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Commonwealth v. Cueva

Appeals Court of Massachusetts, Suffolk

February 12, 2019

COMMONWEALTH
v.
Arturo D. CUEVA.

         Argued September 11, 2018.

         [118 N.E.3d 160] 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, Boston, for the defendant.

          Christopher Boutin, Assistant District Attorney, for the Commonwealth.

         Present: Vuono, Agnes, & Henry, JJ.

          OPINION

         VUONO, J.

         [118 N.E.3d 161] A jury in the Chelsea Division of the District Court Department convicted the defendant of operating a motor vehicle

Page 781

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 P.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

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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 [118 N.E.3d 162] 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 ...


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