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15-P-1207                                               Appeals Court

                 COMMONWEALTH     vs.   WILLIAM A. LOPEZ.


                               No. 15-P-1207.

            Bristol.       February 28, 2017. - May 10, 2017.

               Present:    Wolohojian, Milkey, & Shin, JJ.


       Moped.      Motor Vehicle, Moped, License to operate.


     Complaint received and sworn to in the Fall River Division
of the District Court Department on October 22, 2013.

    The case was heard by Cynthia M. Brackett, J.

     Kelly M. Costa for the defendant.
     Brenna C. Ferrick, Assistant District Attorney, for the
Commonwealth.


    MILKEY, J.         For operating a moped while his driver's

license was suspended, the defendant was charged with violating

G. L. c. 90, § 23, as a subsequent offense.        After a bench trial

in District Court, he was found guilty of the underlying

offense, and he then pleaded guilty to the subsequent offense

portion.     The judge sentenced him to ninety days in a house of

correction.     On appeal, the defendant argues that although his
                                                                    2


operating the moped with a suspended license may have been a

violation of G. L. c. 90, § 1B (which allows for fines but no

incarceration), as a matter of law, it cannot be a violation of

G. L. c. 90, § 23.   Because we agree, we reverse his conviction.

     Background.   It is undisputed that the defendant was

driving his moped while his driver's license was suspended.     The

factual dispute at trial was whether the moped met the statutory

definition of a "motorized bicycle" (as the defendant

maintained) or whether instead it was a "motorcycle" (as the

Commonwealth maintained).   See G. L. c. 90, § 1, as amended by

St. 1992, c. 286, § 153 (definitions).   This distinction

potentially mattered because the defendant was charged with

violating G. L. c. 90, § 23, as amended by St. 2009, c. 27,

§ 67, which, by its express terms, applies to "motor vehicles."

Motor vehicles, in turn, are defined to include motorcycles but

to exclude motorized bicycles.   G. L. c. 90, § 1.

     Whether a motorized two-wheeled vehicle qualifies as a

motorized bicycle generally depends on the size of its engine,

the nature of its transmission, and the maximum speed the

vehicle is capable of achieving.   G. L. c. 90, § 1 (definition

of motorized bicycle).1   Based on the evidence adduced at trial,


     1
       A "pedal bicycle which has a helper motor" automatically
qualifies as a motorized bicycle. G. L. c. 90, § 1. A "non-
pedal bicycle" with a motor qualifies if the motor has "a
cylinder capacity not exceeding fifty cubic centimeters, [the
                                                                    3


the judge accepted the defendant's position that his moped

qualified as a motorized bicycle, and the Commonwealth has

abandoned any argument to the contrary.

    With the taxonomic issue resolved and other material facts

uncontested, the remaining dispute before the trial judge was

one of law:   whether one operating a motorized bicycle while his

license was suspended can violate G. L. c. 90, § 23, even though

that statute expressly applies only to motor vehicles.       The

transcript of the trial reveals that the judge thoughtfully

wrestled with that question.     Based on her reading of our

decision in Commonwealth v. Griswold, 17 Mass. App. Ct. 461, 462

(1984), the judge concluded that the operator of a motorized

bicycle can violate § 23.     With the defendant's license

suspension and his operation of the moped established, the judge

found him guilty.

    Discussion.     Although § 23 does not by its terms apply to

motorized bicycles, it must be read in conjunction with G. L.

c. 90, § 1B, the statute governing "[t]he operation of

'motorized bicycles' on the public ways in the Commonwealth."

Griswold, supra at 461.     That "statute establishes minimum age

and licensing standards to insure that operators 'are familiar

with rules of the road and the safe operation of the vehicle.'"


bicycle has] an automatic transmission, and [the bicycle] is
capable of a maximum speed of no more than thirty miles per
hour." Ibid.
                                                                    4


Id. at 462, quoting from Weiss, The Regulation of Mopeds:     A

Legislative Proposal, 13 New Eng. L. Rev. 303, 320-322 (1977).

It also prohibits the operation of a motorized bicycle "on any

way by any person not possessing a valid driver's license or

learner's permit."    G. L. c. 90, § 1B, as amended by St. 1989,

c. 341, § 61.    Anyone who violates that licensing provision, or

who otherwise violates § 1B, is subject to specified fines that

escalate for subsequent offenses.2

     Section 1B sets forth a limited number of operational

requirements particular to motorized bicycles.3     Beyond that,

§ 1B does not specify the operational requirements to which

operators of motorized bicycles will be subject but, instead,

generally states that people operating a motorized bicycle on a

public way "shall be subject to the traffic laws and regulations




     2
         Specifically, G. L. c. 90, § 1B, states:

     "A person convicted of a violation of this section shall be
     punished by a fine of not more than twenty-five dollars for
     the first offense, not less than twenty-five nor more than
     fifty dollars for a second offense, and not less than fifty
     nor more than one hundred dollars for subsequent offenses
     committed."
     3
       A motorized bicycle cannot be operated "at a speed in
excess of twenty-five miles per hour," or on "limited access or
express state highways where signs specifically prohibiting
bicycles have been posted." G. L. c. 90, § 1B. In addition,
anyone riding on a motorized bicycle is required to use
"protective headgear" in accordance with mandated safety
standards. Ibid.
                                                                     5


of the [C]ommonwealth."4   G. L. c. 90, § 1B.    It is the

significance of this cross-reference that is at issue in this

case.

     In Griswold, we faced the question whether the operator of

a motorized bicycle could be prosecuted for operating under the

influence of alcohol in violation of G. L. c. 90, § 24(1)(a).

We concluded that even though "motor vehicle" is defined to

exclude motorized bicycles, the language in § 1B stating that

operators of motorized bicycles are "subject to the traffic laws

and regulations of the [C]ommonwealth" renders them subject to

laws governing the operation of motor vehicles on public ways,

including the sanctions applicable to those who violate such

laws.    Griswold, 17 Mass. App. Ct. at 462.    A contrary

interpretation would have meant that the defendant there could

have avoided sanctions for operating under the influence of

alcohol.    We reasoned that such a "result would violate the rule

of statutory construction that 'a statute should be construed in

a fashion which promotes its purpose and renders it an effectual

piece of legislation in harmony with common sense and sound

reason.'"   Ibid., quoting from Worcester Vocational Teachers

Assn. v. Worcester, 13 Mass. App. Ct. 1, 7-8 (1982).

     4
       The statute includes some specific exceptions to this
general requirement. For example, an operator of a motorized
bicycle may signal "his intention to stop or turn" by using
either hand. G. L. c. 90, § 1B. None of the stated exceptions
apply in the case before us.
                                                                     6


     The question we face in the case before us is whether the

§ 23 prohibition on operating a motor vehicle with a suspended

license likewise is a "traffic law or regulation" for purposes

of G. L. c. 90, § 1B.   The Commonwealth's argument that it is a

traffic law is not without some force.   After all, one cannot

violate § 23 without operating a vehicle on a public way.

However, the contrary interpretation also has force.5    A traffic

law or regulation readily can be understood as one that governs

how vehicles are operated.   See Black's Law Dictionary 1726

(10th ed. 2014) (defining "traffic regulation" as "[a]

prescribed rule of conduct for traffic; a rule intended to

promote the orderly and safe flow of traffic").   Section 23 does

not regulate the manner in which vehicles are operated; instead,

it addresses the threshold question whether the driver can

operate a vehicle at all.6   Indeed, Griswold, 17 Mass. App. Ct.


     5
       The Commonwealth argues that because the Legislature has
twice amended § 1B since 1984 without material change, we should
presume that it accepted our interpretation of the statute in
Griswold. See Commonwealth v. Rivera, 445 Mass. 119, 128 (2005)
("when a statute after having been construed by the courts is
re-enacted without material change, the Legislature are presumed
to have adopted the judicial construction put upon it"
[quotation omitted]). However, this begs the question of how
the holding in Griswold applies to the case before us. For the
reasons we explain, we respectfully disagree with the judge that
Griswold compels us to accept the Commonwealth's interpretation
of the statute.
     6
       By comparison, under G. L. c. 90, § 24(1)(a), the statute
at issue in Griswold, the Commonwealth must prove that the
defendant was operating the vehicle "under the influence" of
                                                                   7


at 462, itself appears to draw a distinction between licensing

requirements and operational requirements.

     Also of significance is the fact that operating a motorized

bicycle with a suspended license would constitute an express

violation of § 1B (as the operation of such a vehicle "by any

person not possessing a valid driver's license or learner's

permit").   The Legislature's decision to expressly criminalize

such conduct in § 1B, and to establish specific, low-level

penalties for that conduct, further suggests that the

Legislature did not intend indirectly to make it an additional

crime under § 23.7   Moreover, this means that such conduct is

subject to punishment without our needing to interpret "traffic

laws and regulations" expansively.   Thus, unlike in Griswold,




alcohol, that is, that alcohol "diminished the defendant's
capacity to drive safely." Commonwealth v. Tynes, 400 Mass.
369, 374-375 (1987). Thus, Griswold involved a statute that
directly implicated the operation of the vehicle.
     7
       To be clear, we emphasize that we are not saying that the
Legislature was precluded from criminalizing such conduct under
both sections. As the Commonwealth accurately states, the
Legislature generally is free to criminalize particular conduct
under multiple statutes, leaving the decision of which charges
to bring to the discretion of the Commonwealth. See
Commonwealth v. Hudson, 404 Mass. 282, 287-288 (1989)
(recognizing that stealing goods from a store could be
prosecuted either as shoplifting or as larceny by asportation).
                                                                   8


supra, the Commonwealth's interpretation is not compelled by

"common sense and sound reason."8

     In sum, although the Commonwealth's interpretation of the

statutory text is plausible, so too is the defendant's

alternative reading.   Accordingly, we are required to accept the

defendant's interpretation under the rule of lenity.      See

Commonwealth v. Williamson, 462 Mass. 676, 679 (2012), quoting

from Commonwealth v. Roucoulet, 413 Mass. 647, 652 (1992) ("when

a criminal statute can 'plausibly be found to be ambiguous,' the

rule of lenity applies, and we 'give the defendant the benefit

of the ambiguity'").   Because, as a matter of law, the

defendant's operating a motorized bicycle with a suspended

license does not constitute a violation of G. L. c. 90, § 23,

his conviction under that statute cannot stand.

     In closing, we acknowledge that good policy arguments can

be made for allowing the Commonwealth to bring a § 23 charge

against someone who operates a motorized bicycle with a

     8
       For the sake of completeness, we note that we touched on
this area of the law in Commonwealth v. Ceria, 13 Mass. App. Ct.
230, 233 n.3 (1982), albeit in dicta. There, after observing
that motorized bicycles are excluded from the definition of
motor vehicles but are subject to the traffic laws of the
Commonwealth, we foreshadowed our subsequent holding in Griswold
by stating our view that an operator of a motorized bicycle
could be arrested for violations such as operating under the
influence or driving to endanger. However, we also concluded
that an operator of a motorized bicycle could not be arrested
for not having a license in his possession, even though G. L.
c. 90, § 21, authorizes such arrests with respect to operators
of motor vehicles.
                                                                   9


suspended license.   However, whether to modify the statute to

allow such prosecutions properly falls to the Legislature.   See

Brach v. Chief Justice of the Dist. Ct. Dept., 386 Mass. 528,

538-539 (1982).

                                    Judgment reversed.

                                    Finding set aside.

                                    Judgment for the defendant.
