Heard: February 6, 2018.
received and sworn to in the East Boston Division of the
Boston Municipal Court Department on February 18, 2016.
motion to dismiss was heard by John E. McDonald, Jr., J. The
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
Sachse, Assistant District Attorney (James J. Megee,
Assistant District Attorney, also present) for the
Shannon Dale, Committee for Public Counsel Services, for the
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Laws c. 90, § 23, third par. (§ 23, third par.),
provides for a mandatory minimum sentence of sixty days in a
house of correction on a conviction of operating a motor
vehicle after the suspension or revocation of an
individual's driver's license for operating while
under the influence of alcohol or controlled substances
(OUI). Here we are asked to determine whether the defendant,
Jose Nascimento, who operated a motor vehicle after his
license was administratively suspended pursuant to G. L. c.
90, § 24 (1) (f) (2),  was properly charged under §
23, third par. The defendant filed a motion to dismiss the
charge in the Boston Municipal Court, which the judge
allowed. Because § 24 (1) (f) (2) is not one of the
provisions enumerated in § 23, third par., we conclude
that the defendant was not properly charged under that
statute. Accordingly, we affirm the judge's order
allowing in part the motion to dismiss.
pertinent facts, taken from the record, are undisputed. On
January 24, 2016, a State police trooper stopped the
defendant's vehicle after observing him commit several
marked lane violations. Several other troopers arrived to
assist. During the stop, the defendant was exhibiting signs
of possible intoxication, including glassy or bloodshot eyes
and slurred speech. A number of field sobriety tests were
conducted, which indicated that the defendant was
intoxicated. A breathalyzer test also was administered, which
measured the defendant's alcohol level at 0.132 per cent.
The defendant was arrested and transported to the State
police barracks, where he submitted to a blood alcohol test
that registered his alcohol level to be 0.13 per cent. The
defendant was given a citation and, pursuant to § 24 (1)
(f) (2), his license was revoked and his right to operate a
motor vehicle was administratively suspended for thirty days.
The defendant was then arraigned for, among other things,
OUI, in violation of G. L. c. 90, § 24 (1) (a) .
the defendant's charges were pending, on February 17,
2016, a State police trooper performed a computer query on a
motor vehicle that had passed him. He learned that the
vehicle was registered to the defendant and that the
defendant's license had been suspended for OUI. When the
trooper stopped the vehicle, he recognized the driver from a
photograph provided by the registry of motor vehicles. When
the trooper asked the defendant for his license and
registration, the defendant admitted that his license had
been suspended. The defendant was arrested and charged with
operating a motor vehicle after license suspension for OUI,
in violation of § 23, third par.
defendant moved to dismiss the charge of operating after a
suspension for OUI. Concluding that § 23, third par.,
did not apply to the defendant, the judge granted the motion
in part and dismissed the OUI portion of the charge, leaving
the defendant charged with operating after a suspension.
Commonwealth appealed, and we transferred the case from the
Appeals Court on our own motion.