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Com. v. Cahill6/24/2004
d 1257. Instead, St.2002, c. 302, **1201 § 5, specifically stated that § 24D "shall also 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" (emphasis added). Contrast Dunbrack v. Commonwealth, 398 Mass. 502, 503 & n. 3, 498 N.E.2d 1056 (1986) (noting that under previous version of statute, § 24D disposition was expressly inapplicable to second offender whose prior conviction or assignment occurred within six years of second offense).
FN11. Prior to the 2002 amendment, § 24D provided, in pertinent
part: "Any person convicted of or charged with operating a motor vehicle while under the influence of intoxicating liquor, who has been convicted ... of a single like offense ... more than six years, but less than ten years preceding the date of the commission of the offense with which he is charged may ... be placed on probation for not more than two years and shall, as a condition of probation, be assigned to a driver alcohol education program ... and, if deemed necessary by the court, to an alcohol treatment or education program or both, and the person's drivers license or right to operate a motor vehicle shall be suspended for a period consistent with the provisions of [G.L. c. 90, § 24(1) ( c) (2) ] " (emphasis added). G.L. c. 90, § 24D, as amended through St.1994, c. 25, § 7. Before it was amended in 2002, § 24(1) (c ) (2) provided that, "[w]here the license or the right to operate of a person has been revoked under paragraph (b ) and such person has been previously convicted ...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 within a period of ten years preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of such person ... until two years after the date of the conviction" (emphasis added). G.L. c. 90, § 24(1) (c ) (2), as amended through St.1994, c. 25, § 4. See Daley v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 406 Mass. 857, 858-859, 550 N.E.2d 878 (1990) ("The
revocation period for a second offender is two years"). The 2002 amendment to § 24 eliminated the phrase "within a period of ten years" from the above provision. See St.2002, c. 302, § 3.
Absent language resolving the ambiguity between § 24 and § 24D, second offenders who qualify for a disposition under § 24D should be treated no differently from first offenders. Limiting their loss of license to a maximum of ninety days comports with the plain wording of § 24D, as amended, as well as that section's historical purpose of providing an incentive to persons who "have a potential for rehabilitation" to opt for probation and alcohol treatment. See Report, supra at 3. At the same time, our holding leaves intact the dispositional provisions of § 24 for first and second offenders to whom a § 24D disposition would not apply.
3. Conclusion. The judgment is vacated insofar as it orders revocation of the defendant's license for two years. The case is remanded to the District Court for a hearing to determine the period of suspension of the defendant's license for not less than forty-five nor more than ninety days, pursuant to G.L. c. 90, § 24D.
So ordered.
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