant produced a Massachusetts

identification card and stated that his girl friend, who owned




defendant's license suspension. See Commonwealth v. Beaulieu,
79 Mass. App. Ct. 100, 102-103 (2011).
                                                                      4


the vehicle, had his driver's license.     He could not find the

vehicle's registration, despite emptying the glove compartment

in an effort to locate it.   During this exchange, Officer Launie

smelled the odor of alcohol and noticed that the defendant's

movements were slow.    After the defendant removed his

sunglasses, the officer further observed that his eyes appeared

glassy and bloodshot.

    Suspecting that the defendant had been driving while under

the influence of alcohol, Officer Launie decided to assess his

sobriety and asked him to step out of the vehicle and perform

certain tasks starting with the "one-leg stand" test.        The

defendant said that he would not be able to perform the task

because he was not strong enough, and in fact, he performed

poorly.   Next, the defendant was not able to walk nine steps in

a straight line and turn around.     At this point, Officer Launie

formed the opinion that the defendant was under the influence of

alcohol and placed him under arrest.     The defendant was

transported to the police station by another officer, who had

arrived on the scene to provide backup support.

    The defendant did not testify at trial.      His defense,

developed through cross-examination and argument, was that his

ability to drive was not impaired.    He asserted, through

counsel, that he drove on the sidewalk to avoid the traffic and

that the sidewalk was wide enough for vehicles.     He also claimed
                                                                  5


that vehicles often parked on that sidewalk and introduced

evidence -- two photographs -- to corroborate his claim.

Lastly, he argued that the Commonwealth failed to prove that on

August 28, 2015, he knew his license had been suspended.

     2.   The docket sheet and RMV records.   At trial, the

prosecutor introduced a certified copy of a criminal docket

sheet showing that the defendant had pleaded guilty to OUI in

the Peabody Division of the District Court Department

approximately seven months earlier on January 13, 2015.4

According to the docket, the defendant's license was suspended

for two years from the date of the plea.5     Thereafter, the

prosecutor introduced a copy of the defendant's RMV record,

certified as of October 13, 2015.    The exhibit consisted of

fifteen pages.    The first page contained the defendant's

identifying information, including his photograph, name,

address, date of birth, social security number, and driver's

license number.   The second page set forth the defendant's




     4 Although the issue has not been raised on appeal, we note
that the docket sheet was only partially redacted. The first
page of the exhibit contains handwritten notations reflecting a
violation of probation (denoted "VOP") on September 2, 2015. We
presume that further redaction will be required at any retrial.
See Commonwealth v. Crayton, 470 Mass. 228, 249 n.27 (2014).

     5 In the box labelled "Sentence or other disposition" were
the following handwritten comments: "60 days H/C ss 2yr 1-12-
17," "2 yr loss of license," and "24Q Evaluation."
                                                                   6


historical license information, including changes of address,

and on the third page, the registrar certified that the

documents were true copies, and that there had been no

subsequent reinstatement of the defendant's license.   The

following six pages were copies of what appeared to be computer

generated letters addressed to the defendant at addresses

associated with his license.   One of the letters, dated August

31, 2015 -- three days after the defendant's arrest in this case

-- stated, "You are hereby notified that effective 08/28/15,

your license/right to operate a motor vehicle is suspended for

[three] years for CHEM TEST REFUSAL, pursuant to [G. L. c. 90,

§ 24 (l) (f) (l)]."    The letter specified that the "CHEM TEST

REFUSAL," described as an "offense," occurred on August 28,

2015, in Revere (the date and location of the OUI offense at

issue here).   The letter informed the defendant of his right to

a "Chemical Test Refusal" hearing within fifteen days of his

arrest and set forth information about the location and timing

of such hearings.   Of the remaining five letters, three

concerned the revocation or suspension of the defendant's

license on prior occasions for a "CHEM TEST REFUSAL" on October
                                                                  7


30, 2014, in Lynnfield,6 and a conviction of OUI on January 13,

2015.7,8

     The remainder of the exhibit consisted of two copies of a

computer printout of the defendant's three-page driving history.

The printout contained the defendant's name, address, date of

birth, and license number, followed by a list of entries,

spanning twenty-two years, entitled "A COMPLETE LIST OF ALL

OFFENSES AND ACTIONS ON FILE."   The entries reflected that the

defendant had committed numerous violations including, among

other things, speeding, leaving the scene of property damage,




     6 The letter dated October 31, 2014, stated, "You are hereby
notified that effective 10/30/14, your license/right to operate
a motor vehicle is suspended for 180 days for CHEM TEST REFUSAL"
on October 30, 2014, in Lynnfield. This letter, like the one
dated August 31, 2015, informed the defendant of his right to a
hearing to contest the suspension.

     7 The letter dated January 14, 2015, stated, "You are hereby
notified that effective 01/24/15, your license/right to operate
a motor vehicle is revoked for an additional 1 year for DWI
LIQUOR." The letter included a notation that the defendant's
license was already under suspension due to his "CHEM TEST
REFUSAL" on October 30, 2014. A virtually identical letter
dated January 21, 2015, extended the revocation, effective April
28, 2015.

     8 In addition, in letters dated September 2 and September 3,
2015, respectively (after the incident at issue here), the
defendant was informed first that his license would be suspended
(effective ninety days from the date of the letter) for "an
indefinite period" as a result of an outstanding default or
arrest warrant, and then that the pending license suspension was
removed because the warrant had been cleared. See note 4,
supra.
                                                                     8


and seat belt and lane violations.     Two entries were related to

the defendant's refusal to submit to a chemical test on October

30, 2014, and August 28, 2015, and specify that the defendant's

driver's license had been suspended due to his "CHEM TEST

REFUSAL" on both dates.

    Discussion.   1.   Refusal evidence.    The defendant argues

that evidence of his refusal to submit to a "CHEM TEST" violated

his right against self-incrimination under art. 12 of the

Massachusetts Declaration of Rights.     Because the defendant did

not object to the admission of the RMV records, our review is

limited to determining whether an error occurred and, if so,

whether the error resulted in a substantial risk of a

miscarriage of justice.   See Commonwealth v. Beaulieu, 79 Mass.

App. Ct. 100, 103 (2011).

    "In Massachusetts it is settled that at a criminal trial,

evidence that the defendant refused to consent to a blood test

or analysis of breath to detect alcohol is not admissible."

Commonwealth v. Ranieri, 65 Mass. App. Ct. 366, 370-371 (2006),

citing Commonwealth v. Zevitas, 418 Mass. 677, 681-684 (1994);

Opinion of the Justices, 412 Mass. 1201, 1210-1211 (1992).

"Underlying the reasoning in this line of cases is the

proposition that refusal evidence is testimonial in nature and

that its admission violates the privilege against self-

incrimination under the Declaration of Rights of the
                                                                   9


Massachusetts Constitution."   Ranieri, supra at 371.   See

Commonwealth v. AdonSoto, 475 Mass. 497, 500 (2016).

     The Commonwealth argues there was no reversible error for

two reasons.   First, the Commonwealth asserts that, because the

prosecutor did not draw the jurors' attention to the various

notations and entries in the RMV records that reflected the

defendant's refusal to submit to a chemical test, the defendant

was not harmed.   This assertion is not supported by the record.

The prosecutor referred to the documents at issue during her

opening statement and relied upon them during her closing

argument.9   More fundamentally, it matters not whether the

prosecutor referred to the documents.   We expect that jurors

will review documents that are admitted in evidence without

qualification, and we do not condone the notion that juries will




     9 In her opening statement, the prosecutor stated that the
booking officer, Sergeant David Pressley, would "provide [the
jury with] information that connects the dots between the series
of paperwork that [the Commonwealth] will be admitting as
exhibits. He will be providing pieces of that puzzle that . . .
will then connect the defendant to the paperwork documenting the
fact that that was the reason why his license was suspended."
Later, in her closing argument, the prosecutor referred to
individual pages of the exhibits, including the RMV letters, and
stated that the documents "explain why [the defendant's] license
is suspended." While the prosecutor likely was attempting to
draw the jury's attention to the defendant's prior OUI
conviction as the basis for the license suspension, as we have
noted, the exhibits also indicate that the defendant's license
was suspended for his refusal to submit to a chemical test.
                                                                   10


consider only information to which they are specifically

directed.

    Second, the Commonwealth claims that, even if the jury did

review the records, the jury would not have understood the

meaning of the words "CHEM TEST" or "CHEM TEST REFUSAL."      We

reject this assertion.   Almost two decades ago, we observed that

"there is widespread public information and common knowledge

about breathalyzer testing."    Commonwealth v. Downs, 53 Mass.

App. Ct. 195, 199 (2001).    Presumably, the public's knowledge of

such testing has not declined.    In any event, we have no

difficulty concluding that jurors are capable of understanding

that the term "CHEM TEST" refers to a breathalyzer or blood

test.

    The inclusion of documents that contain references to the

defendant's refusal to submit to a chemical test, as here,

implicates the same concerns that the Supreme Judicial Court

addressed in Opinion of the Justices, 412 Mass. at 1209-1211.

Specifically, the notations referring to the defendant's "CHEM

TEST REFUSAL" on August 28, 2015, could lead the jury to

speculate that the defendant refused to submit to testing

because he believed or suspected that he had had too much to

drink.   Speculation of this nature could lead to "distinct

prejudice to a defendant."     Downs, 53 Mass. App. Ct. at 199.

The admission of the RMV records without redaction of, at a
                                                                  11


minimum, all references to the defendant's refusals to submit to

a chemical test was, therefore, error.10

     We now turn to the question whether the error created a

substantial risk of a miscarriage of justice.     In our review, we

consider four factors:     "[(1)] the strength of the

Commonwealth's case[; (2)] the nature of the error[; (3)] the

significance of the error in the context of the trial[;] and

[(4)] the possibility that the absence of an objection was the

result of a reasonable tactical decision" (citation omitted).

Commonwealth v. Bolling, 462 Mass. 440, 452 (2012).

     The first factor, the strength of the Commonwealth's case,

presents a close question.     "Because the defendant was tried

solely on a theory of impaired operation,[11] the Commonwealth was

required to prove beyond a reasonable doubt that alcohol

diminished the defendant's ability to safely operate a motor

vehicle."    Commonwealth v. Gibson, 82 Mass. App. Ct. 834, 837

(2012).     Although the defendant clearly exhibited signs of

intoxication, and evidence that he drove on a sidewalk was




     10The defendant's challenge to the RMV records is based
only on the improper references to his refusals to submit to a
chemical test. However, at retrial, we anticipate that further
redaction will be necessary. See note 4, supra.

     11"As opposed to a per se violation. See G. L. c. 90,
§ 24(1)(a)(1)." Commonwealth v. Gibson, 82 Mass. App. Ct. 834,
837 n.3 (2012).
                                                                     12


sufficient to prove impaired operation, the evidence was not

overwhelming.   The defendant essentially was stopped for taking

a shortcut along the sidewalk to avoid traffic.     See id.

(defendant was stopped "for an essentially technical violation:

running a red light after safely stopping and looking both

ways").   Furthermore, there was evidence that the sidewalk was

wide enough to permit the passage of motor vehicles, and the

presence of parked vehicles on the sidewalk, as depicted in the

photographs introduced by trial counsel, permitted the inference

that the sidewalk was used by drivers as well as pedestrians.

Moreover, Officer Launie testified that he did not observe any

impairment in the defendant's driving as the officer activated

his emergency lights and followed the defendant as he drove down

the sidewalk and into the parking lot.

    In regard to the second and third factors, as we observed

in Gibson, supra at 838, "the error . . . is constitutional in

nature, and is one that our courts have deemed prejudicial."      We

therefore consider the error to be a serious one.    Lastly, as to

the fourth factor, there is no possibility that the absence of

an objection was due to anything but inadvertence.    "In sum,

. . . we 'have a serious doubt whether the result of the trial

might have been different had the error not been made.'"      Id.,

quoting Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).
                                                                  13


    2.   Sufficiency of the evidence.    In order to obtain a

conviction on the charge of operating a motor vehicle after his

license had been suspended for a prior OUI, the Commonwealth was

required to prove, beyond a reasonable doubt, "(1) that the

defendant operated a motor vehicle; (2) that at the time of that

operation the defendant's license was revoked or suspended;

(3) that the license suspension or revocation was pursuant to a

violation of one of the specified statutory sections (including

[OUI] in violation of G. L. c. 90, § 24 [1] [a]); and (4) that

the defendant was notified that his license had been suspended

or revoked" (citation omitted).   Commonwealth v. Oyewole, 470

Mass. 1015, 1016 (2014).   The defendant concedes that the

evidence was sufficient to establish the first three elements.

As to the fourth element, however, the defendant contends that

the Commonwealth failed to satisfy its burden of proof.

    The element of notice can be proved by evidence showing

that the defendant had actual (or constructive) knowledge of the

suspension.    See Commonwealth v. Deramo, 436 Mass. 40, 51-52

(2002) (defendant's actual knowledge of license revocation was

proved by own admission); Commonwealth v. Norman, 87 Mass. App.

Ct. 344, 345 (2015) (defendant's admission at time of stop that

he did not have license, coupled with evidence that RMV had

mailed notice of suspension to defendant's address, deemed

sufficient).   Or, as is more often the case, notice may be
                                                                     14


proved by proof of proper mailing of a notice of suspension by

the RMV.   See Deramo, 436 Mass. at 50-51, and cases cited.    The

Commonwealth need not prove that the defendant in fact received

the notice.   Rather, proof that the RMV properly mailed a notice

is sufficient.   See Commonwealth v. Koney, 421 Mass. 295, 303-

304 (1995), citing Commonwealth v. Crosscup, 369 Mass. 228, 239

(1975) (proper mailing is prima facie evidence of receipt).

    The Commonwealth argues that the evidence establishes the

defendant's actual knowledge that his license was suspended

because (1) he did not produce a license when asked to do so by

Officer Launie, and offered no reason why his girl friend would

have his license; and (2) the docket sheet of his January, 2015,

guilty plea indicates a two-year loss of license, and the

multiple RMV documents showing his license suspension also

contain accurate identifying information about the defendant.

Even viewed in the light most favorable to the Commonwealth,

these facts are not sufficient.   While it is true that the

defendant did not produce a license, he made no admissions.

Contrast Deramo, 436 Mass. at 51-52; Norman, 87 Mass. App. Ct.

at 345-346.   Furthermore, given the decision of the Supreme

Judicial Court in Oyewole, 470 Mass. at 1016, we cannot conclude

that the docket sheet from the defendant's guilty plea to OUI in

January of 2015 is sufficient to establish that the defendant

knew his license was suspended when he was stopped seven months
                                                                    15


later in August.   Here, as in Oyewole, the docket sheet permits

an inference that the defendant was present in court when his

license was suspended, but the Commonwealth offered no evidence

to show that the suspension was communicated to him.12    Contrast

Commonwealth v. Wilson, 90 Mass. App. Ct. 166, 169-170 (2016)

(notice of suspension could be inferred where defendant could

not provide license when he was stopped by State trooper and

evidence showed that, nineteen days before stop, defendant had

admitted to sufficient facts on charge of operating motor

vehicle after license had been suspended).

     Lastly, there was no evidence to prove the RMV's proper

mailing of any of the notices of suspension to the defendant.

There was no testimony from an individual familiar with the

RMV's procedures pertaining to notification by mail.     Contrast

Norman, 87 Mass. App. Ct. at 345 (Commonwealth offered testimony

of RMV branch manager concerning RMV's "system" of providing

notice of license suspension); Commonwealth v. Lopes, 85 Mass.

App. Ct. 341, 351 (2014) (RMV branch manager trained in "how an

individual's license is suspended and how the RMV provides




     12As the court observed in Oyewole, 470 Mass. at 1016 n.3,
a transcript of the plea hearing might have established whether
the defendant was informed of the suspension of his license.
However, no transcript was offered in evidence at trial.
Similarly, it would be a different matter if the docket
reflected that the defendant acknowledged in court that his
license was suspended.
                                                                  16


notification to that individual by mail" testified that notice

was sent to defendant's address by means of letter).    Nor did

the Commonwealth introduce a certification from the RMV that

notice was sent to the defendant.   See Deramo, 436 Mass. at 51.

Compare Commonwealth v. Parenteau, 460 Mass. 1, 6 (2011).

Contrast Commonwealth v. Royal, 89 Mass. App. Ct. 168, 174

(2016).   The Commonwealth, therefore, did not meet its burden of

proving every element of the offense beyond a reasonable doubt.

    Conclusion.    The judgment on the charge of OUI, third

offense, is reversed, and the verdict is set aside.    The

judgment on the charge of operating a motor vehicle after

license suspension as a result of a prior OUI conviction is

reversed, the verdict is set aside, and judgment shall enter for

the defendant on that charge.

                                    So ordered.
