Sullivan v. Bd. of Appeal on Motor Vehicle Liab. Policies & Bonds

• Decision Date: 08 July 2020
• Docket Number: No. 19-P-652,19-P-652
• Citation: 151 N.E.3d 885,97 Mass.App.Ct. 818
• Parties: Michelle SULLIVAN v. BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS.
• Court: Appeals Court of Massachusetts

97 Mass.App.Ct. 818

151 N.E.3d 885

Michelle SULLIVAN

v.BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS.

No. 19-P-652

Appeals Court of Massachusetts, Essex..

Argued March 9, 2020

Decided July 8, 2020

Dana Alan Curhan, Boston, for the plaintiff.

David R. Marks, Assistant Attorney General, for the defendant.

Present: Henry, Desmond, & Hand, JJ.

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 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.

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 onehalf 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 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. See Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974). 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 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 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, 971 N.E.2d 330 (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, 121 N.E.3d 1221 (2019), quoting Bridgewater State Univ. Found. v. Assessors of Bridgewater, 463 Mass. 154, 156, 972 N.E.2d 1016 (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, 58 N.E.3d 351 (2016).

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. G. L. c. 90, § 24 (1) (c ) (4). 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, 815 N.E.2d 611 (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, 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, 815 N.E.2d 611. 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, 57 N.E.3d 1059 (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 Souza, 462 Mass. at 232, 967 N.E.2d 1095, quoting Commonwealth v. Galvin, 388 Mass. 326, 330, 446 N.E.2d 391 (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, 121 N.E.3d 703 (2019), the word "conviction" where it appears elsewhere in § 24.¹⁰ See id., citing Connors v. Annino, 460 Mass. 790, 796, 955 N.E.2d 905 (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, 658 N.E.2d 664 (1995) ; Breslin v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 70 Mass. App. Ct. 131, 134, 872 N.E.2d 1182 (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. See G. L. c. 90, § 24 (1) (c ) (...