subject: Massachusetts Arrested Suspension License Operating Influence Lawyers Attorneys [print this page] COMMONWEALTH vCOMMONWEALTH v. RICHARD F. CALLEN
Appeals Court of Massachusetts
June 9, 1988
The defendant, Callen, was arrested for operating a motor vehicle on February 26, 1987, while under the influence of intoxicating liquor. The defendant consented to take a breathalyzer test. It showed that he had a blood alcohol level of 0.20 (percentage, by weight, of alcohol in the blood). At arraignment in District Court, the judge pursuant to G. L. c. 90, 24N, suspended the defendant's operator's license for ninety days or until earlier disposition of his case. The defendant claimed a first-instance jury trial, but in the jury-of-six session waived jury. At trial he contested only the point that the locus, an unpaved area of a parking lot, was a public place within the statute. He was convicted. The judge, in connection with sentence, suspended the defendant's license for the minimum period of forty-five days (the maximum being ninety days), and alsomade other dispositions, all as provided in G. L. c. 90, 24D, as amended by St. 1986, c. 620, 14. The defendant asked the judge to exercise discretion and "relate back" the forty-five days to the earlier ninety-day suspension, thus reducing the current suspension to zero, but the judge held that he had no such discretion under 24D. Defendant challenged a judgment of the trial court (Massachusetts)
Issue:
Whether the trail court having the discretion and "relate back" the suspension of license for forty-five days to the earlier ninety-day suspension under 24D?
The language regarding the post-conviction suspension of a license does not itself admit of a construction that a judge is authorized to use any part of the earlier suspension period to serve in lieu of the later one. A judge under 24D already has a range of discretion to suspend a license between the limits of forty-five and ninety days and there is no indication that the minimal forty-five days may be extinguished by "relation back." The reconsideration and overhaul of the statutory system in 1986 was so extensive and so intent on stiffening sanctions that one should hesitate to gloss 24D as the defendant proposes.
Sections 24N and 24D stand together pretty well even though not perfectly. A person charged with drunken driving who turns upwith a substantiated blood alcohol content of 0.10 percent or more must be thought of as a menace to public safety, and it makes sense to relieve him of his license for a period of time by swift administrative action. The regular criminal prosecution ought to go forward and end during this period. Section 24N envisages this. It is regrettable when such expedition is not achieved -- another among multitudinous examples of the reality of criminal procedure confounding the theory. The suspension of a license upon conviction at least for the minimum period has the distinct purpose of keeping the now proven malefactor off the roads until he gets some remedial attention and can with more or less assurance to the public return to the wheel. It might be thought anomalous to have him driving ad lib during the interval immediately following conviction.
This Court affirmed the judgment and sentence of the trial court.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content
