Tirado v. Board of Appeal on Motor Vehicle Liability Policies and Bonds

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SJC-11818

ALFREDO TIRADO vs. BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY

POLICIES AND BONDS (and two consolidated cases1).

Norfolk. Worcester. Suffolk. May 5, 2015. - July 28, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &

Hines, JJ.

Board of Appeal on Motor Vehicle Liability Policies and Bonds.

Motor Vehicle, License to operate. License. Registrar of

Motor Vehicles, Revocation of license to operate. Carrier,

License. Practice, Criminal, Conviction, Admission to

sufficient facts to warrant finding, Continuance without a

finding.

Civil action commenced in the Superior Court Department on

January 3, 2013.

The case was heard by Kenneth J. Fishman, J., on a motion

for judgment on the pleadings.

Civil action commenced in the Superior Court Department on

February 28, 2013.

The case was heard by Robert B. Gordon, J., on a motion for

judgment on the pleadings.

1

John J. Kelly vs. Registrar of Motor Vehicles & another;

and Scott Channing vs. Registrar of Motor Vehicles & another.

2

Civil action commenced in the Superior Court Department on

March 28, 2013.

The case was heard by Judith Fabricant, J., on a motion for

judgment on the pleadings.

After consolidation of the cases in the Appeals Court, the

Supreme Judicial Court granted an application for direct

appellate review.

David R. Marks, Assistant Attorney General, for the

defendants.

Dana Alan Curhan for Scott Channing.

Ryan E. Alekman, for Alfredo Tirado, was present but did

not argue.

Cornelius J. Madera, III, for John J. Kelly, was present

but did not argue.

William A. Quade, for United States Department of

Transportation Federal Motor Carrier Safety Administration,

amicus curiae, submitted a brief.

SPINA, J. In these consolidated appeals, we are asked to

determine if a defendant's admission to sufficient facts to

warrant a finding of guilty and a judge's continuance of the

case without a finding (CWOF) constitute a "conviction" as that

term is defined in G. L. c. 90F, § 1,2 governing the licensure of

commercial drivers. Judges in the Superior Court determined

that it did not and vacated the decisions of the Board of Appeal

on Motor Vehicle Liability Policies and Bonds (board) upholding

the suspension of the commercial drivers' licenses (CDLs) at

issue by the registrar of motor vehicles (registrar). The board

2

"Conviction," as defined in G. L. c. 90F, § 1, includes "a

determination that a person has violated or failed to comply

with the law in a court of original jurisdiction."

3

and the registrar appealed. The Appeals Court consolidated the

three appeals, and we granted the parties' joint application for

direct appellate review. As we explain, we vacate the decisions

of the Superior Court and enter judgment in favor of the board.3

1. Background. The facts are undisputed. The specific

details of each of the three appeals are not material to

answering the question before us. Rather, it is enough to say

that each plaintiff was licensed as a commercial driver and at

some time was charged with operating a motor vehicle while under

the influence of intoxicating liquor. Each plaintiff

subsequently admitted to sufficient facts to warrant a finding

of guilty, and the judge accepting each admission continued the

case without a finding of guilty. Consequently, the registrar,

after determining that the admission and CWOF were a

"conviction" as defined in G. L. c. 90F, § 1, suspended the CDL

of each plaintiff pursuant to G. L. c. 90F, § 9 -- in two cases,

for life because the new offense was a subsequent offense.

Each plaintiff appealed the decision of the registrar to

the board. The board, after a hearing, affirmed each decision

of the registrar. Each plaintiff then sought judicial review of

the board's decision under G. L. c. 30A, § 14. Judges of the

3

We acknowledge the letter submitted by the United States

Department of Transportation Federal Motor Carrier Safety

Administration in lieu of an amicus brief.

4

Superior Court determined that a CWOF is not a conviction as

that term is used in G. L. c. 90F and vacated the board's

decision in each case.

2. Statutory framework. a. The 1986 act. General Laws

c. 90F is the Legislature's adoption of the Federal Commercial

Motor Vehicle Safety Act of 1986, Title XII of Pub. L. No. 99-

570, codified at 49 U.S.C. §§ 31301 et seq. (1986 act). Enacted

to address public concern over the substantial social and

economic losses associated with accidents involving large trucks

and buses, the purpose of the 1986 act was to improve the safety

of commercial motor vehicle operations. 52 Fed. Reg. 20,574,

20,575 (1987). Congress identified two major issues it sought

to address: (1) the practice by commercial drivers of obtaining

licenses from multiple States, which facilitated the avoidance

of consequences of license suspensions and revocations, and (2)

a lack of uniformity or vitality in licensing procedures,

qualifications, and evaluations among the States. Id. at

20,576.

To ensure uniformity in the application of the 1986 act

among the several States, it requires Federal highway funds be

withheld from a particular State if that State fails to comply

substantially with a number of stated requirements. 49 U.S.C.

§§ 31311(a), 31314 (2012). One of these requirements involves

the consequences of operating while under the influence of

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alcohol (OUI). States are required to suspend the CDLs of those

convicted of OUI or who refuse to be tested on suspicion of OUI.

In the case of a first conviction or refusal, the suspension is

for one year. 49 C.F.R. § 383.51 (Table 1) (2013). A second

conviction or refusal results in a lifetime disqualification or

revocation. Id.

"Conviction" is defined very broadly in the Federal

regulations to include not only an "adjudication of guilt" but

also a determination by an appropriate authority, judicial or

administrative, that "a person has violated or failed to comply

with the law." 49 C.F.R. § 383.5 (2013), added by 53 Fed. Reg.

39,044, 39,051 (1998). Under this definition of "conviction," a

person "referred to a remedial program as a substitute for the

imposition of a penalty, fine, or other sanction" would be

subject to a CDL suspension. 53 Fed. Reg. at 39,047.

b. The antimasking amendment. Despite these efforts,

Congress in 1999 determined that safety on the roads could be

improved further. It enacted the Motor Carrier Safety

Improvement Act of 1999, Pub. L. No. 106-159, 113 Stat. 1748

(1999 act). The 1999 act increased the range of offenses that

could disqualify a person from maintaining a CDL. For example,

before 1999 only convictions of operating commercial vehicles

while under the influence of alcohol resulted in

disqualification. See 100 Stat. 3207-177 to 3207-178. Under

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the 1999 act, convictions of operating noncommercial motor

vehicles under the influence of alcohol are now included. See

113 Stat. 1759. Additionally, States are explicitly forbidden

from disguising or masking the recording of convictions for such

offenses. 49 U.S.C. § 31311(a)(19) (2012). The corresponding

regulations state that the "State must not mask, defer

imposition of judgment, or allow an individual to enter into a

diversion program that would prevent a . . . conviction" from

appearing in the national database. 49 C.F.R. § 384.226 (2013),

added by 67 Fed. Reg. 49,742, 49,762 (2002) and amended by 76

Fed. Reg. 26,895 (2011). In promulgating this regulation, the

Federal Motor Carrier Safety Administration (FMCSA) explained

that the antimasking provision was "intended to prohibit States

not only from masking convictions, but also from using diversion

programs or any other disposition that would defer the listing

of a guilty verdict on a CDL driver's record. . . . The FMCSA

urges State Executive Branch agencies to work with the State

Judicial Branch to eliminate the practice of masking. This

practice allows unsafe drivers to continue to pose a risk to

other motorists by allowing their continued operation on the

nation's highways." 67 Fed. Reg. at 49,749-49,750.

c. State adoption. The Legislature first adopted the 1986

act in 1990 and codified it as G. L. c. 90F. St. 1990, c. 246,

§ 2. In response to Congress's 1999 efforts, the Legislature

7

further amended c. 90F in 2006. St. 2006, c. 119, §§ 2-7. The

2006 amendment included the new antimasking provision and

specifically referenced 49 C.F.R. § 384.226. St. 2006, c. 119,

§ 19. Additionally, regulations promulgated by the registrar

specifically incorporate all the provisions of 49 C.F.R. Part

383. 540 Code Mass. Regs. § 2.06(9) (1999).

3. Standard of review. The issue raised in this case is

one of statutory interpretation -- whether an admission to

sufficient facts to warrant a finding of guilty and CWOF is a

determination that a person "has violated or failed to comply

with the law" within the meaning of "conviction" as that term

appears in G. L. c. 90F, § 1. This question does not involve

any gaps in the statute to which the board needs to apply its

specialized knowledge relating to motor vehicles and driving

rules to give the statute meaning. The interpretive question

here is purely legal and we review it de novo because "[t]he

duty of statutory interpretation rests ultimately with the

courts." Souza v. Registrar of Motor Vehicles, 462 Mass. 227,

229-230 (2012), and cases cited.

4. Discussion. We arrive then at the heart of the

question in the case before us. The board4 argues that the

4

For the purpose of clarity in the remainder of this

opinion, we refer to the board and registrar collectively as the

board.

8

plaintiffs' admissions to sufficient facts to warrant a finding

of guilty and CWOFs are convictions for the purposes of c. 90F.

Relying primarily on our decision in Souza, supra at 235, the

Superior Court reasoned that an admission to sufficient facts

and CWOF were not a "determination that a person has violated or

failed to comply with the law." G. L. c. 90F, § 1.

In Souza, we considered whether an admission to sufficient

facts and CWOF were a "conviction" for the purposes of G. L.

c. 90, § 24 (1) (f) (1). Souza, 462 Mass. at 227-228. Under

the terms of the version of that statute at issue in Souza, "a

person shall be deemed to have been convicted if he pleaded

guilty or nolo contendere or was found or adjudged guilty by a

court of competent jurisdiction, whether or not he was placed on

probation without sentence or under a suspended sentence or the

case was placed on file . . . ." G. L. c. 90, § 24 (1) (d).

There the board argued that, although an admission to sufficient

facts was not explicitly included in the definition of

"convicted" in § 24 (1) (d), the statute's purpose of increasing

the penalties of repeat drunk driving required a liberal reading

of the statutory language. See Souza, supra at 231. We

rejected this argument and stated that the failure of the

definition of "convicted" to include an admission to sufficient

facts was fatal to the board's argument when the Legislature had

9

included that specific term elsewhere in the same statute. Id.

at 232.

The plaintiffs note that after our decision in Souza, the

Legislature amended G. L. c. 90, § 24 (1) (d), to include an

admission to sufficient facts within the definition of

"convicted." St. 2012, c. 139, § 98. They urge that a similar

result should follow in this case. While we agree that

legislative action specifically including an admission to

sufficient facts in the definition of "conviction" in G. L.

c. 90F would definitively settle the question before us, the

reasoning in Souza when applied to the statute here leads us to

the opposite conclusion from that of Souza because the

definition of conviction in G. L. c. 90F, § 1, is broader than

in G. L. c. 90, § 24 (1) (d). Under G. L. c. 90F, § 1, the

definition of "conviction" encompasses an admission to

sufficient facts and CWOF.

An "admission to sufficient facts" means an admission to

facts sufficient to warrant a finding of guilty. Commonwealth

v. Duquette, 386 Mass. 834, 838 (1982). "An admission to

sufficient facts is very much like an Alford plea or a plea of

nolo contendere, in that the defendant does not explicitly admit

guilt." Reporters' Notes to Rule 12, Mass. Ann. Laws Court

Rules, Rules of Criminal Procedure, at 1490 (LexisNexis 2014).

The plaintiffs argued -- and the Superior Court agreed -- that

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an admission to sufficient facts is not "a determination that a

person has violated or failed to comply with the law" because

the defendant admitting the facts is not admitting his guilt.

G. L. c. 90F, § 1.

The plaintiffs further contend that no judicial

determination takes place at all because the disposition of a

CWOF merely continues the case to a future date. Successful

fulfilment of the probationary conditions during the pendency of

the continuance results in the dismissal of the complaint or

indictment. Commonwealth v. Pyles, 423 Mass. 717, 722-723

(1996). Violation of the probationary conditions of a CWOF does

not result in the automatic imposition of the stayed sentence

but instead "may ripen into an adjudication of guilt and

imposition of sentence" (emphasis added). Commonwealth v.

Villalobos, 437 Mass. 797, 801 (2002). The fact that a criminal

defendant avoids either admitting his or her guilt or having a

court adjudicate his or her guilt under this practice is the

linchpin to the plaintiffs' argument that no determination that

a person has violated or failed to comply with the law has

occurred.

We do not think the issue of admission or adjudication of

the guilt of a defendant is dispositive of the question whether

a determination has been made that a person has violated or

failed to comply with the law. Such an argument acknowledges

11

only the form of the end result of the practice without regard

for its operation and purpose. The mutual benefits of a

pretrial disposition of charges are well known and do not need

to be repeated here. See Duquette, 386 Mass. at 843. The

procedure by which a court allows the case against a defendant

to be continued without a finding of guilty necessarily requires

that the defendant admit to sufficient facts to warrant such a

finding -- that is to say, the facts that would demonstrate that

he or she had violated or failed to comply with the law.

An admission to sufficient facts to warrant a finding of

guilty "triggers the same safeguards required when a defendant

offers to plead guilty." Commonwealth v. Lewis, 399 Mass. 761,

763 (1987). See Mass. R. Crim. P. 12 (a) (2), (a) (3), as

appearing in 470 Mass. 1501 (2015). "The judge shall conduct a

hearing to determine the voluntariness of a plea or admission

and the factual basis of the charge" (emphasis added). Mass. R.

Crim. P. 12 (c) (5), as appearing in 442 Mass. 1511 (2004). The

rule further describes the procedures to be followed for a plea

or admission to sufficient facts. Commentators and the

established practice in the District Court indicate that a judge

would not and should not accept an admission to sufficient facts

unless that admission had a factual basis to support a finding

of guilt of the crime charged. See E.B. Cypher, Criminal

Practice and Procedure § 24:76 (4th ed. 2014). Indeed, it is

12

illogical to conclude that a defendant could receive the

disposition of a CWOF without first admitting to sufficient

facts that satisfied the judge that he or she was guilty. See

Mass. R. Crim. P. 28 (b), 378 Mass. 898 (1979). See also

Commonwealth v. Norrell, 423 Mass. 725, 727 n.5 (1996).

The reason an admission to sufficient facts triggers the

same safeguards as a guilty plea is that a violation of the

conditions of a CWOF may result in the immediate adjudication of

guilt and imposition of sentence without requiring the

Commonwealth to offer any further evidence of the underlying

offense. See Commonwealth v. Tim T., 437 Mass. 592, 596-597

(2002). See also Commonwealth v. Mahadeo, 397 Mass. 314, 316

(1986). If a judge can enter a finding of guilty and impose

sentence without taking any further evidence of the underlying

offense after a violation of the conditions of a CWOF, it

follows that an implicit determination has been made that the

defendant "has violated or failed to comply with the law." We

therefore conclude that a CWOF falls within the definition of

"conviction," as that term is used in G. L. c. 90F, § 1.

Our analysis is bolstered by the statutory scheme itself.

The Legislature, in enacting c. 90F, required that it be

"liberally construed to promote the public health, safety and

welfare" and emphasized that "[t]o the extent that the

provisions of this chapter conflict with the general operator

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licensing provisions of [G. L. c. 90, which was the chapter at

issue in Souza], this chapter prevails" (emphasis added). St.

1990, c. 246, § 1. The Legislature is clearly acting within its

powers when it defines a general term beyond its ordinary

meaning for use in a particular piece of legislation. See

Kerins v. Lima, 425 Mass. 108, 114-115 (1997). The definition

of "conviction" at issue here compels the result we reach. See

G. L. c. 90F, § 1 ("As used in this chapter . . ."). Finally,

the specific reference in G. L. c. 90F, § 13, to 49 C.F.R.

§ 384.226 and the complete incorporation of 49 C.F.R. Part 383

by 540 Code Mass. Regs. § 2.06(9) (1999) clearly demonstrate the

intent of the Legislature to fully comply with the Federal

framework and its interpretations, which would arrive at the

same conclusion we have here today.

5. Conclusion. For the reasons stated, we hold that an

admission to sufficient facts to warrant a finding of guilty and

the continuance of the case without a finding of guilty is a

"conviction" as that term is defined in G. L. c. 90F, § 1.

Accordingly, we vacate the decision of the Superior Court in

each case and enter judgment for the board.

So ordered.