Com. v. Crosscup

• Decision Date: 17 December 1975
• Citation: 339 N.E.2d 731,369 Mass. 228
• Parties: COMMONWEALTH v. William A. CROSSCUP.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 731

339 N.E.2d 731

369 Mass. 228

COMMONWEALTH

v. William A. CROSSCUP.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Sept, 15, 1975.

Decided Dec. 17, 1975.

Michael D. Cutler, Boston, for defendant.

Bonnie H. MacLeod-Griffin, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY, KAPLAN and WILKINS, JJ.

KAPLAN, Justice.

After the defendant Crosscup (appellant here) had been convicted of speeding in Newburyport, for which he paid a fine, the Registrar of Motor Vehicles started proceedings to suspend his license temporarily on the ground that the registrar has 'reason to believe that (the defendant) did improperly operate a motor vehicle.' The registrar followed the procedures for suspension set out in G.L. c. 90, § 22(b), (d): He sent a notice of intention to suspend to the defendant at his correct address, and, following the defendant's failure to request a hearing, he sent, also to the correct address, a notice dated February 27, 1973, declaring a fifteen-day suspension. According to normal practice, the notices were sent by first class mail.

The second notice directed the defendant to deliver his license to the registry and to desist from operating a motor vehicle until his license was reinstated. The defendant did not comply. Everett police arrested him when he was observed operating a vehicle on August 15, 1973, and he was charged the next day with violations of G.L. c. 90, § 23, in that he operated a vehicle while his license was suspended on August 15, and also on the previous May 21 and 23; he was also charged with a speeding violation on May 21.

After conviction in Malden District Court of all charges, the defendant appealed to the jury-of-six session of the Third District Court of Eastern Middlesex. He moved at the threshold to dismiss on the ground (among others) that a conviction resulting from nonreceipt of the registry notice provided by the statute would lack due process. The judge in the absence of the jury received evidence under the motion to dismiss; he admitted some testimony on the question whether the defendant had in fact received the notice, but over the defendant's objection he rejected other evidence on the matter (to be described below), and he finally denied the motion. The judge had evidently reached the conclusion that receipt was immaterial, for at the trial to the jury he denied the defendant's motion for an instruction that 'if the defendant did not receive notice that his license had been suspended, . . . the jury must find him not guilty of operating a motor vehicle after his license had been suspended.' The judge also excluded, again over objection, evidence offered by the defendant tending to prove nonreceipt of the registry notice.

The defendant was convicted on all counts and fined. The case is before us on a second substitute bill of exceptions addressed only to the suspension convictions.

The Commonwealth contends that criminal liability for driving during suspension of license may be established without a showing of receipt of notice of suspension (or knowledge of it). As the procedure looking to license suspension requires mailing of notices to the operator (see G.L. c. 90, § 22, and discussion below), the Commonwealth's position is, in essence, that the notices need only have been properly mailed and evidence of nonreceipt should be excluded. The defendant on his part argues in his brief as if the prosecution must show the defendant's actual knowledge of his suspension, but in oral argument he appeared to agree-and in all events this is a sensible position, in the light of the heroic enforcement problems that would otherwise arise ¹--that the Commonwealth need only prove receipt of notice, so that it would be enough if the notice was received in the household, even if the defendant did not in fact see it. We take it that the true conflict narrows to whether mere proof of mailing suffices, or, on the contrary, proof of receipt is required. (That the fact of mailing is 'prima facie evidence' of receipt--see point 2(b) below--still further narrows the conflict as a practical matter.)

First, we show by an analysis of the statute that proof of receipt is required (of either the notice of suspension or of the intention to suspend). ² If there were ambiguity in the statute, the same conclusion would be supported by canons of interpretation, including the one favoring a reading that avoids constitutional doubt. Second, we examine the rulings of the trial judge in the light of the receipt requirement and hold that there was error.

1. Whether proof of receipt is required. General Laws c. 90, § 23, as amended through St.1970, c. 186, reads in part as follows, the words directly relevant being italicized; 'Any person convicted of operating a motor vehicle after his license to operate has been suspended or revoked, or after notice of the suspension or revocation of his right to operate a motor vehicle without a license has been issued by the registrar and received by such person or by his agent or employee, and prior to the restoration of such license or right to operate or to the issuance to him of a new license to operate, . . . shall . . . be punished for a first offence by a fine of not less than fifty nor more than one hundred dollars or by imprisonment for not more than ten days, or both . . ..'

(a) The italicized language labels the offense and describes the punishment for it, but does not itself offer much assistance on the precise question at bar. However, the statutory procedure for suspension of an operator's license laid out in the preceding section, G.L. c. 90, § 22 (and already adverted to in the statement of facts above), is instructive on the matter. Except where continuing operation by a driver 'constitutes an immediate threat to the public safety' that warrants immediate action (see G.L. c. 90, § 22(a)), the registrar is obliged to send a notice of intention to suspend a license at least fourteen days prior to suspension (see § 22(b)). The notice must state the reason for the action and inform the operator of his right to request a hearing as to just cause. If a hearing is requested, it must be granted and the license may not be suspended until its completion. Failure to request a hearing is a waiver of the right. In any event, the registrar, if he decides to suspend, must send a further notice informing the operator of that fact. § 22(d). ³ The operator may then appeal to an administrative board (§ 28) and may obtain further judicial review under the State Administrative Procedure Act, G.L. c. 30A. See Poitras v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 356 Mass. 510, 254 N.E.2d 412 (1969). The whole process for suspension, with its ample provision for warning the operator so that he can protect his interest, strongly suggests that it is a condition of conviction of the offense that the operator shall be shown to have received notice of suspension or of the intention to suspend.

Strengthening this conclusion--and, incidentally, indicating that receipt is enough without showing actual knowledge of suspension--is the unitalicized language of § 23, above quoted, dealing with the offense of operating a vehicle when one's right to do so without a license has been suspended or revoked. The class of operators affected includes, among others, holders of learners' permits or valid out-of-State licenses. See G.L. c. 90, §§ 8B, 10. Section 23 plainly indicates that it must be shown for conviction of persons in this class that notice of suspension was received; and that receipt, without actual knowledge, suffices is indicated by the reference to receipt by the operator's agent or employer. On the face of things there is no reason for a difference of treatment in this respect between persons entitled to drive without a domestic license, and those entitled to drive by reason of holding such a license. The most plausible reason for dealing expressly in § 23 with the question of notice to the former group, but not the latter, is that the latter is covered by the detailed provisions of § 22. The results, however, should be, and, we think, are in substance the same.

(b) The Commonwealth's argument that conviction may rest on proof of mailing without more must attempt an artificial distinction between the two groups of offenders dealt with in the quoted part of § 23, and must ignore the relation of § 23 to § 22. We may add that it is hard to see how so severe a reading would tend significantly to reduce the incidence of driving with suspended licenses, which is after all the object of such a statute as § 23. ⁴

Were there doubt about the proper construction of the statute, the defendant would be aided, first, by the rule that 'ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,' Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971), and, second, by the rule that that interpretation is to be preferred which averts constitutional difficulties.

On the latter point: The punishment for a first violation of § 23 is not inconsequential, and for later violations becomes more severe. ⁵ Furthermore, three convictions result in revocation of license for a lengthy period of time. See § 22F. In Commonwealth v. Buckley, 354 Mass. 508, 238 N.E.2d 335 (1968), we considered whether knowledge must be shown to convict a person for being present where narcotics were being kept illegally. In light of the heavy penalty attaching to the crime--imprisonment for up to five years--we thought clear statutory language would be needed (which in the end we did not find) to buttress an interpretation that knowledge was irrelevant; and back of the interpretative question was the constitutional doubt. On the other hand, we said in Commonwealth v. Minicost Car Rental, Inc., 354 Mass. 746, 242 N.E.2d 411 (1968), that, in view of the minor...