Gordon v. Registry of Motor Vehicles

• Decision Date: 24 August 2009
• Docket Number: No. 08-P-168.,08-P-168.
• Citation: 912 N.E.2d 9,75 Mass. App. Ct. 47
• Parties: Joseph W. GORDON v. REGISTRY OF MOTOR VEHICLES.
• Court: Appeals Court of Massachusetts

912 N.E.2d 9

75 Mass. App. Ct. 47

Joseph W. GORDON v. REGISTRY OF MOTOR VEHICLES.

No. 08-P-168.

Appeals Court of Massachusetts, Bristol.

Argued December 9, 2008.

Decided August 24, 2009.

Julie A. Rougeau for the plaintiff.

Stephen W. Marshalek, Assistant Attorney General, for the defendant.

Present: GRASSO, KATZMANN, & SIKORA, JJ.

KATZMANN, J.

In this case, we consider various constitutional challenges to a provision of the law known as "Melanie's Law," St.2005, c. 122, enacted to protect the public from drunk drivers. We conclude that the provision passes muster.

Joseph W. Gordon filed a complaint for a writ of mandamus, seeking an order that the registry of motor vehicles (RMV) reissue his license without the requirement that he install an ignition interlock device (IID) in accordance with G.L. c. 90, § 24½, a provision of Melanie's Law.¹ Gordon subsequently filed an amended complaint seeking a declaratory judgment, and preliminary and permanent injunctive relief. Gordon asserted that the IID requirement of § 24½ violated his constitutional rights to be free from ex post facto laws and double jeopardy, and that the requirement impermissibly deprived him of his due process rights. Both the RMV and Gordon filed motions for summary judgment. On November 30, 2007, the judge allowed the RMV's motion for summary judgment and denied Gordon's motion for summary judgment. Gordon appealed. We affirm.

Background.² In 1989, Gordon committed his first offense of operating a motor vehicle while under the influence of alcohol (OUI), in violation of G.L. c. 90, § 24D. That case was continued without a finding. On December 17, 2003, Gordon was convicted of a subsequent OUI. As a result, Gordon received a second-offense alternative disposition. As part of that disposition, Gordon was required to take alcohol education classes and his license was suspended for two years. Subsequently, Gordon requested and received a hardship license from the RMV, which allowed him to operate his vehicle in the daytime hours.

On January 1, 2006, G.L. c. 90, § 24½, went into effect, requiring individuals with two or more OUI convictions (offender) who seek a new license or a reinstatement of a license to install an IID on all vehicles they own, lease, or operate. See G.L.c. 90, § 24½.³ An IID must remain installed for a period of two years, ibid., and the offender bears the cost of installation and maintenance. See 540 Code Mass. Regs. § 25.07 (2006). Once installed on a motor vehicle, the offender must blow into the IID in order to start the vehicle's engine. The IID prevents a vehicle from starting if it detects a blood alcohol concentration level over a preset limit of .02 or 20 mg of alcohol per 100 ml of blood. See G.L. c. 90, § 12(c)

Gordon was eligible to apply for his license reinstatement on December 17, 2005. He applied for the reinstatement on January 3, 2006, a few days after G.L. c. 90, § 24½ went into effect. The RMV informed Gordon that his license would be reinstated only after he demonstrated proof of having installed an IID on his vehicle. The RMV then sent Gordon a letter informing him that his hardship license would also be revoked unless he installed the IID by March 4, 2006. Because Gordon failed to install the IID, his hardship license was revoked as of March 5, 2006.

Discussion. 1. Standard of review. "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). In this case, the facts are undisputed; thus, we review the record to determine if either party is entitled to judgment as a matter of law. See Nelson v. Salem State College, 446 Mass. 525, 530, 845 N.E.2d 338 (2006).

2. The ex post facto claim. The United States Supreme Court has held that every law which "changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed," is in violation of the ex post facto clause of the United States Constitution.⁴ Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798). This prohibition, however, applies only to statutes that are punitive in nature; civil remedies are not subject to the prohibition against ex post facto laws. See Commonwealth v. Fourteen Thousand Two Hundred Dollars, 421 Mass. 1, 6, 653 N.E.2d 153 (1995).

Gordon avers that the IID requirement is punitive and it therefore violates his constitutional right to be free from ex post facto laws. We disagree. "Whether a statute was intended to be criminal or civil depends on the Legislature's intent, which is a matter of statutory construction." Commonwealth v. Bruno, 432 Mass. 489, 500, 735 N.E.2d 1222 (2000), quoting from Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). If a statute was intended to be civil, then it must be interpreted as such unless the "party challenging the statute provides `the clearest proof' that `the statutory scheme [is] so punitive either in purpose or effect as to negate [the State's] intention' to deem it `civil.'" Kansas, supra, quoting from United States v. Ward, 448 U.S. 242, 248-249, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980).

In support of his argument, Gordon relies on the statute's emergency preamble,⁵ which states: "Whereas, [t]he deferred operation of this act would tend to defeat its purpose, which is to increase penalties for drunk drivers in the Commonwealth, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public safety." St.2005, c. 122, preamble. General statements in the preamble of a statute do not control its specific provisions. See Milk Control Bd. v. Gosselin's Dairy, 301 Mass. 174, 179-180, 16 N.E.2d 641 (1938). Although the preamble refers to "penalties," that term does not necessarily render the entire statute penal. See United States v. One Assortment of 89 Firearms, 465 U.S. 354, 364 n. 6, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984) (statute labeled "penalties" included provisions with remedial purpose). In fact, the preamble goes on to state that it is aimed at the "preservation of public safety"—a purpose that is remedial. See Luk v. Commonwealth, 421 Mass. 415, 423-430, 658 N.E.2d 664 (1995); Leduc v. Commonwealth, 421 Mass. 433, 436, 657 N.E.2d 755 (1995), cert. denied, 519 U.S. 827, 117 S.Ct. 91, 136 L.Ed.2d 47 (1996); Bruno, supra. Thus, while some of the provisions in Melanie's Law are penal in nature, see, e.g., G.L. c. 90, § 24V (creating new penalties for driving while intoxicated with a child in the car), we think that the preamble's reference to increased penalties was not particularly tailored to the IID provision, and that the IID provision is part of a large statutory scheme aimed at reducing the number of accidents caused by drunk driving. See United States v. Stoller, 78 F.3d 710, 722 (1st Cir.1996) (concluding statutory provision was remedial notwithstanding fact that sentence in legislative history contained "penal" element and other provisions within statute increased punishments).

Additionally, the Supreme Judicial Court, on numerous occasions has ruled that statutes imposing conditions on eligibility for continued licensure are remedial and nonpunitive in nature. See, e.g., Rushworth v. Registrar of Motor Vehicles, 413 Mass. 265, 270-271, 596 N.E.2d 340 (1992); Luk, supra; Leduc, supra at 435-436, 657 N.E.2d 755; Dupont v. Chief of Police of Pepperell, 57 Mass.App.Ct. 690, 694-695, 786 N.E.2d 396 (2003). For instance, in Luk, supra at 430, 658 N.E.2d 664, the court upheld a provision of G.L. c. 90, § 24, which mandates suspension of the driver's license of any individual who refuses to submit to a breathalyzer test in the event of an arrest based on OUI. The court emphasized that a driver's license is "a privilege voluntarily granted" and that "[r]evocation of this privilege has long reflected public safety concerns." Id. at 423, 658 N.E.2d 664.

In sum, the legislative scheme and case law considering that scheme support the conclusion that the IID restriction, with its goal of public safety, is not punitive.⁶ While the IID requirement may be burdensome on Gordon,⁷ that circumstance alone does not transform the statutory sanction into criminal punishment. See Flemming v. Nestor, 363 U.S. 603, 614, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960) (even though restriction may bear harshly on individual, it is not punishment). Compare Hawker v. New York, 170 U.S. 189, 196, 18 S.Ct. 573, 42 L.Ed. 1002 (1898) (even laws preventing individual from practicing profession as a result of criminal conduct are not punitive if underlying purpose is remedial). As Gordon failed to meet the burden of demonstrating that the statutory scheme at issue here is punitive, we determine that the IID requirement does not violate Gordon's constitutional protection against ex post facto laws.⁸

3. The double jeopardy claim. The double jeopardy clause of the Fifth Amendment to the United States Constitution protects against three distinct abuses: (1) "a second prosecution for the same offense after acquittal"; (2) "a second prosecution for the same offense after conviction"; and (3) "multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In addition to its application as a State constitutional or common-law doctrine, the double jeopardy clause applies to State prosecutions by operation of the due process clause of the Fourteenth Amendment to the United States Constitution. See Benton v. Maryland, 395 U.S. 784, 787, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). See also Powers v. Commonwealth, 426 Mass. 534, 537 n. 5, 540 n. 13, 694 N.E.2d 324 (1998) (Massachusetts has common-law and statutory...