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SJC-12466

              COMMONWEALTH     vs.   ERIC A. RICHARDS.



        Suffolk.        May 10, 2018. - September 5, 2018.

   Present:   Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
                          & Kafker, JJ.


Motor Vehicle, License to operate, Operating under the
     influence. Statute, Construction.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on September 26, 2017.

    The case was reported by Lowy, J.


     Robert J. Bender, Assistant District Attorney (Timothy
Ferriter, Assistant District Attorney, also present) for the
Commonwealth.
     Steven M. Vaillancourt (Andrew Sprow also present) for the
defendant.


    KAFKER, J.      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
                                                                        2


was subject to a lifetime suspension.      The defendant was later

found 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, 421
                                                                      3


Mass. 415, 423 (1995).   Toward this end, an individual who

drives on a public road is "deemed to have consented to submit

to a chemical test or analysis of his breath or blood in the

event that he is arrested for operating a motor vehicle while

under the influence of intoxicating liquor."    G. L. c. 90,

§ 24 (1) (f) (1).   Failing or refusing to take such a test

results in license suspension.    Id.   Such "suspension serves to

deter persons from driving while intoxicated; it effectuates the

Commonwealth's interest in obtaining reliable and relevant

evidence by inducing suspected drunk drivers to take the breath

test; and it promotes safety on the highways by summary removal

of dangerous drivers."    Luk, supra at 425.   See Mackey v.

Montrym, 443 U.S. 1, 18 (1979) (same).

    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.       G. L.

c. 90, § 24 (1) (c) (2).    Individuals with two prior OUI

convictions face an eight-year suspension.     G. L. c. 90,
                                                                        4


§ 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.   Id.    Individuals with one prior OUI conviction face a

three-year suspension.      Id.   Individuals with two prior OUI

convictions face a five-year suspension.       Id.   Individuals with

three prior OUI convictions face a lifetime suspension.        Id.

Unlike nonlifetime suspensions imposed pursuant to § 24 (1) (c),

if an individual's license is suspended for refusing to take the
                                                                       5


breathalyzer, the individual is not permitted to apply for a

hardship license.       See G. L. c. 90, § 24 (1) (f) (1).1

       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."

Id.    On appeal, we must determine whether the statute authorizes

a defendant who was acquitted to make belated, additional

motions to restore his or her license after his or her immediate

motion is denied.       For the reasons discussed, we conclude that

it does not.

       b.    Facts.   On May 6, 2010, the defendant was arrested for

OUI.       He had three prior OUI convictions from 1989, 1996, and




       Where a defendant refuses the breathalyzer and is later
       1

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).
                                                                       6


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

     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


     2 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. Id.
                                                                    7


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

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."


     3 Pursuant to our decision in Commonwealth v. Bauer, 455
Mass. 497, 499-500 (2009), "litigants may obtain review of
§ 24 (1) (f) (1) license restoration orders entered in the
District Court by means of a certiorari action brought in the
Superior Court." See G. L. c. 249, § 4.

     4 The stated reason for the dismissal was listed as
"[b]rief/appendix not received or status report not filed."
                                                                       8


    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.
                                                                     9


    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 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 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., 478 Mass. 767,

775 (2018).   "The effect given to statutory language should be

consistent with its plain language."    Retirement Bd. of Stoneham

v. Contributory Retirement Appeal Bd., 476 Mass. 130, 135

(2016).   "Where the language is clear and unambiguous, it is to
                                                                   10


be given its 'ordinary meaning.'"     Millis Pub. Sch., supra,

quoting Commonwealth v. Mogelinksi, 466 Mass. 627, 633 (2013).

     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 id.   The

statute also requires such motion to be made "before the court

which took final action on the charges."     Id.   Thus, by its

plain language, the statutory provision indicates that such

motions are to be made and heard immediately after the

defendant's acquittal, by the court which presided over the OUI

proceedings, based on the defendant's circumstances at the time

of the acquittal, not years later.5

     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


     5 Those circumstances would include his prior driving
record, and other evidence of alcohol abuse.
                                                                  11


for the determination whether restoration "would likely endanger

the public safety" to be made on the basis of the facts as they

exist at 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, 455 Mass.

740, 744 (2010) (language of statute is primary source of

insight into legislative intent).

    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, 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
                                                                   12


omitted).   Custody of Victoria, 473 Mass. 64, 73 (2015).   When

the language is read in context, it is clear that the

Legislature intended the motion for restoration to be a very

limited, time-defined exception to the general rules of

suspension for refusal.   The preceding phrase in the statute

provides that, for defendants whose license has been suspended

for refusing the breathalyzer, "[n]o license or right to operate

shall be restored under any circumstances" (emphasis added).

G. L. c. 90, § 24 (1) (f) (1).   Section 24 (1) (f) (1) also

explicitly provides that "no restricted or hardship permits

shall be issued during the suspension period imposed by [this

section]" (emphasis added).   These categorical prohibitions

apply to all defendants who refused to take a breathalyzer, not

just those with multiple OUI convictions.

    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:
                                                                  13


     "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




     6 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 id.
                                                                    14


    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, 462 Mass. 227, 232 (2012) (use of language in one

subsection of § 24 but not another is significant).

    This understanding of the statutory language is also

consistent 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.   See St. 2005, c. 122, § 9.   Prior to the passage of

Melanie's Law, refusing to take a breathalyzer could result in,

at most, an eighteen-month license suspension.    See 2005 House
                                                                   15


Doc. No. 4099.7   The Governor, who filed the original

legislation, noted that "[t]oo often experienced drunk drivers

refuse to cooperate with arresting officers, because they know

that their refusal will significantly increase their changes of

acquittal."   2005 House Doc. No. 4453.   The changes to the

refusal suspension scheme were thus designed to "create an

increased incentive to submit to [breathalyzer or field

sobriety] tests."   See 2005 House Doc. No. 4099.

     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, 443 U.S. at 19 ("A state plainly has the right to offer

incentives for taking a test that provides the most reliable

form of evidence of intoxication for use in subsequent


     7 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.
                                                                  16


proceedings").   The avenue for relief under § 24 (1) (f) (1) is

therefore much narrower and shorter.

     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 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.

     3.   Conclusion.   For the reasons discussed, the decision

granting the defendant's motion for restoration of his driver's

license is reversed.

                                    So ordered.




     8 We also note that, even under § 24 (1) (c), defendants
subject to a lifetime suspension are not eligible to apply for a
hardship license.
