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15-P-117                                            Appeals Court

JOSEPH L. BURKE    vs. BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY
                   POLICIES AND BONDS & another.1


                            No. 15-P-117.

        Suffolk.     March 16, 2016. - September 12, 2016.

              Present:   Cohen, Katzmann, & Blake, JJ.


Board of Appeal on Motor Vehicle Liability Policies and Bonds.
     Motor Vehicle, Board of Appeal on Motor Vehicle Liability
     Policies and Bonds, Operating under the influence, License
     to operate, Homicide. License. Registrar of Motor
     Vehicles, Revocation of license to operate. Administrative
     Law, Agency's interpretation of statute. Statute,
     Construction, Retroactive application.



     Civil action commenced in the Superior Court Department on
December 9, 2013.

     The case was heard by Edward P. Leibensperger, J., on a
motion for judgment on the pleadings, and a motion for
reconsideration was considered by him.


     Brian K. Wells for the plaintiff.
     David R. Marks, Assistant Attorney General, for the
defendants.




    1
        Registry of Motor Vehicles.
                                                                      2


     KATZMANN, J.     In this appeal, we are again asked to

consider whether a lifetime suspension is appropriate for a

driver who, after having committed an operating under the

influence (OUI) offense, causes a fatality in the course of a

second OUI offense.    Plaintiff Joseph Burke appeals from a

judgment of the Superior Court upholding a decision of the

defendant Board of Appeal on Motor Vehicle Liability Policies

and Bonds (Board) that affirmed the denial by the Registrar of

Motor Vehicles (registrar) of Burke's application for

reinstatement of his driver's license pursuant to G. L. c. 90,

§ 24(1)(c)(4), as amended through St. 1982, c. 373, § 4, as well

as the registrar's permanent revocation of that license, on the

basis that Burke's second drunk driving offense resulted in a

fatality.2   We affirm.

     Background.    On February 27, 2000, Burke, was arrested for

OUI after a motor vehicle accident in Rehoboth.     On May 1, 2000,

Burke admitted to sufficient facts for a finding of guilty of

OUI in connection with the February incident but received the

benefit of a continuance without a finding of guilty (CWOF) for

one year until May 1, 2001, during which time he was placed on




     2
       Burke brought his action in Superior Court pursuant to
G. L. c. 30A, § 14, and then moved for judgment on the
pleadings, which was denied. The judge also denied Burke's
motion for reconsideration.
                                                                   3


probation.    The terms of his probation included a 180-day loss

of license and an assignment to an alcohol education program.

     On August 6, 2000, while still on probation with his

license suspended as a result of the incident the previous

February, Burke drove a motor vehicle when intoxicated, and was

responsible for a motor vehicle accident in Milton in which his

passenger, Patrick Connolly, sustained fatal injuries.3    On

December 28, 2000, Burke pleaded guilty to manslaughter; OUI,

second offense; and operating after his license had been

suspended for OUI in connection with the fatal accident in

August, 2000.   As part of the probationary portion of his

sentence, Burke was required to wait ten years after his release

from incarceration before he could apply to have his license

reinstated.

     On January 11, 2001, after his guilty plea in the fatal

accident, the CWOF on Burke's prior offense was revoked and a

guilty conviction and sentence were imposed.



     3
       As found by the board, Burke lost control of the motor
vehicle while driving home from a party; the car traveled across
northbound and southbound lanes of a Milton road, left the road,
rolled over several times, and struck a tree and numerous
boulders before stopping. Shortly after the accident, the
police "observed that Burke's speech was slurred, his eyes were
red and glassy, and there was a strong odor of alcohol emanating
from his breath. Burke stated that he was drunk and that the
officer needed to arrest him." The police report stated that
the ethyl alcohol level was 215, which converted to 0.18% blood
alcohol content.
                                                                   4


     Burke applied to have his driver's license reinstated in

August, 2013.   Burke was initially notified that his license had

been revoked for fifteen years.   After Burke appealed the

fifteen-year revocation, and pursuant to further review of his

file by the Registry of Motor Vehicles (RMV), the registrar

ultimately notified Burke that he was subject to a lifetime

revocation because of his manslaughter conviction.   The board

affirmed, finding after a November 7, 2013, hearing "that the

[r]egistrar's order revoking Burke's license for life for a

conviction of manslaughter in which alcohol was involved, with a

prior [OUI] conviction is legal and proper, the statute does not

contain a statutory provision for granting a hardship and it is

not appropriate to terminate the license revocation."4

     Discussion.   Burke raises a number of arguments on appeal

that can be broadly placed into two categories.   The first is

that the proper construction of G. L. c. 90, § 24(1)(c)(4),

provides for only a ten-year license suspension to be imposed on

a driver's first fatal drunk driving accident regardless of

whether that driver was previously convicted of OUI and that a

driver must have been involved in two separate OUIs with a


     4
       The board did "credit[] Burke's testimony that he is now
sober and a changed man. He expressed remorse for his actions.
He has strong family support. However, . . . [a] multiple-[OUI]
offender who caused the death of someone while operating under
the influence of liquor is a significant threat to public
safety."
                                                                     5


fatality before becoming subject to lifetime license revocation.

Second, he raises a number of arguments challenging the

application of § 24(1)(c)(4) in his case.

     1.   Standard of review.   "Appellate review under G. L.

c. 30A, § 14, is limited to determining whether the agency's

decision was unsupported by substantial evidence, arbitrary and

capricious, or otherwise based on an error of law."     Haverhill

Ret. Sys. v. Contributory Ret. Appeal Bd., 82 Mass. App. Ct.

129, 131 (2012) (quotation and citation omitted).    However, we

review questions of statutory interpretation de novo, giving

substantial deference to a reasonable interpretation of a

statute by the administrative agency charged with its

administration and enforcement.    Anawan Ins. Agency, Inc. v.

Division of Ins., 459 Mass. 592, 596 (2011).    As the party

challenging an agency decision under G. L. c. 30A, § 14, Burke

has the burden of proof to demonstrate the invalidity of the

administrative determination.     Scheffler v. Board of Appeal on

Motor Vehicle Liab. Policies & Bonds, 84 Mass. App. Ct. 904, 906

(2013).

     2.   Statutory interpretation.   Burke contends that a proper

analysis of the statute and its history compels the conclusion

that a lifetime suspension under § 24(1)(c)(4)5 requires two


     5
       Section 24(1)(c)(4) provides: "[N]o new license shall be
issued or right to operate be reinstated by the registrar to any
                                                                   6


fatal accidents and that the board erroneously interpreted the

statute to impose a lifetime suspension where a second OUI

offense resulted in a fatality but no prior OUI offense did.

"Because the interpretive question here is purely a legal one,

and because the duty of statutory interpretation rests

ultimately with the courts, we review the board's interpretation

de novo."   Souza v. Registrar of Motor Vehicles, 462 Mass. 227,

229-230 (2012) (Souza) (citation, quotation marks, and textual

alteration omitted).   In Stockman v. Board of Appeal on Motor

Vehicle Liab. Policies & Bonds, 62 Mass. App. Ct. 159, 161

(2004) (Stockman), we rejected the very same argument made by

Burke here.   Stockman is indistinguishable and controlling.6




person convicted of a violation of subparagraph (1) of paragraph
(a) until ten years after the date of conviction in case the
registrar determines upon investigation and after hearing that
the action of the person so convicted in committing such offense
caused an accident resulting in the death of another, nor at any
time after a subsequent conviction of such an offense, whenever
committed, in case the registrar determines in the manner
aforesaid that the action of such person, in committing the
offense of which he was so subsequently convicted, caused an
accident resulting in the death of another."
     6
       Burke relies on various historical materials that discuss
§ 24(1)(c)(4). However, the construction in Stockman is based
on the clear and unambiguous text of the statute. Furthermore,
the bulk of Burke's materials simply indicates that the
Legislature had considered, but ultimately decided against, a
lifetime revocation for even a first-time OUI offender who
causes a fatality. These materials are not inconsistent with a
determination that a lifetime suspension is appropriate for a
driver who, after having committed an OUI, causes a fatality in
the course of a second OUI offense.
                                                                    7


    3.   Application of lifetime revocation to Burke.   Having

concluded that the registrar's interpretation of § 24(1)(c)(4)

is correct, the question remains whether there was error in its

application to Burke.   In this regard, Burke contends that he is

not subject to the lifetime revocation because the CWOF on his

first OUI offense that was still in effect when he was convicted

in connection with the fatal accident is not a sufficient

predicate conviction, that the board's actions constituted

impermissible retroactive application of a harsher

interpretation of § 24(1)(c)(4), that the thirteen-year delay

and repudiation of previous notices violates his due process

rights, and that he detrimentally relied on indications that his

suspension would not exceed ten years.

    a.   Predicate conviction.   In his complaint and the

proceedings below, Burke contended that § 24(l)(c)(4) had been

repealed by "Melanie's Law" (enacted to protect the public from

drunk drivers) and that the board had improperly applied a

repealed statute to him that was no longer in effect.   In

rejecting this claim, the motion judge cited Commonwealth v.

Maloney, 447 Mass. 577, 584 (2006) (Maloney), for the

proposition that the deletion of § 24(l)(c)(4) by the 2005

statute known as Melanie's Law, St. 2005, c. 122, § 6A, was "an

apparent clerical error" and that courts will accordingly "read

§ 6A of Melanie's Law as replacing G. L. c. 90, § 24(4), not
                                                                   8


§ 24(l)(c)(4)."7   On appeal, Burke does not quarrel with this

reasoning or otherwise press his argument that the Legislature

inadvertently deleted or repealed § 24(1)(c)(4) when it enacted

Melanie's Law in 2005.   We thus proceed with the understanding

that § 24(1)(c)(4) continues in effect.8

     As he did below, Burke notes on appeal that his conviction

for the earlier OUI (from the February 27, 2000, accident) was

not entered until January 11, 2001, when the CWOF was vacated

and replaced with a conviction.9   Because his conviction was


     7
       In Maloney, supra at 584, the Supreme Judicial Court
stated: "[D]ue to an apparent clerical error, St. 2005, c. 122,
§ 6A, states that it replaces G. L. c. 90, § 24(1)(c)(4), a
completely different provision of the statute concerning the
reinstatement of licenses by the registrar of motor vehicles,
rather than G. L. c. 90, § 24(4)," which was a provision
governing proof of prior OUI convictions. "Where, as here, a
statute contains an obvious clerical error, a court may depart
from the statute's literal meaning in order to effectuate
legislative intent. Accordingly, we read § 6A of Melanie's Law
as replacing G. L. c. 90, § 24(4), not [G. L. c. 90,]
§ 24(1)(c)(4)." Ibid. (declining to "infer the Legislature's
ratification of this error from the mere fact that it has yet to
be corrected") (citations omitted).
     8
       The question posed in the case before us with respect to
§ 24(1)(c)(4) is not precisely the same as that addressed in
Maloney as, inter alia, here the "apparent clerical error"
completely deleted the text of the provision at issue from the
books as opposed to leaving two somewhat conflicting versions of
the same provision. See Maloney, supra at 584.
     9
       In Commonwealth v. Doe, 473 Mass. 76, 81-82 (2015), the
Supreme Judicial Court explained the progression from CWOF to
conviction thusly:

     "'An admission to sufficient facts followed by a
     continuance without a finding is not a "conviction"
                                                                   9


entered after his December 28, 2000, manslaughter conviction for

the fatal August 6, 2000, accident, he contends on appeal, as he

did below, that the conviction for manslaughter by OUI was not a

"subsequent conviction" for the purposes of § 24(1)(c)(4), and

that the board erred in imposing a lifetime revocation of his

driver's license.   In his thoughtful memorandum, the motion

judge agreed with the board's rejection of this claim, noting,

inter alia, that where, consistent with Stockman, supra, the

manifest purpose of the statute is to remove from the road a

person who causes a death by an OUI after the commission of an

earlier OUI, Burke's interpretation contravenes the

Legislature's goal and is unreasonable.   We need not resolve

this argument because we determine that at the time of his


    under Massachusetts law.' Commonwealth v. Villalobos,
    437 Mass. 797, 802 (2002). Rather, where a judge
    continues a case without a finding, a guilty finding
    is not entered and the case is 'continued without a
    finding to a specific date thereupon to be dismissed,
    such continuance conditioned upon compliance with
    specific terms and conditions or that the defendant be
    placed on probation.' G. L. c. 278, § 18. See
    Commonwealth v. Mosher, 455 Mass. 811, 822 (2010) ('A
    continuance without a finding closely resembles a
    sentence of straight probation, except that the former
    is not a "conviction" under State law if the defendant
    successfully completes the period of probation or
    complies with the terms and conditions set by a
    judge'). Although a judge may enter a guilty finding
    in a case continued without a finding after a
    defendant fails to comply with the terms of probation,
    a person charged with a[n]. . . offense and granted a
    continuance without a finding is not convicted of the
    . . . offense unless and until there is such a guilty
    finding."
                                                                   10


application in 2013 for reinstatement of his license, the board

was required to impose a lifetime revocation.

    Pertinent to our analysis of Burke's claims is that

§ 24(1)(c)(4) was effectively modified by St. 2012, c. 139,

§ 98, which, after the opinion in the Souza case, supra, added

the words "or admits to a finding of sufficient facts" into the

definition of "convicted" in G. L. c. 90, § 24(1)(d).    As a

result, the admission to sufficient facts that Burke made in

connection with the CWOF he initially received for his first OUI

offense, which had not yet been converted into a guilty finding

at the time of his conviction on the second OUI offense, is now,

for purposes of § 24(1)(c)(4), a "conviction" -- and properly

could be so classified at the time of Burke's application for

reinstatement in 2013.     Compare Souza, 462 Mass. at 230-235

(prior to the 2012 amendments, an admission to sufficient facts

followed by a CWOF was not a "conviction" under § 24[1][d],

which defines the term "convicted" for purposes of all the

subsections of § 24[1]).

    b.   Retroactive application.    The "purpose [of license

revocation] is to protect the public from future harm by

depriving the unsafe or irresponsible driver of his or her

authority to continue to operate a motor vehicle.    Because its

main purpose is public safety rather than punishment, revocation

of a driver's license is properly characterized as nonpunitive."
                                                                     11


Luk v. Commonwealth, 421 Mass. 415, 426-427 (1995) (Luk).      See

Powers v. Commonwealth, 426 Mass. 534, 540 (1998) (Powers)

(board's "administrative license suspension and revocation

sanctions under G. L. c. 90 are nonpunitive").    When Burke

sought reinstatement of his license in 2013, the registrar was

obligated to apply the statute as it was in effect at the time

Burke made his request.   Application of the statute in this

manner does not raise ex post facto concerns, as "civil remedies

are not subject to the prohibition against ex post facto laws"

and "the Supreme Judicial Court, on numerous occasions, has

ruled that statutes imposing conditions on eligibility for

continued licensure are remedial and nonpunitive in nature."

Gordon v. Registry of Motor Vehicles, 75 Mass. App. Ct. 47, 50,

51-52 (2009) (Gordon).    In short, where § 24(1)(c)(4) remains in

force, there is no question here of retroactive application of

that statute by the board.   The application was contemporaneous,

triggered by Burke's request for reinstatement of his right to

operate.   Cf. Gordon, supra at 56 (application of an ignition

interlock requirement enacted subsequent to the plaintiff's

convictions that made him subject to the requirement "was not

retroactive as the event triggering the requirement was

[plaintiff's] decision to seek the reinstatement of his license,

which occurred after the statute went into effect, and not his

prior OUI conviction").   Section 24(1)(c)(4) is a prohibition on
                                                                     12


the issuance of new licenses and the reinstatement of the right

to operate by the registrar.    While the registrar can act

proactively to notify drivers of lifetime revocations under the

statute prior to the motorist taking affirmative steps for

reinstatement, it is apparent that an application for a license

or reinstatement of a right to operate requires the registrar to

act at that time to determine whether she shall or shall not

grant the request.    In sum, at the time of Burke's application

for reinstatement in 2013, the registrar was required to impose

the lifetime revocation in accordance with Stockman's

interpretation of the statute and the 2012 amendment to

§ 24(1)(d).10

     c.    Due process and detrimental reliance.   On November 28,

2003, the registrar notified Burke in writing that his driver's

license was being revoked for two years as a result of (1) OUI

on August 6, 2000; (2) driving on a suspended license on August,

6, 2000; and (3) the OUI offense he committed in February, 2000,

for which he received a CWOF and was assigned to an alcohol

program.    Burke's conviction of manslaughter was not noted.   On

     10
       There is also no merit to Burke's contention that the
registrar's interpretation of § 24(1)(c)(4) has become more
harsh since his conviction. Even prior to Burke's fatal
accident, the registrar imposed lifetime suspensions for
similarly situated drivers. See, e.g., Callahan v. Board of
Appeal on Motor Vehicle Liab. Policies & Bonds, 90 Mass. App.
Ct.     (2016) (lifetime suspension under § 24[1][c][4] imposed
in June, 1999, where the driver was twice convicted of OUI and a
second OUI resulted in a fatality).
                                                                   13


December 6, 2005, the registrar notified Burke that he was now

eligible to have his right to operate a motor vehicle

reinstated.    Burke claims that he detrimentally relied on these

previous communications from the RMV and the terms of his plea

agreement (requiring him to wait only the ten years of his

probationary term before applying to have his license

reinstated) in developing the settled expectation that he would

be eligible to drive again after those ten years had elapsed.

In the context of that detrimental reliance, Burke claims he was

prejudiced by the registrar's delay in implementing the lifetime

revocation.

       But Burke cannot show that the delay between the incident

and the lifetime suspension in 2013 actually unfairly prejudiced

him.    His license was already suspended when he caused the fatal

accident in August, 2000, and remained suspended for various

reasons until August, 2013.    Because the terms of § 24(1)(c)(4)

are mandatory, the registrar could not have lawfully reinstated

Burke's license in 2013.    Burke's unsettled expectations11 cannot

change the registrar's statutory obligation to impose the




       11
       We note that, based on the brief duration of the
suspension (two years) and the absence of any reference to
manslaughter or homicide charges in the 2003 notice, Burke
either knew or should have known that a mistake had been made
and that the suspension he received then, which expired in 2005,
did not reflect the fatality his drunk driving had caused.
                                                                   14


lifetime suspension at the time that Burke applied for

reinstatement.

    For this same reason, Burke also cannot show that the

registrar acted arbitrarily or capriciously or violated his

substantive due process rights.     "Substantive due process

prohibits the government from engaging in conduct that shocks

the conscience or interferes with rights implicit in the concept

of ordered liberty."    Gordon, supra at 55 (quotations and

citations omitted).    See also Rumford Pharmacy, Inc. v. East

Providence, 970 F.2d 996, 1000 n.8 (1st Cir. 1992) ("A complaint

pleads a substantive due process violation by a local

administrative agency only if the facts alleged are shocking or

violative of universal standards of decency" [quotation and

citation omitted]).    In addition, because the deprivation of a

driver's license implicates no fundamental rights, the due

process inquiry is relaxed.    Gordon, supra at 55.   "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, 421 Mass. at 423

(citation omitted).    The board's compliance with the

Legislature's comprehensive regulatory scheme cannot be
                                                                   15


considered arbitrary or capricious, and it certainly does not

shock the conscience.

    Although Burke does not characterize them as such, many of

his arguments essentially seek to estop the registrar from

departing from the promises Burke believes were implied in his

plea agreement and the 2003 and 2005 notifications.   These

arguments fail.   "Generally, the principles of estoppel are not

applicable against the government in connection with its

exercise of public duties, particularly when the government is

acting in the public interest and safety, as its duly

constituted officials see that interest. . . .   Governmental

officials need to be free to act in accordance with their

constitutional and statutory authority in such manner as they

think is in the public interest without encumbrance from earlier

collateral decisions which may have suggested a different

tendency so far as the public issue is concerned."    Municipal

Light Co. of Ashburnham v. Commonwealth, 34 Mass. App. Ct. 162,

167, cert. denied, 510 U.S. 866 (1993).   For the reasons we have

stated, the registrar here was acting pursuant to her statutory

mandate and in the public interest and safety.

    Burke has also failed to show that anything in his plea

agreement would preclude the lifetime revocation of his license.

In Commonwealth v. Cruz, 62 Mass. App. Ct. 610 (2004), we found

that even "[p]utting aside the settled proposition that
                                                                  16


Massachusetts courts are reluctant to apply equitable estoppel

against the Commonwealth," the Commonwealth's pursuit of civil

commitment for a convicted sex offender was not a breach of the

offender's plea agreement where the agreement did not expressly

prohibit such proceedings subsequent to the offender's

completion of his sentence and, inter alia, "civil commitment is

a collateral consequence of a criminal conviction which need not

be addressed at the plea hearing in order for the plea to be

valid."   Id. at 613.   Similar reasoning applies to the

collateral consequence of the registrar's revocation of Burke's

driving privilege here where, as has been noted, it is

established that "administrative license suspension and

revocation sanctions under G. L. c. 90 are nonpunitive."

Powers, 426 Mass. at 540.   In rejecting the double jeopardy

challenge in Powers, the Supreme Judicial Court made it clear

that license revocations by the registrar are independent of the

criminal charges pursued by the Commonwealth for the same

incident.

    Finally, Burke has also failed to make out a violation of

his procedural due process rights.   See Gillespie v.

Northampton, 460 Mass. 148, 156-158 (2011).

    Conclusion.    Where the statutory construction applied by

the board was not only reasonable but required by our case law

and was applied contemporaneously with his application for
                                                               17


reinstatement, Burke cannot meet his burden of demonstrating the

invalidity of the administrative determination.

                                   Judgment affirmed.
