Sullivan v. Board of Appeal on Motor Vehicle Liability Policies and Bonds

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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 5571030; SJCReporter@sjc.state.ma.us 19-P-652 Appeals Court MICHELLE SULLIVAN vs. BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS. No. 19-P-652. Essex. Present: March 9, 2020. - July 8, 2020. Henry, Desmond, & Hand, JJ. Board of Appeal on Motor Vehicle Liability Policies and Bonds. Motor Vehicle, Board of Appeal on Motor Vehicle Liability Policies and Bonds, Operating under the influence, Homicide, License to operate. License. Registrar of Motor Vehicles, Revocation of license to operate. Administrative Law, Agency's interpretation of statute. Civil action commenced in the Superior Court Department on September 29, 2014. The case was heard by James F. Lang, J., on motions for judgment on the pleadings. Dana Alan Curhan for the plaintiff. David R. Marks, Assistant Attorney General, for the defendant. HAND, J. In this appeal, we consider whether the lifetime license revocation set forth in G. L. c. 90, § 24 (1) (c) (4), as amended through St. 1982, c. 373, § 4, applies where a driver 2 has committed, but has not been convicted of, operating under the influence at the time that the driver operates under the influence again, and in doing so, causes a fatal accident. Concluding that, where the person is ultimately convicted of both the earlier and later offenses, it does apply, we affirm the judgment. Background. The essential facts are not disputed. On October 24, 2003, the plaintiff, Michelle Sullivan, was arrested for operating under the influence of intoxicating liquor (first OUI). She was charged in the District Court with violating G. L. c. 90, § 24 (1) (a) (1). On November 5, 2003, while the first OUI was pending, the plaintiff committed a second operating under the influence of intoxicating liquor (second OUI); in doing so, she caused an accident that killed one of her passengers. She was charged with homicide by motor vehicle while under the influence of intoxicating liquor.1 See G. L. c. 90, § 24G. The plaintiff was arraigned on this charge in the District Court; however, the charge was nol prossed after the plaintiff was indicted and arraigned in the Superior Court. In the Superior Court, the plaintiff was charged with homicide by motor vehicle while under the influence of intoxicating liquor under both a per se theory and based on reckless or negligent conduct, G. L. c. 90, § 24G; manslaughter; and being a minor in possession of alcohol, G. L. c. 138, § 34C. The plaintiff was nineteen years old at the time of these events. 1 3 On December 9, 2003, after a jury trial, the plaintiff was convicted of the first OUI. Several months later, on September 30, 2004, the plaintiff resolved the criminal charges related to the second OUI by pleading guilty to motor vehicle homicide while under the influence of alcohol and while operating negligently or recklessly.2 The judge sentenced the plaintiff to two and one- half years in the house of correction, two years to serve, with the balance suspended for ten years with probation. The judge also ordered that the plaintiff's driver's license be revoked for ten years. The registry of motor vehicles (registry) issued a ten-year license revocation on October 8, 2004.3 The plaintiff completed the probationary period of her sentence in April, 2014. On April 15, 2014, the Registrar of Motor Vehicles (registrar) notified the plaintiff that her driver's license had been revoked for life4 based on her conviction for motor vehicle homicide while under the influence of liquor; the decision was based on the registrar's application The plaintiff also pleaded guilty to being a minor in possession of alcohol; the charge was placed on file. The remaining charges were nol prossed. 2 3 The suspension was effective October 18, 2004. The letter stated that the lifetime revocation was effective on October 18, 2004. 4 4 of G. L. c. 90, § 24 (1) (c) (4), which generally imposes a lifetime ban on persons whose subsequent conviction of operating under the influence involves an accident causing death.5 The plaintiff appealed the registrar's lifetime revocation of her driver's license to the Board of Appeal on Motor Vehicle Liability Policies and Bonds (board), arguing, as she does here, that because she had not yet been convicted of the first OUI at the time she committed the second OUI, the registrar incorrectly interpreted G. L. c. 90, § 24 (1) (c) (4), to require a lifetime loss. In a written decision, the board affirmed the registrar's imposition of a lifetime revocation of the plaintiff's driver's license and, in doing so, affirmed the registrar's interpretation of G. L. c. 90, § 24 (1) (c) (4). The plaintiff sought judicial review of the board's decision in the Superior Court. See G. L. c. 30A, § 14. The parties filed cross motions for judgment on the pleadings. Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974). See In a thoughtful written order, a judge denied the plaintiff's motion for judgment on the pleadings, and allowed the board's cross motion, affirming the board's lifetime revocation of the plaintiff's The notice also advised the plaintiff that her license was subject to indefinite suspension based on both the registrar's immediate threat revocation, effective November 6, 2003, and the plaintiff's accrual of five surchargeable events. On appeal, the plaintiff does not challenge these additional license losses. 5 5 driver's license. The plaintiff appeals from the resulting judgment. Discussion. The sole issue on appeal is the interpretation of G. L. c. 90, § 24 (1) (c) (4),6 which provides, in relevant part: "[N]o new license shall be issued or right to operate be reinstated by the registrar to any person convicted of a violation of subparagraph (1) of paragraph (a) [operating under the influence of alcohol or drugs] until ten years after the date of conviction in case the registrar determines upon investigation and after hearing that the action of the person so convicted in committing such offense caused an accident resulting in the death of another, nor at any time after a subsequent conviction of such an offense, whenever committed, in case the registrar determines in the manner aforesaid that the action of such person, in committing the offense of which he was so subsequently convicted, caused an accident resulting in the death of another." The plaintiff challenges the board's determination that § 24 (1) (c) (4) mandated lifetime revocation of the plaintiff's driver's license where (1) the plaintiff was ultimately convicted of two OUI offenses, (2) the second of which resulted in a fatal accident, (3) whether or not she had been convicted We note here that in an "apparent clerical error," resulting from the 2005 enactment of "Melanie's Law," St. 2005, c. 122 § 6A, the Legislature inadvertently deleted or repealed § 24 (1) (c) (4). Commonwealth v. Maloney, 447 Mass. 577, 584 (2006). Nonetheless, "[w]e . . . proceed with the understanding that § 24 (1) (c) (4) continues in effect." Burke v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 90 Mass. App. Ct. 203, 207 (2016). 6 6 of the first OUI at the time that she committed the second OUI with its fatal accident. 1. Standard of review. Our review pursuant to G. L. c. 30A, § 14, "is limited to determining whether the agency's decision was unsupported by substantial evidence, arbitrary and capricious, or otherwise based on an error of law" (citation omitted). Haverhill Retirement Sys. v. Contributory Retirement Appeal Bd., 82 Mass. App. Ct. 129, 131 (2012). "[Q]uestions of statutory construction are questions of law, to be reviewed de novo."7 Meyer v. Veolia Energy N. Am., 482 Mass. 208, 211 (2019), quoting Bridgewater State Univ. Found. v. Assessors of Bridgewater, 463 Mass. 154, 156 (2012). The burden is on the plaintiff to demonstrate the invalidity of the administrative determination. See Burke v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 90 Mass. App. Ct. 203, 206 (2016). In conducting our review, however, we give deference to "a reasonable interpretation of a statute by the administrative agency charged with its administration and enforcement." Burke, 90 Mass. App. Ct. at 206, citing Anawan Ins. Agency, Inc. v. Division of Ins., 459 Mass. 592, 596 (2011). See Souza v. Registrar of Motor Vehicles, 462 Mass. 227, 228-229 (2012). The trial judge was subject to the same standard of review; to the extent that the plaintiff argues that, in granting deference to the board's interpretation of G. L. c. 90, § 24 (1) (c) (4), the judge failed to undertake a proper de novo review of the statute at issue, we disagree. See Worcester Regional Retirement Bd. v. Contributory Retirement Appeal Bd., 92 Mass. App. Ct. 497, 499 (2017) ("even when conducting de novo review of legal questions," courts may defer to agency's expertise). 7 7 2. Statutory interpretation. a. Plain language. The plaintiff argues that, read literally, § 24 (1) (c) (4) requires "a conviction of a qualifying offense prior to the commission of the second offense, not merely the commission of an offense that later ripens into a conviction." The section, while dense, unambiguously distinguishes between a driver's "commi[ssion]" of an OUI offense, and the driver's "convict[ion]" of an OUI. (4). G. L. c. 90, § 24 (1) (c) It applies where a person has been convicted of two OUI offenses, the second of which results in the death of a person, "whenever [the later offense is] committed." Id. In making the prohibition on license reinstatement applicable where a driver is convicted of a second offense OUI causing a fatal accident "whenever [the later offense is] committed," the section explicitly forecloses the plaintiff's argument that the second offense must be committed at any particular time in relation to the same driver's conviction of the first OUI offense. Id. We find some support for this view in Stockman v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 62 Mass. App. Ct. 159 (2004). Although, in Stockman, this court did not address the question raised in this appeal, in affirming a lifetime license revocation under G. L. c. 90, § 24 (1) (c) (4), the court concluded that, "[f]or a lifetime revocation, the language calls for two convictions of driving while intoxicated, 8 coupled with a determination by the registrar that the second commission of that offense ('the action of such person, in committing the offense of which he was so subsequently convicted') caused a fatal accident." Stockman, supra at 161. We did not identify then, and do not discern now, the additional requirement suggested by the plaintiff here that the driver be convicted of the earlier OUI before the commission of the later, fatal, OUI for the statute to apply.8 See Callahan v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 90 Mass. App. Ct. 196, 198 (2016) (noting convoluted nature of operative language of G. L. c. 90, § 24 [1] [c] [4], as amended through St. 1982, c. 373, § 4, but concluding "its meaning is not in doubt"). Had the legislature intended in § 24 (1) (c) (4) to require a conviction on the first OUI as a prerequisite to a lifetime revocation after the second, fatal OUI, we conclude that, as it did elsewhere in § 24, the Legislature would have said so.9 See We read the Legislature's use of the term "conviction" in § 24 (1) (c) (4) only to express a requirement that the driver whose license is revoked under § 24 (1) (c) (4) was actually convicted of both offenses. See Souza, 462 Mass. at 230-231, quoting G. L. c. 90, § 24 (1) (d) (defining the term "convicted" for purposes of G. L. c. 90, § 24 [1]). 8 For example, § 24 (1) (c) (2), (3), (3½), and (3¾), providing for enhanced OUI penalties for subsequent offenses, are limited in their applications to situations in which the driver has been "convicted" of the prior offense by the time the driver "commi[ts]" the subsequent offense. See G. L. c. 90, 9 9 Souza, 462 Mass. at 232, quoting Commonwealth v. Galvin, 388 Mass. 326, 330 (1983) ("[W]here the Legislature has employed specific language in one paragraph, but not in another, the language should not be implied where it is not present"). It did not include that language here. b. Superfluity. Adopting the plaintiff's interpretation of § 24 (1) (c) (4), which would require us to insert the requirement of a conviction where the Legislature did not include it, would also have the undesirable effect of "render[ing] superfluous," Cuticchia v. Andover, 95 Mass. App. Ct. 121, 125 (2019), the word "conviction" where it appears § 24 (1) (c) (2) ("Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of . . . a like violation preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license" [emphasis added]), (3) ("Where the license or right to operate of any person has been revoked under paragraph (b) and such person has been previously convicted . . . of a like offense . . . two times preceding the date of the commission of the crime for which he has been convicted . . . the registrar shall not restore the license" [emphasis added]), (3½) ("Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of . . . a like violation three times preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license" [emphasis added]), (3¾) ("Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of . . . a like violation four or more times preceding the date of the commission of the offense for which such person has been convicted, such person's license . . . shall be revoked" [emphasis added]). 10 elsewhere in § 24.10 See id., citing Connors v. Annino, 460 Mass. 790, 796 (2011) (statute should be construed to give effect to all its provisions so no part will be inoperative or superfluous). General Laws c. 90, § 24, establishes a set of escalating sanctions for repeat OUI offenders, including progressively longer periods of license revocation.11 See G. L. c. 90, § 24 (1) (c) (2), (3), (3½), (3¾); Luk v. Commonwealth, 421 Mass. 415, 429 (1995); Breslin v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 70 Mass. App. Ct. 131, 134 (2007). With respect to license revocations based on a driver's conviction of crimes involving operating under the influence, the sanction applicable to a given offender depends upon whether and how many times the offender has been "previously convicted" of OUI. G. L. c. 90, § 24 (1) (c) (2), (3), (3½), (3¾). See See also Commonwealth v. Virgilio, 79 Mass. App. Ct. 570, 581 (2011) (Sikora, J., dissenting) ("Within G. L. c. 90, § 24 (1) (a) (1), The requirement that a driver be "previously convicted" of an OUI for purposes of the sentence enhancement provisions of G. L. c. 90, § 24 (1) (c), was included in the statute as amended in 1982, see St. 1982, c. 373, § 4, and remains part of the current version of the law. See G. L. c. 90, § 24 (1) (c) (2), (3), (3½), (3¾). 10 We do not suggest that the license revocation provisions at issue are penal in nature. See Powers v. Commonwealth, 426 Mass. 534, 538-539 (1998), and cases cited. 11 11 the Legislature prescribes graduated punishments (fines, incarceration, and mandatory commitments) for second, third, and fourth or more convictions"). If we were to read § 24 (1) (c) (4), as the plaintiff does, to require that the first OUI conviction must precede the commission of the second OUI offense, we would effectively read the words "previously convicted" out of the enhancement provisions in the subsections immediately following § 24 (1) (c) (1). See G. L. c. 90, § 24 (1) (c) (2), (3), (3½), (3¾). see no basis for doing so. We See Massachusetts Care Self-Ins. Group, Inc. v. Massachusetts Insurers Insolvency Fund, 458 Mass. 268, 276 (2010), citing Ferrari v. Toto, 9 Mass. App. Ct. 483, 486 (1980) (construing statutory language, we consider relevant provisions in context). c. Public safety concerns. "[A] statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 382 Mass. 580, 585 (1981), quoting Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513 (1975). See 12 New England Power Generators Ass'n v. Department of Envtl. Protection, 480 Mass. 398, 410-411 (2018), quoting ENGIE Gas & LNG LLC v. Department of Pub. Utils., 475 Mass. 191, 199 (2016) (statute should be construed in light of "'surrounding text, structure, and purpose of the Massachusetts act' from which [it] is derived"). The purpose of the OUI laws, generally, and of § 24 (1) (c) (4), specifically, is the protection of public safety. See Commonwealth v. Dowler, 414 Mass. 212, 215 & n.6 (1993). Interpreting § 24 (1) (c) (4) as the board did comports with the Legislature's public safety intent "to remove from the road a person who causes a death by an OUI after the commission of an earlier OUI." Burke, 90 Mass. App. Ct. at 208. See Luk, 421 Mass. at 426-427 (purpose of license revocation "is to protect the public from future harm by depriving the unsafe or irresponsible driver of his or her authority to continue to operate a motor vehicle"); Commonwealth v. McGillivary, 78 Mass. App. Ct. 644, 646 (2011), quoting Commonwealth v Ginnetti, 400 Mass. 181, 184 (1987) ("The purpose of G. L. c. 90, § 24, is to 'protect[] the public from intoxicated drivers'"). The license revocation at issue is intended to reduce the likelihood that a person will continue to drive while impaired, not to punish an impaired driver. 538-539 (1998). See Powers v. Commonwealth, 426 Mass. 534, 13 The plaintiff argues that the Legislature may have sought to "save the sanction of a lifetime license revocation for those who . . . after 'enduring the penalties of [a prior] conviction, did not learn from that experience and conform their behavior accordingly.'" Although we agree with the plaintiff that the Legislature could have done so -- in much the same way that, in other subsections of the statute, it made escalating penalties for subsequent-offense OUI convictions contingent on the existence and number of prior convictions at the time of the defendant's arrest for a subsequent offense -- it did not do so here. Like the motion judge, we have considered the countervailing policy considerations in the parties' arguments. We are aware of some sympathetic elements in the plaintiff's argument; the plaintiff was a teenager at the time she committed the OUI offenses, and there is evidence in the record strongly suggesting her appreciation of the wrongfulness of her earlier conduct, and her increased maturity and responsibility since that time. We are not insensitive to the practical impact of the lifetime license loss at issue here. Concluding, however, that the plain language of § 24 (1) (c) (4) mandated the lifetime revocation imposed, we discern no error of law in the board's interpretation of the statute. See Arlington Contributory Retirement Bd. v. Contributory Retirement Appeal 14 Bd., 75 Mass. App. Ct. 437, 441 (2009). See also Boston Retirement Bd. v. Contributory Retirement Appeal Bd., 441 Mass. 78, 82 (2004) ("Where an agency's interpretation of a statute is reasonable, the court should not supplant it with its own judgment"). 3. Effect of judge's sentencing order. The plaintiff argues that the registrar's lifetime driver's license ban ran counter to the sentencing judge's wishes. To the extent that the plaintiff's argument rises to the level of appellate argument, see Zaleskas v. Brigham & Women's Hosp., 97 Mass. App. Ct. 55, 74 n.27 (2020), citing Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975), we are not persuaded. The plaintiff cites to no authority to suggest that the judge's sentencing order could relieve the registrar of its statutory obligation and authority to enforce the lifetime license revocation required by § 24 (1) (c) (4).12 "The subject of license revocation has been assigned legislatively to the executive department." Brach v. Chief Justice of the Dist. Court Dep't, 386 Mass. 528, 538 (1982). Where, as we conclude, the Legislature has mandated a lifetime revocation, the judge's order of a ten-year license loss created a minimum, not a Nor is it apparent from the record that the judge intended to do so. 12 15 maximum, and the statute provided the operative revocation period. See Commonwealth v. Selavka, 469 Mass. 502, 504-505 (2014) (where statute required that probationary term imposed on conviction of offense include global positioning system monitoring of defendant, sentence that failed to include such monitoring was illegal).13 Conclusion. We interpret G. L. c. 90, § 24 (1) (c) (4), to mandate lifetime license revocation where a person commits an OUI, and then later commits a separate OUI that results in the death of a person, and is ultimately convicted of both OUI offenses, regardless of whether the commission of the later, fatal, OUI occurs before or after the person's conviction of the earlier OUI. Accordingly, we conclude that the board's interpretation of that section was reasonable, and that the plaintiff has not met her burden of demonstrating that the administrative determination was invalid. See Burke, 90 Mass. App. Ct. at 212. The judgment is affirmed. We are unpersuaded by the plaintiff's arguments that the plaintiff lacked notice of the consequences she faced regarding the potential loss of license, and the plaintiff's speculative contentions that the she could have postponed the trial on the first OUI until resolution of the second OUI or successfully appealed the first OUI charge. In any event, where these arguments are unsupported by citations to legal authority, they do not rise to the level of appellate argument and we do not address them further. See Commonwealth v. Lawton, 82 Mass. App. Ct. 528, 544 n.14 (2012), citing Mass. R. A. P. 16 (a) (4). 13 16 So ordered.

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