Com. v. Cahill6/24/2004
The defendant appeals from a sentence revoking his driver's license for two years after he pleaded guilty in the District Court to a second offense of operating while under the influence of liquor. See G.L. c. 90, § 24. He argues that, because his case received a disposition pursuant to G.L. c. 90, § 24D, which provides, inter alia, that the offender's license is to be suspended for no more than ninety days, the judge exceeded his statutory authority in imposing a two-year loss of license. Because we agree that the statutory scheme is ambiguous, and that such ambiguity must be resolved in favor of the defendant, we vacate the judgment insofar as it orders revocation of the defendant's license for two years, and remand to the *128 trial court for a hearing to determine the term of suspension (from forty-five to ninety days) of the defendant's license under G.L. c. 90, § 24D. [FN1]
FN1. While G.L. c. 90, § 1, does not define either revocation or suspension, the terms may have distinct implications under the drunk driving statutes. At the time of the defendant's sentencing, a license suspended under G.L. c. 90, § 24D, was retained in the probation office of the court for the duration of the suspension period. (As of June 30, 2003, the probation department will dispose of a suspended license. See St.2003, c. 28, § 13.) A revoked license, on the other hand, is immediately surrendered to the prosecuting officer, who forwards it to the Registrar of Motor Vehicles. See G.L. c. 90, § 24(1) (b ).
**1197 1. Facts. The background facts are taken from the recitation by the prosecutor at the defendant's plea hearing. The defendant was stopped by a Haverhill police officer on January 18, 2003, following a hit and run collision in that city. The officer noticed the defendant's eyes were glassy, and that he slurred his speech and had an odor of alcohol on his breath. After failing two field sobriety tests, the defendant was placed under arrest.
At the plea hearing on February 4, 2003, defense counsel informed the judge that the defendant would plead guilty to a charge of driving while under the influence, second offense. Because the conviction on the first offense had occurred more than ten years before the second offense, [FN2] the Commonwealth and defense counsel agreed that the defendant was entitled to a disposition pursuant to then newly amended G.L. c. 90, § 24D, [FN3] and jointly recommended that he be placed on probation for one year. They disagreed, however, as to how long the defendant should lose his license. Defense counsel argued for a forty-five day suspension pursuant to § 24D, while the prosecutor recommended a two-year revocation. [FN4] See G.L. c. 90, § 24(1) (c ) (2). Both sides acknowledged that, under the new amendments *129 to the drunk driving statutes, the duration of license loss required by law was unclear. [FN5]
FN2. When the judge asked for the date of the prior offense, defense counsel replied, "It's more than eleven years ago, I think, was the date of offense of that one, and the conviction for the prior."
FN3. General Laws c. 90, § 24D, as amended through St.2002, c. 302, § 5, provides, in pertinent part: "This section shall ... apply to any person convicted of or charged with operating a motor vehicle while under the influence of intoxicating liquor who has been convicted of such offense ... 10 years or more before the date of the commission of the offense for which he is to be sentenced, once in his lifetime."
FN4. The Commonwealth's recommendation of a two-year loss of license prompted the court clerk to ask, "How can you have a [G.L. c. 90, § 24D,] disposition with a two-year --," to which defense counsel responded, "That's the million dollar question."
FN5. The amendments to
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