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Commonwealth v. Cahill6/24/2004
Essex.
May 4, 2004.
Motor Vehicle, Operating under the influence. Practice, Criminal , Sentence. Statute, Construction.
Complaint received and sworn to in the Haverhill Division of the District Court Department on January 21, 2003.
A plea of guilty was accepted by Kevin J. Gaffney, J.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
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 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.
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, the Commonwealth and defense counsel agreed that the defendant was entitled to a disposition pursuant to then newly amended G. L. c. 90, § 24D, 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. See G. L. c. 90, § 24 (1) (c) (2). Both sides acknowledged that, under the new amendments to the drunk driving statutes, the duration of license loss required by law was unclear.
After taking a recess to research the issue, the judge decided to revoke the defendant's license for two years. In support of his ruling, he stated that he "drew the parallel" to the previous version of § 24D, which imposed a two-year loss of license if the prior conviction occurred six to ten years earlier. See G. L. c. 90, § 24D, as amended through St. 1994, c. 25, § 7. The judge also cited a memorandum from the Chief Justice of the District Court Department that construed the amended drunk driving laws as mandating a two-year loss of license for all second offenders. Declining the judge's offer to withdraw his tender of plea, the defendant accepted the proposed disposition "with the understanding that it's our intention to challenge the loss of license."
Following the plea colloquy, the judge found the defendant guilty of operating while under the influence, second offense, and sentenced him to one year of probation, conditional on his completion of an alcohol treatment program, and a two-year loss of license. On February
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