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15-P-475                                            Appeals Court

    ELEANOR CALLAHAN vs. BOARD OF APPEAL ON MOTOR VEHICLE
            LIABILITY POLICIES AND BONDS & another.1


                            No. 15-P-475.

        Suffolk.    February 1, 2016. - September 12, 2016.

              Present:   Cohen, Carhart, & Kinder, 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. Registrar of Motor Vehicles,
     Revocation of license to operate. License. Administrative
     Law, Decision.



     Civil actions commenced in the Superior Court Department on
March 31, 2011, and January 21, 2014.

     After consolidation, the case was heard by Edward P.
Leibensperger, J., on a motion for judgment on the pleadings,
and a motion to dismiss was also heard by him.


     Martin P. Desmery for the plaintiff.
     Robert L. Quinan, Jr., Assistant Attorney General, for the
defendants.




    1
        Registrar of Motor Vehicles.
                                                                   2


    COHEN, J.   The plaintiff sought judicial review of a

decision of the Board of Appeal on Motor Vehicle Liability

Policies and Bonds (board) denying her application for

reinstatement of her driver's license.    On cross motions for

judgment on the pleadings, a judge of the Superior Court ruled

in favor of the board, and the plaintiff appealed to this court.

The plaintiff argues that the board erred in determining that

her 1989 conviction of "driving while ability is impaired," in

violation of the New York State Vehicle Traffic Law (VTL), is

"substantially similar" to a Massachusetts conviction of

operating a motor vehicle while under the influence of

intoxicating liquor (OUI), thereby subjecting her to lifetime

revocation of her driver's license as a result of her subsequent

conviction of motor vehicle homicide while OUI.    The plaintiff

also argues that the board lacked the authority to reconsider an

earlier decision granting her a restricted, hardship license.

For the reasons that follow, we affirm.

    Background.   The relevant facts are drawn from the

administrative record and are not disputed.    On October 30,

1988, the plaintiff was charged in Lewisboro, New York, with

driving while intoxicated per se, pursuant to VTL § 1192.2;

driving while intoxicated, pursuant to VTL § 1192.3; and driving

left of the pavement marking, pursuant to VTL § 1126a.    These

charges were resolved on January 23, 1989, when the plaintiff
                                                                     3


pleaded guilty to the lesser charge of "driving while ability is

impaired" (DWAI), in violation of VTL § 1192.1, and was assessed

a fine of $250.    According to a document entitled "Certificate

of Conviction," issued by the Justice Court in Lewisboro, the

plaintiff's guilty plea to DWAI resulted "in full satisfaction

of all charges."

     On January 6, 1998, while driving under the influence of

alcohol in Boxboro, Massachusetts, the plaintiff's vehicle

struck and pushed a parked motor vehicle, causing it to hit a

passenger who had just stepped out of that vehicle; the

passenger later died of her injuries.   The Boxborough police

promptly filed an "immediate threat complaint" with the

Registrar of Motor Vehicles (registrar), which resulted in the

indefinite suspension of the plaintiff's driver's license.      On

April 6, 1999, the plaintiff pleaded guilty to homicide by motor

vehicle while OUI, in violation of G. L. c. 90, § 24G.    She

received a sentence of two and one-half years in the house of

correction, one year to be served and the balance suspended

during a ten-year probationary term.    Thereafter, in accordance

with G. L. c. 90, § 24(1)(c)(4), as amended through St. 1982, c.

373, § 4,2 the registrar imposed a lifetime revocation of the

plaintiff's driver's license, effective June 7, 1999.


     2
       The plaintiff does not dispute that § 24(1)(c)(4) has been
in effect at all times relevant to this case. Accordingly, any
                                                                     4


    The operative language of § 24(1)(c)(4) is convoluted:

"[N]o new license shall be issued or right to operate be

reinstated by the registrar to any person convicted of a

violation of [OUI] . . . 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."   However, its meaning is not in doubt.    As

explained in Stockman v. Board of Appeal on Motor Vehicle Liab.

Policies & Bonds, 62 Mass. App. Ct. 159 (2004), the statute

prohibits the registrar from reinstating the driving privileges

of any individual with "two convictions of driving while

intoxicated, coupled with a determination by the registrar that

the second commission of that offense ('the action of such

person, in committing the offense of which he was so

subsequently convicted') caused a fatal accident."     Id. at 161.

    After completing probation, the plaintiff applied for

reinstatement of her license.   The registrar denied the

application, and, following a hearing, the board affirmed.     The



confusion resulting from what the Supreme Judicial Court has
characterized as a "clerical error" in St. 2005, c. 122, § 6A,
known as Melanie's Law, is of no concern here. See Commonwealth
v. Maloney, 447 Mass. 577, 584 (2006). See also Burke v. Board
of Appeal on Motor Vehicle Liab. Policies & Bonds, 90 Mass. App.
Ct.     (2016).
                                                                   5


plaintiff then sought review in the Superior Court, pursuant to

G. L. c. 30A, § 14.   The first judge to consider the matter

vacated the board's decision and remanded for further

consideration whether the DWAI guilty plea qualified as a

conviction for purposes of G. L. c. 90, § 24(1)(c)(4), and

whether the board should exercise discretion to modify the

registrar's decision, pursuant to G. L. c. 90, § 28.     After a

remand hearing and a period of nearly one year when the case

remained under advisement, two members of the three-member panel

issued an order dated August 16, 2013, reinstating the

plaintiff's right to operate with restrictions.

    Within a few weeks, however, and before the reinstatement

took effect, the same two members issued a second order, dated

September 11, 2013, withdrawing the prior order and scheduling a

de novo hearing on the merits.   The second order explained that

"one sitting board member was unable to complete deliberations

on this matter," and that "justice requires this matter to be

heard and decided by a full panel."   A different three-member

panel of the board then heard the matter de novo and, in a

decision issued December 18, 2013, determined that the

requirements for lifetime revocation were met because the New

York offense of DWAI was substantially similar to the

Massachusetts offense of OUI and qualified as a prior OUI
                                                                     6


conviction.3   The plaintiff again appealed, and a different

Superior Court judge affirmed the board's decision.

     Discussion.    As both issues presented are questions of law,

our review is de novo; however, we are aided by a thoughtful and

thorough decision of the trial court judge.    After independently

considering the record and the applicable law, we reach the same

result.

     1.   Effect of guilty plea to DWAI.   In assessing the impact

of the plaintiff's New York guilty plea on her licensure in

Massachusetts, we are guided by Bresten v. Board of Appeal on

Motor Vehicle Liab. Policies & Bonds, 76 Mass. App. Ct. 263, 266

(2010) (Bresten).   The court in Bresten held that, pursuant to

G. L. c. 90, § 30B,4 the interstate compact on motor vehicle

convictions, even when an out-of-State conviction of driving

under the influence is denominated or described differently from

the Massachusetts offense of OUI, the registrar must give the


     3
       The board also determined that it had discretion to modify
or annul the registrar's decision, but declined to grant such
relief at that time, because the plaintiff had not shown extreme
hardship and, at the most recent hearing, had admitted to the
occasional use of alcohol. However, the board did state that
the plaintiff was allowed to reapply for relief on or after
January 1, 2015. As no issue is raised as to the propriety of
these aspects of the board's decision, we express no opinion on
them.
     4
       Of particular relevance here is G. L. c. 90,
§ 30B(III)(a)(1) and (2), relating, respectively, to out-of-
State offenses for motor vehicle homicide and driving under the
influence of alcohol or drugs.
                                                                     7


"the same effect to conduct reported as if 'such conduct had

occurred in [Massachusetts],'" so long as the out-of-State

offense is "of a substantially similar nature" to OUI.      Id. at

266.

       The DWAI offense to which the plaintiff pleaded guilty is

codified in VTL § 1192.1, which states: "No person shall operate

a motor vehicle while the person's ability to operate such motor

vehicle is impaired by the consumption of alcohol."    As

recognized by the New York Court of Appeals, the DWAI statute

"does not speak of degrees of impairment; it simply prohibits

the driving of a motor vehicle when the driver's 'ability to

operate such vehicle is impaired.'"    People v. Cruz, 48 N.Y.2d

419, 426 (1979), quoting from VTL § 1192.1.    The statute's

manifest purpose is to promote public safety by defining the

violation as driving a motor vehicle while there is any

alcoholic impairment.

       Likewise, the Massachusetts OUI offense, G. L. c. 90,

§ 24(1)(a)(1), turns on whether the consumption of alcohol

diminished the driver's ability to operate a motor vehicle

safely, Bresten, supra at 268; again, the statute's manifest

purpose is to protect the public by penalizing drivers impaired

to any degree by such consumption.    Under the reasoning of

Bresten, because both statutes require proof that the motor

vehicle operator's ability to operate safely has been affected
                                                                     8


even slightly by alcohol, the New York DWAI offense is

substantially similar to the Massachusetts offense of OUI, and

qualifies as the prior OUI required for the imposition of

lifetime license revocation after a subsequent OUI resulting in

a fatality.   See id. at 268-269.

    The plaintiff attempts to distinguish Bresten on the ground

that, unlike the Colorado offense at issue in that case, the New

York DWAI offense is categorized as a "traffic infraction."      See

VTL § 1193.1(a).   Under VTL § 155, "[a] traffic infraction is

not a crime and the punishment imposed therefor shall not be

deemed for any purpose a penal or criminal punishment. . . ."

Thus, according to the plaintiff, because her guilty plea to

DWAI did not result in a criminal conviction, it is not

substantially similar to OUI and may not serve as a predicate

conviction for purposes of imposing a lifetime license

revocation.

    The plaintiff's argument is not persuasive.    New York's

treatment of the DWAI offense suggests that, regardless of its

label, it is criminal in character.   Prosecutions for DWAI are

generally governed by the rules of criminal law, see People v.

Phinney, 22 N.Y.2d 288, 290 (1968), and the consequences of DWAI

are identified as "criminal penalties."   See VTL § 1193.    These

penalties are not insignificant; they include imprisonment

(albeit for no more than fifteen days), a fine, or both.     See
                                                                    9


VTL § 1193.1(a).   In addition, as was the case here, a charge of

DWAI may be resolved by a plea of guilty and will be reported on

a "Certificate of Conviction."

     Furthermore, the Massachusetts statutes directing the

registrar to rely on out-of-State convictions in enforcing the

Massachusetts licensing laws are not limited to convictions that

are designated as criminal in the State where the offense

occurred.   At the time of the plaintiff's license revocation,

G. L. c. 90, § 24(1)(d) provided that an individual would be

considered "convicted" for purposes of various sections of G. L.

c. 90, § 24(1), if that individual "pleaded guilty or nolo

contendere or was found or adjudged guilty by a court of

competent jurisdiction" (emphasis supplied).   The disposition of

the plaintiff's DWAI charge falls within that definition.5

     Another statute, G. L. c. 90, § 22(c), also requires that,

in certain instances, the registrar must treat an out-of-state

"motor vehicle violation" as if it had taken place in

     5
       Because the plaintiff "pleaded guilty," her reliance on
the case of Souza v. Registrar of Motor Vehicles, 462 Mass. 227
(2012) (Souza), is unavailing. The court in Souza held that an
admission to sufficient facts was not a qualifying conviction
for purposes of imposing a three-year suspension for refusal to
submit to a breathalyzer test, pursuant to G. L. c. 90,
§ 24(1)(f)(1), because an "admission to sufficient facts" was
not a "guilty plea," and § 24(1)(d) did not state that an
individual who admits to sufficient facts would be considered
"convicted." Id. at 233-235. While it does not bear on the
present case, we note that the Legislature subsequently amended
the statute to include the phrase "admits to finding of
sufficient facts." See St. 2012, c. 139, § 98.
                                                                     10


Massachusetts.    As used in that section, the term "motor vehicle

violation" is not restricted to criminal violations; it is

defined as "a violation of law, regulation, by-law, or

ordinance, except a violation related to parking."      Ibid.

Similarly, the interstate compact on motor vehicle convictions

broadly defines conviction to mean "a conviction of any offense

related to the use or operation of a motor vehicle that is

prohibited by state law, municipal ordinance, or administrative

rule or regulation."     G. L. c. 90, § 30B(I)(c).   The compact

does not require that the conviction be for an offense

denominated as criminal.

    In short, whether a DWAI conviction is substantially

similar to an OUI conviction does not turn on whether DWAI is

labeled a criminal offense.     As held in Bresten, supra, it turns

on the nature of the conduct that must be proved to establish

guilt.   Id. at 268-269.

    2.   Withdrawal of prior decision.     It is well-established

that "[i]n the absence of statutory limitations, administrative

agencies generally retain inherent authority to reconsider their

decisions."    Moe v. Sex Offender Registry Bd., 444 Mass. 1009,

1009 (2005).     Here, the stated reason for the withdrawal of the

August 16, 2013, decision reinstating the plaintiff's right to

operate with restrictions was that one of the three members of

the panel was unable to complete deliberations, and justice
                                                                  11


required that the matter be heard and decided by a full panel.

There is nothing in the record to support the plaintiff's

intimation that the stated reason masked some irregularity.     If

anything, the withdrawal of the decision had the salutary effect

of removing any doubt as to whether a decision signed and issued

by only two members of the board was compliant with board

procedures or quorum requirements.   Moreover, even if a two-

member decision was permissible, the seriousness of the issue

presented militated in favor of a decision by a full panel.     In

these circumstances, the order withdrawing the prior decision

and setting the matter down for a de novo hearing was well

within the inherent authority of the board, and was neither

arbitrary nor capricious.

                                     Judgment affirmed.
