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Commonwealth v. Nascimento

Supreme Judicial Court of Massachusetts, Suffolk

June 5, 2018

COMMONWEALTH
v.
JOSE NASCIMENTO.

          Heard: February 6, 2018.

         Complaint received and sworn to in the East Boston Division of the Boston Municipal Court Department on February 18, 2016.

         A 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.

          Helle Sachse, Assistant District Attorney (James J. Megee, Assistant District Attorney, also present) for the Commonwealth.

          Shannon Dale, Committee for Public Counsel Services, for the defendant.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          BUDD, J.

         General 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), [1] 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.

         Background.

         The 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) .

         While 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.

         The 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.

         The Commonwealth appealed, and we transferred the case from the Appeals Court on our own motion.

         D ...


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