Heard: March 24, 2016.
received and sworn to in the Brockton Division of the
District Court Department on February 16, 2012.
case was heard by Mary L. Amrhein, J.
Bauer for the defendant.
E. Lee, Assistant District Attorney, for the Commonwealth.
Present: Hanlon, Sullivan, & Maldonado, JJ.
jury-waived trial in the District Court, the defendant was
convicted of operating a motor vehicle after his license or
right to operate had been suspended for operating a motor
vehicle while under the influence of intoxicating liquor
(OUI). See G. L. c. 90, § 23, third par. He appeals,
arguing that his motion for a required finding of not guilty
was wrongfully denied because the Commonwealth failed to
prove that he had notice that his license had been suspended.
trial, the Commonwealth called one witness and offered one
exhibit; the underlying facts are not in dispute. Trooper
John Santos of the Massachusetts State Police testified that,
on January 30, 2012, at approximately 8 P.M., he was
observing traffic on Spark Street on the north side of
Brockton. He saw a white Cadillac with a defective tail light
and a damaged brake light. He stopped the car and asked the
driver for his license and registration. The driver, later
identified as the defendant, produced a registration for the
car and said that his name was Jason Wilson. He also told the
trooper his date of birth and current address. He never
produced a Massachusetts driver's license. The trooper,
after checking with the Registry of Motor Vehicles on his
"mobile data terminal, " gave the defendant a
summons for the civil motor vehicle infractions and also for
"operating with a suspended license."
the trooper's testimony, the Commonwealth offered a
certified copy of a docket sheet, number 1106 CR 2028,
showing that on January 11, 2012, nineteen days before the
defendant was stopped by Trooper Santos, the defendant had
appeared in the West Roxbury Division of the Boston Municipal
Court and admitted that there were facts sufficient to
support a finding of guilty on a charge of OUI in violation
of G. L. c. 90, § 24(1) (a.) (1) (count 1); and
operating a motor vehicle after his license or right to
operate had been suspended, in violation of G. L. c. 90,
§ 23 (count 2). In addition, the defendant had pleaded
guilty to leaving the scene of an accident after causing
personal injury, in violation of G. L. c. 90, § 24(2)
(a. 1/2) (1) (count 3).
docket sheet in that case indicates that on count 1, the OUI
charge, the defendant received a continuance without a
finding for one year, with conditions of probation including
completion of the G. L. c. 90, § 24D, program, payment
of certain fees, and a "45 day LOL" (loss of
license). On count 3, the leaving the scene after causing
personal injury conviction, the defendant received a
concurrent sentence of probation, with the notation
"loss of lie. as by law."
order to obtain a conviction in the present matter, "the
Commonwealth was obligated 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  [a.]); and (4) that
the defendant was notified that his license had been
suspended or revoked." Commonwealth v.
Oyewole, 470 Mass. 1015, 1016 (2014) (quotation
Oyewole, the court described the following facts.
"In October, 2009, the defendant admitted to sufficient
facts to support a finding of guilty on a charge of operating
while under the influence of liquor (OUI case). According to
the docket sheet from that case, his license was suspended
for sixty days. Less than sixty days later, a Wilmington
police officer, observing that a motor vehicle had its
headlights off at 12:30 A.M., stopped the vehicle. The
defendant was the driver and only occupant of the vehicle.
The officer requested the defendant's license, which the
defendant produced. The officer confiscated the license and
placed the defendant under arrest."
Id. at 1015-1016.
Oyewole court concluded that the evidence was
sufficient to prove that the defendant had operated a motor
vehicle after his license or right to operate had been
suspended for operating under the influence. However, even
considering the evidence in the light most favorable to the
Commonwealth, "[a]s to the fourth element, . . . the
evidence presented at trial, together with all reasonable and
possible inferences that might properly be drawn from it, was
insufficient to permit a reasonable fact finder to find,
beyond a reasonable doubt, that the defendant had been
notified of the license suspension." Id. at
court noted that there was no evidence in the record that the
docket sheet had been shown to the defendant, or that the
sentence was announced in open court. "There was also no
evidence that the defendant acknowledged, at the time of the
stop or at any other time, that he was aware of the
suspension. Moreover, the evidence showed that when he was
stopped, the defendant had his license in his possession and
gave it to the police officer. When a license is suspended in
connection with a conviction for operating while under the
influence, G. L. c. 90, § 24D, fourth par., requires
that the license be surrendered to the probation department.
Here, however, the defendant apparently did ...