-: SJC 136, 98,
Commonwealth versus William C. Foley.
-: Okay, Attorney McGee,
whenever you're ready.
-: I believe I'm happy to start.
-: Oh, I'm sorry,
no, no, no, I'm sorry,
I messed up.
Attorney Opperman sorry.
(papers shuffling)
-: May I please the court?
Erin Opperman on behalf
of the defendant, appellant William Foley.
We are here on the defendant's appeal
of his conviction out
of the Dedham District Court,
presenting two arguments today.
The first is whether
or not there was sufficient evidence
on which to rest his guilt,
the second is the claim
that the judge erroneously denied his pretrial motion
to dismiss under Chapter 90 C, Section 2.
I will start with the sufficiency of the evidence claim,
'cause I think that's the primary reason
we're here before this court today.
Whether or not there was sufficient evidence
of Mr. Foley's guilt depends almost entirely
on whether or not his license suspension
was based on one
of the enumerated offenses set forth
in the third paragraph of Chapter 90, Section 23,
the enumerated offenses are set forth explicitly.
-: Can the judge suspend a license?
Is the judge the person
that revokes a license?
Erin: For what?
-: For any reason.
Is it an executive or judicial function?
-: I would say it's both,
depending on what the statute demands.
If the statute demands
that a license is to be suspended
as a result of a conviction,
that is something
that the judge carries out in its sentencing.
in other cases, such as-
-: But if a judge didn't do that though,
the registered motor vehicles is the person
or the entity that gives people notice
and suspends licenses, correct?
-: Yes, I would say as an administrative matter, yes.
I would say as far as the imposition
of the license suspension
as it's connected to a sentence
for a conviction of a crime,
that is something
that would be triggered first by the court.
-: It's triggered, 'cause it's a conviction
and it's reported to the registry, right?
Erin: Correct.
-: So they can implement the suspension.
-: Correct.
So in this case,
the statute under which
the defendant's license was suspended
at the time that he was arrested
and charged in this particular case
was not one of the enumerated offenses.
It was suspended solely by the RMV,
a suspension That was not triggered by-
-: What about the language
in the statute that says
and has not been restored?
-: So I would point to the specifics of the language,
and Your Honor's referring
to Section 23, third paragraph.
The specific language says that...
The third paragraph applies
after a driver's license is suspended pursuant to,
and then it names the enumerated factors-
Justice Gaziano: Which is this case, right?
-: Yes. Justice Gaziano: Okay.
-: And prior to the restoration of such license
or right to drive.
I take such as meaning that prior
to the right to drive
vis-a-vis the suspension under the enumerated offense,
then the third paragraph applies,
the third paragraph carrying the enhanced penalty.
-: So Mr. Foley's license was suspended, reported
by the judge, suspended by the registry
for the 10 year period, correct?
Erin: Correct.
-: And then the registry,
because of the threat continues it?
-: It wasn't because of the threat,
it was because of the particular combination
of Mr. Foley's criminal history.
-: Okay, but either way,
at no point was his license restored to him?
-: At no point
was his driver's license restored to him, correct.
I would say that
in this particular case,
there's sort of
an invisible parallel right to operate,
one stemming from the suspension
under the criminal conviction Section 24G,
and a separate one that ran parallel to that
stemming from the RMV suspension under Section C4.
-: So in essence,
he did have the right to drive,
just not by way of the RMV?
-: I would say that his right to drive
was not inhibited
as a result of his suspension
for his criminal conviction under Section 24G.
-: Is it, is it our role to interpret
what the statute says
and not read in invisible rights
to drive that were restored?
-: Well, I think in this case, interpreting
what the statute says does require
determining whether there
are multiple parallel rights
to drive that were suspended.
And then-
-: But that's complete news to me
that there are parallel rights to drive.
So you're suggesting that we put
that in to this statute?
-: I am,
I think that's required
to determine whether
or not a suspension,
an incompletely independent suspension
operating under chapter 90, Section C4
requires the application of the Section 90,
Section 23, third paragraph,
which requires a mandatory minimum 60 days in jail.
-: [Justice Wendlandt] So the defendant's license
was suspended pursuing to 24G?
-: Yes.
-: Right, and then You're saying
that he had this invisible right to operate
that sprung back into action after the 10 years?
-: I think phrasing it as it sprung back into action.
and I think I probably initiated
that is not the best way to look at it.
A better way to phrase it would be forward looking
that the right to operate is suspended
under a conviction for Chapter 90, Section 24G
for a certain period of time.
After that period of time ends,
the right to operate
as suspended by that statute expires.
In Mr. Foley's case a completely-
-: But the statute, just to your point of sticking
to the words of the statute, require
that 24G suspended license be restored,
and I'm just trying to follow the invisible rights here.
So you're saying that there was some restoration
of a right to operate invisibly
because of the end of the 10 year suspension?
-: I think a restoration of a right to operate
is not as accurate-
-: And if your argument were valid
than maybe the statute
should have said something like
for the duration of the judge ordered suspension
or something to that effect?
-: I would say obviously the statute doesn't speak
to this particular situation-
-: But it does say that the suspended license needs
to be restored,
it doesn't just spring back to life.
There has to be some action to restore it.
-: It doesn't say that it has to be restored.
-: No?
-: It says that the third paragraph
of Section 23 applies
after a driver's license is suspended, pursuant to one
of the enumerated offenses
and prior to the restoration
of such license or right to drive.
-: [Justice Wendlandt] Right,
or the issuance to him of a new license to operate.
-: Right.
I read the word such to modify license
or right to drive, meaning that the right to drive
that was suspended pursuant to one
of the enumerated offenses.
The right to drive that was suspended in this case pursuant
to Section 24G had expired by the time Mr. Foley drove-
-: And you're saying expiration of that is the same
as restoration,
which is the language of the statute.
-: I'm not saying it's the same,
of course it's not.
I'm saying that those are alternatives
set in the statute
that the expiration of which extinguishes
the triggering of the third paragraph of Section 23.
The Commonwealth is arguing
for such a situation
that anyone whose license is suspended
or right to drive is suspended pursuant
to one of the enumerated offenses
and never restores their license,
that they will forever be subject
to the third paragraph of Section 23,
-: That's a different case,
'cause your point I guess is
that had the registry not taken
the second action right?
And had done the lifetime
and the 10 years lapse,
the defendant doesn't do anything
and then he drives,
then there'd be a different situation
where he's arrested for driving
because he's never had his license restored
by the RMV correct?
-: Correct,
and in such a situation,
what would have happened was on the expiration-
Justice Gaziano: But that's certainly not this case,
but yeah.
-: It's not, no,
and that's why I say
that there were parallel suspensions,
one of which was imposed in 2002,
one of which was imposed in 2004 retroactive
to the date of his conviction.
But if the reading of the statute
that the commonwealth is advocating for is adopted,
what happens is all of the other enumerated offenses
give rise to a situation
where if someone's license is suspended,
say under Section 22N,
the court shall take possession
of a driver's license of a prima facia showing
that blood alcohol level from a chemical test
was over .18, .08.
If that person's license is suspended in court
and they never restore their license,
are they subject to be-
-: But in all these cases,
and Justice Georges is more recent to this,
when the person's convicted,
it's almost like branded,
they grab the license
and they physically take it away from you, right?
And you can't drive without a license,
so it means that the person who's been convicted,
they do their suspension,
they have to go to the registry
and get a new license.
-: Correct,
but what happens at the end
of the court ordered suspension period
is a defendant gets a letter from the RMV that says,
your period of suspension has ended,
your right to drive is reinstated,
you need to pay $500.
Justice Gaziano: Right, you need to go get a new license,
'cause they took it.
-: Certainly,
and I'm not saying that that person
whose suspension expires,
who doesn't pay the $500
and goes and physically gets a license,
I'm not saying they can't be charged with driving
without a license,
but they shouldn't be subject
to the enhanced penalty portion of the third paragraph.
-: Unless the RMV came back
and said, you can't drive
and you have a lifetime suspension.
-: And then they should be subject to the first
or second paragraph of Section 23.
The third paragraph is reserved explicitly
for the enumerated offenses.
Chapter 90, Section 24C4, it is not one of those.
And I think very clearly the tenants
of statutory construction
and the rule of lenity supports that narrow reading
of this particular situation.
If not,
it does expose
people whose licenses were once suspended,
pursuant to one of the enumerated offenses,
that person never restored their license,
never paid the money,
or physically obtained a new license,
it does expose them to an enhanced penalty
that wasn't meant for them.
If the legislature wanted obviously the third paragraph
to apply to people whose licenses were suspended
under chapter 90, Section C4,
they would've added it into the group
of I think six statutes that are covered there.
-: How does your reading take into account
the last clause, which is,
or the issuance to him of a new license to operate?
-: I think that the three clauses prior
to the restoration of such license or right to drive
or issuance of a new driver's license
are simply three different ways
that can extinguish the application
of the third paragraph of Section 23, one
of which happened in this case,
the right to drive
vis-a-vis the suspension under Section 24G had expired,
the suspension of that right to drive had expired.
So one of the three possible ways
that the application
of the third paragraph of Section 23
is removed occurred in this case,
and I just read the issuance of a new driver's license
to be one of the three ways
that the application
of that enhanced penalty portion might apply.
-: But that could extend for an indefinite period.
You see, it wouldn't just spring into being right
after the end of the suspension period attached
to the conviction.
So doesn't the third clause undercut your reading
or write to operate language?
-: I don't,
I think that it would be undercut
if the statute read
and prior to the restoration of such license
or right to drive
and the issuance of a new driver's license.
But it doesn't, it says, or,
and I think the three are equal alternatives
that extinguish the application
of the enhanced penalty portion of that section.
-: His right to operate actually had not been restored
as a result of the administrative lifetime suspension,
I'm not sure if that's the right word, by the RMV.
And the statute doesn't say right
to operate vis-a-vis the predicate conviction.
-: I think the use of the word such essentially implies
that that is what the statute means.
And as Justice Gaziano said,
if the imposition
of the additional lifetime suspension
under Section C4 had not occurred in this case,
maybe we would be in a different situation.
I believe that was the implication of Your Honor.
I would point to the Nascimento case-
-: What would happen in that scenario?
Sticking with Justice Gaziano's hypothetical,
license suspended under 24G
no restoration.
You don't go to the RMV to try to get a new license
and you just drive.
Is it your position that Paragraph 3
would or would not apply?
Erin: That It would not apply.
-: Why, because he didn't restore it?
-: Then the individual would be subject to arrest
and prosecution for driving
on an unlicensed operation.
Justice Gaziano: You're, just arguing
it's not the minimum mandatory,
it's still a crime,
but not the minimum mandatory.
-: Correct, correct,
and I think if Your Honors agree
with that proposition,
the only way to extend that to this case
is to find that there is no completely separate
and independent suspension that occurred in this case.
-: Let me ask you something.
Why did the RMV
give him a lifetime suspension?
-: The RMV gave him a lifetime suspension
because of the combination
of two convictions on his criminal record.
-: And the mobile homicide too, right?
Erin: That was one of the convictions.
-: Right.
-: But the lifetime suspension under Section C4
had nothing to do with the 10 year suspension.
If that 10 year suspension had never happened,
the suspension under Section C4
still would have occurred.
The suspension under Section C4
was related to the criminal convictions.
It was completely independent
of the 10 year license suspension.
It didn't act as an extension of that suspension.
It was a completely distinct
and separate suspension imposed,
not by a court
where the defendant is afforded the protections
of due process,
but solely by the RMV that ran concurrent
extending beyond the 10 year license suspension.
-: But your client has administrative rights
to contest the RMV action, correct?
-: He does and this court and Nascimento indicated
that it did not view those rights
as equivalent to the due process rights
that a defendant has in a court of law.
-: Well, let me ask you something.
Would you agree
that his license was suspended,
at least in part by the registry
for a lifetime offense
because of a motor vehicle homicide?
-: It was suspended at least in part
because of that conviction, yes.
-: Can I ask one more question.
And prior to the restoration of such license
or right to operate
or the issuance to him of a new license,
what work would the phrase restoration of such license
or issuance to him of a new license
even do under your reading of a statute?
Because under your reading of a statute,
whenever the court ordered suspension has ended,
his "quote-unquote 'right to operate'"
springs back into effect.
And so it would be irrelevant in every case,
whether the person had gotten a new license,
would it not, or am I missing something?
-: Yes, I think it would be irrelevant.
I think that this language points
to the legislative intent
that the enhanced penalty should only apply
if someone drives on a suspended license
while it's suspended
for one of the enumerated offenses,
and that didn't occur in this case.
Obviously sometimes the language in some
of these statutes isn't exactly harmonious,
but that is under statutory construction
the best reading under the propositions
that the scope should be narrow under the rule of lenity,
and I do ask the court to read it thusly in this case.
Justice Dewar: Okay, thank you
-: For the other argument,
I will rest on my brief, thank you.
Okay, now, Attorney McGee.
-: Good morning, Chief Justice, Bud Justices
of the Supreme Judicial Court.
May I please the court?
Michael McGee for the Norfolk District Attorney's Office.
-: All right, let's try the hypothetical.
All right, so defendant has
a motor vehicle homicide.
The judge says 10 years, registry says 10 years.
and the registry never gives a lifetime suspension
thereafter, the 10 years expires,
a year goes by,
the defendant's caught driving without a license.
Is it the minimum mandatory?
Michael: Yes.
-: In every case?
-: [Michael Yes.
-: Why?
-: I'll start with your first question.
Judge doesn't suspend a license, the RMV does.
The judge announces typically after a verdict
or after sentencing, you'll be subject
to statutory license loss.
That's recorded on the docket.
Docket is taken from the clerk's office
and given by an abstract to the registrar,
the registrar's suspensions
are an exclusive to the executive branch.
It's a function of the registrar
to suspend somebody's license.
Answer your hypothetical here.
A defendant's license is suspended
for 10 years is revoked,
doesn't exist, it's gone, it's gone.
It's not a mandatory,
minimum incarceration type situation.
What essentially the registry is saying is
your license is revoked, after 10 years
we can talk about it.
You can pay your fines,
you can come in and take a test, a number of things,
but your license is not reinstated.
And under this statute,
the language is unambiguous.
It says, and prior to the restoration of such license
or right to operate
or the issuance to him of a new license
to operate shall be punished.
That and is the most important part there,
and it's unambiguous.
Mr. Foley had his license suspended under 24G.
He did not restore his license.
He is subject to that until he restores his license
or is given the opportunity or right to operate
or some sunset provision or hardship license
or something like that.
Until that happens,
he is subject to that provision under 24G.
Justice Gaziano: So it doesn't matter
if 10 years goes by?
-: Correct,
and that's the purpose of it.
The legislature here is punishing folks
who have committed a motor vehicle homicide,
and they're saying your license is suspended
until the restoration of it.
Mr. Foley did just that he drove after his license
has been suspended for killing someone.
Justice Dewar: In under your reading,
what is the meaning of the phrase or right to operate?
-: They're essentially the same,
and I think there is other ways
that you can have a right to operate,
you can have a hardship license or sunset provision,
you can drive from 9:00 to 9:00, 9:00 to 6:00.
Perhaps in this case,
Mr. Foley had no right to operate,
and he talked about it in the video with WBZ
and he spoke about it with the officer
that he had a restricted license.
It's not a full licenser,
but I would suggest that under the plain meaning
of here, they're similar
in the effect that as here,
Mr. Foley hadn't restored his license
in any way whatsoever,
after that 10 years on the 24G.
-: What do we do with the lack of diligence
by the detective on the no fix part of this case?
You know he trades phone calls or whatever
with the reporter for two weeks,
doesn't do anything,
doesn't report to your office,
doesn't do anything.
-: The ills I would suggest under our case law
with the no fix
and a lot of these cases
are a lot different than this.
There's a crash and there's an investigation,
here there's no crash,
and what I would suggest to the court-
-: I get the fact that he doesn't have to act
when a citizen makes an anonymous complaint,
but once it's aired on TV,
does he have to something?
Michael: Authenticate it,
and I think that's important because WBZ-
-: Three weeks or so that goes by
when it's aired before.
-: And what I would suggest is that
the clock so to speak,
started when this was passed from the chief
to the detective here,
and I understand what you're saying-
Justice Gaziano: Which is about the day after the report.
-: Because the ills for no fix was this idea
that there was an opportunity
or an ability to fix a ticket after-
Justice Gaziano: I remember those days, so.
-: Right, correct.
After an officer had put in their report,
there was an opportunity,
here it's the opposite.
The chief says,
"Look into this, investigate it."
And to his credit,
he spoke to the reporter, authenticate,
Hey, is this accurate?
Was it taken on such and such a date?
And then, actually this con hears in the video
that the defendant saying,
"Oh, I have a restricted license."
Okay, we're at the tail end of COVID here.
There's all kinds of issues
with the RMV responding to people.
I'll go talk to him,
I'll be a conscientious police officer
and ask him what the situation is.
Justice Georges: There's a problem.
How does he ultimately confirm
that Mr. Foley can't drive?
-: An independent confirmation of the RMV records.
-: By through CGIS,
he did a CGIS search right?
So, of this nonsense is
he could have just done a CGIS search
as soon as he got the name, right?
So all of this,
I gotta talk to the reporter,
I gotta talk to Mr. Foley,
I gotta do all of these things.
He ultimately makes the determination doing a CGIS search.
-: And certainly he could have issued a citation,
filed a complaint.
And why I use the word conscientious is here,
he's giving this person the benefit of the doubt.
He's said in the video,
I have restricted license,
or I'm working on...
You know, whatever,
I forgot what he said.
He's spoken with the RMV
and discussions with the RMV.
He's giving him an opportunity
to tell his side of the story,
and yes, CGIS just might say someone's license is suspended
for X or he doesn't have a license.
Perhaps this defendant received a letter
from them saying, you do have a right
to operate on such and such a date.
In fact, in the video, he said,
I have a right to operate as of December.
So this police officer
is following up on that statement
and saying, you know,
what's going on with you and the RMV?
Are you were in the middle of hearings?
I don't know what,
what the record shows is that he followed up on it,
and what I would suggest
is that is perfectly reasonable
and appropriate given the context of this.
-: Can I follow up on
your use of the word reasonable
and ask you to walk me through
how the statute applies here?
And I have a two part question.
Part of it is friendlier to you
and part of it is less friendly.
So my first question is whether
you're aware of any case law applying
this statute in this kind of case,
because the statute is all about
any police officer assigned
to traffic enforcement duty
and then later on goes on to say, you know,
on or before the completion of his tour
of duty, et cetera, et cetera.
And it has a provision saying, you know, whether
or not the officer actually saw the thing happen, whatever.
The record suggest that this investigation
was assigned to this officer,
but it's not an officer sort
of assigned to traffic enforcement duty
in a general way.
And so it strikes me that, you know,
there are these three exceptions
where it's not a defense
that you didn't get a citation,
if number one, you know,
they couldn't have been stopped.
Well this guy couldn't have been stopped
'cause the police weren't even there
or if more time was reasonably necessary
to determine the nature of the violation
or the identity of the violator.
It seems to me that that doesn't apply here.
It's not that a citation was not issued
because we needed more time to figure out
who it was or what he did,
it was 'cause they didn't even know this occurred
and then the third one is the catchall.
And then what the statute goes on to say,
in such case as in where an exception applies,
the violation shall be recorded upon a citation
as soon as possible after such violation.
So it doesn't even say reasonably necessary,
that reasonably necessary phrasing,
I don't see how it applies here,
it's not the question.
I think what applies here is the language saying,
in such case, the violation
shall be recorded upon a citation
as soon as possible,
if the statute even applies.
Do you wanna talk me through
how you see the statute applying here?
-: It's a unique situation
where this arose from an investigative team,
not a police investigation.
So its application in this case,
I'm not aware of any other case similar to this.
The case is somewhat similar,
again, they involve crashes where police responded,
but where there's more
of an investigation that takes place.
Provost is a good case for that,
and I believe I cited it in here,
it's an older case,
but essentially where police did followed up
and did an investigation afterwards
and it was found to be reasonably necessary
for that delay,
and I know it's referenced in the Ray case
that is attached
and that's a similar circumstance
where there's a subsequent investigation.
What I'm suggesting here,
and to your reading of the letter
of the statute,
what the motion judge here found was
that it was appropriate for the officer
to speak to the key witness Cheryl (indistinct)
and then spoke with the defendant himself,
and then within the next business day filed a citation
that was done in...
I forgot the words,
that was an appropriate-
-: So you would say that
even if the standard is shall be recorded
upon a state citation as soon as possible.
-: Possible, that's the word, yes,
and that next business day,
as soon as he you know,
authenticated what was on those videos
that he had driven on a public way, spoken
to the defendant,
cleared up whether he had some kind
of restricted or hardship
or some kind of license and he didn't.
And did his independent review of CGIS' records
or of RMV records,
he filed the citation
or issued the citation,
filed it with the Dedham District Court
on the next business day.
-: A peculiarity of a statute
in the circumstances like this
is that if we read the statute
as applying to circumstances like this,
the statute effectively is a dictate by the legislature
that the police department has to prioritize investigations
of traffic enforcement actions above all others, right?
And this pertains to your point about COVID
and so forth, right?
If it truly is as soon as possible,
then if the police department (indistinct)
of a traffic enforcement violation, you know,
where an officer isn't on scene
and officer's not on traffic enforcement duty
when it occurs,
the statute requires issuing a citation
as soon as possible,
no matter what else
is going on in the police department.
-: Yes, and these are unique facts
and I'm trying to follow up on
the investigative team report,
it's not a police officer responding
to a scene.
If it was a traffic stop
and perhaps, I don't know, a officer missed
that a license was suspended,
I think that's a different circumstance,
they should be right on it.
They should be, you know,
you have an officer that observes something.
let's discover whether he had a license suspended
and get that filed, that citation issued right way
with the-
-: Well here we have literally the district attorney
emailing the chief of police the day of the report,
as well as other people internal to the office
and external to the office, around the day
of the WBZ report saying,
"What are you gonna do about this?"
Michael: Correct.
-: And then the trial court referred
to the existence of "quote-unquote 'bureaucracy'".
And if the statute applies in this circumstance, (laughing)
isn't that "quote-unquote 'bureaucracy'" time precisely
what the statute is trying to prevent
the internal machinations that might lead
to the non issuance of a citation?
-: What I would suggest here in this case
is that the opposite took place,
that the chief is receiving information
not only from the DA
but is Officer LaRusso sent an email to him,
you've got citizens sending emails,
and he did what exactly he should have
is passed it to an officer to investigate.
Justice Dewar: A month later?
-: Correct,
but passed it to an investigator
to find out if this was all true
and that his license was suspended for that reason.
-: Where would you suggest we go to find the definition
of the phrase assigned
to traffic enforcement duty?
-: That's an excellent question.
I do not know,
other than defining it for what it is-
-: Well, I mean, you consider Sergeant Doyle
to have been assigned
to traffic enforcement duty,
given that he was-
-: Detective sergeant, I don't know.
-: No, given that this was his task by the chief,
investigate this traffic enforcement violation.
-: Yes. I think that-
-: So even if that was not the normal course
of his duty on this particular occasion
for this particular case,
he's certainly an officer assigned
to traffic enforcement duty.
-: Correct, he was assigned
to investigate this violation, potential violation.
If there are no other questions,
I would rest on my brief.