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Commonwealth v. Cueva

Appeals Court of Massachusetts, Suffolk

February 12, 2019

COMMONWEALTH
v.
ARTURO D. CUEVA.

          Heard: September 11, 2018

          Complaint received and sworn to in the Chelsea Division of the District Court Department on August 31, 2015., The case was tried before Matthew J. Nestor, J.

          Joseph P. Lattimore for the defendant.

          Christopher Boutin, Assistant District Attorney, for the Commonwealth.

          Present: Vuono, Agnes, & Henry, JJ.

          VUONO, J.

         A jury in the Chelsea Division of the District Court Department convicted the defendant of operating a motor vehicle while under the influence of intoxicating liquor (OUI), third offense, and operating a motor vehicle after his license had been suspended as a result of a prior OUI conviction.[1] On appeal, the defendant claims that the judge erred by allowing in evidence unredacted records of the registry of motor vehicles (RMV), which contained multiple references to his refusal to submit to a chemical test.[2] He also contends that the evidence was insufficient to prove that he had notice his license had been suspended.

         We conclude that the failure to redact the RMV records was error and requires us to reverse the judgment on the charge of OUI, third offense. We also conclude that the Commonwealth failed to prove notice to the defendant of his license suspension. Consequently, judgment must enter for the defendant on the charge of operating a motor vehicle after suspension.[3]

         Background.

         1. Facts.

         On August 28, 2015, at about 6:45 E.M., Officer Steven Launie of the Revere police department was stopped in traffic on the American Legion Highway in Revere. The defendant's vehicle, a gray Toyota Camry, was in front of the officer. After a few minutes, the defendant pulled out of the lane of traffic onto the sidewalk and drove approximately 200 feet. Officer Launie activated his emergency lights and followed the defendant on the sidewalk, after which the defendant turned into the parking lot of a liquor store, where he parked without incident. Officer Launie parked behind the Camry, got out of his cruiser, approached the defendant's vehicle, and knocked on the driver's side window. The defendant initially held up his hand indicating that the officer should wait. Officer Launie knocked again and told the defendant to roll down the window. The defendant did not follow the officer's instruction. Instead, he opened the vehicle door. Officer Launie instructed him to close the door, and to remain in the automobile and roll down the window. The defendant complied, and Officer Launie requested his license and registration. The defendant produced a Massachusetts identification card and stated that his girl friend, who owned the vehicle, had his driver's license. He could not find the vehicle's registration, despite emptying the glove compartment in an effort to locate it. During this exchange, Officer Launie smelled the odor of alcohol and noticed that the defendant's movements were slow. After the defendant removed his sunglasses, the officer further observed that his eyes appeared glassy and bloodshot.

         Suspecting that the defendant had been driving while under the influence of alcohol, Officer Launie decided to assess his sobriety and asked him to step out of the vehicle and perform certain tasks starting with the "one-leg stand" test. The defendant said that he would not be able to perform the task because he was not strong enough, and in fact, he performed poorly. Next, the defendant was not able to walk nine steps in a straight line and turn around. At this point, Officer Launie formed the opinion that the defendant was under the influence of alcohol and placed him under arrest. The defendant was transported to the police station by another officer, who had arrived on the scene to provide backup support.

         The defendant did not testify at trial. His defense, developed through cross-examination and argument, was that his ability to drive was not impaired. He asserted, through counsel, that he drove on the sidewalk to avoid the traffic and that the sidewalk was wide enough for vehicles. He also claimed that vehicles often parked on that sidewalk and introduced evidence -- two photographs -- to corroborate his claim. Lastly, he argued that the Commonwealth failed to prove that on August 28, 2015, he knew his license had been suspended.

         2. The docket sheet ...


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