Heard: February 28, 2017.
received and sworn to in the Fall River Division of the
District Court Department on October 22, 2013.
case was heard by Cynthia M. Brackett, J.
M. Costa for the defendant.
C. Ferrick, Assistant District Attorney, for the
Present: Wolohojian, Milkey, & Shin, JJ.
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
operating the moped with a suspended license may have been a
violation of G. L. c. 90, § IB (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.
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.
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). Based on the evidence adduced at trial,
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.
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.
§ 23 does not by its terms apply to motorized bicycles,
it must be read in conjunction with G. L. c. 90, § IB,
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.'" 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, § IB, as amended by St. 1989, ...