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Commonwealth v. Lopez

Appeals Court of Massachusetts, Bristol

May 10, 2017

COMMONWEALTH
v.
WILLIAM A. LOPEZ.

          Heard: February 28, 2017.

         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.

          Present: Wolohojian, Milkey, & Shin, JJ.

          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 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.

         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, 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, § 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, ยง IB, as amended by St. 1989, ...


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