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

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23-P-227 Appeals Court

RICHARD L. DESAUTELS vs. BOARD OF APPEAL ON MOTOR VEHICLE
LIABILITY POLICIES AND BONDS & another.1

No. 23-P-227.

Suffolk. January 4, 2024. – July 12, 2024.

Present: Rubin, Ditkoff, & Grant, JJ.

Alcoholic Liquors, Motor vehicle. Board of Appeal on Motor
Vehicle Liability Policies and Bonds. Motor Vehicle, Board
of Appeal on Motor Vehicle Liability Policies and Bonds,
License to operate, Operating under the influence.
Registrar of Motor Vehicles, Revocation of license to
operate. Practice, Civil, Judgment on the pleadings.
Notice.

Civil action commenced in the Superior Court Department on
April 2, 2021.

The case was heard by Jackie Cowin, J., on motions for
judgment on the pleadings.

Patty DeJuneas for the plaintiff.
Jennifer E. Greaney, Assistant Attorney General, for the
defendants.

1 Registry of motor vehicles.
2

RUBIN, J. The question before us is whether there was

substantial evidence in the record before the registry of motor

vehicles (registry) that disposition of a Vermont driving while

under the influence (DUI) charge, see Vt. Stat. Ann. tit. 23,

§ 1201(a) (2014), by way of Vermont's "deferred sentence"

statute, see Vt. Stat. Ann. tit. 13, § 7041 (2014), is a

"conviction" within the meaning of the first paragraph of G. L.

c. 90, § 22 (c).2 If so, the disposition of the plaintiff's 2014

Vermont DUI charge by way of deferred sentencing under the

Vermont statute was his sixth conviction for operating a vehicle

while under the influence of alcohol, such that the lifetime

revocation of the plaintiff's driver's license is required under

G. L. c. 90, § 24 (1) (c) (3 3/4).3

The Registrar of Motor Vehicles (registrar) determined that

the plaintiff's 2014 Vermont DUI required lifetime revocation of

his license, and the registrar ordered it revoked. The

2 Although these Vermont statutes have been amended since
the time of the plaintiff's arrest in 2014, the relevant
portions of the statutes have not substantively changed. See
Vt. Stat. Ann. tit. 23, § 1201(a) (Supp. 2022), and Vt. Stat.
Ann. tit. 13, § 7041 (Supp. 2022).

3 Unlike the Massachusetts procedure under G. L. c. 90,
§ 24D, under which certain first offense charges of operating
while under the influence may be continued without a finding,
and the defendant placed on probation with conditions for
alcohol education and, if necessary, alcohol treatment and
rehabilitation, with the possibility of ultimate dismissal of
the charge, the Vermont deferred sentence procedure is not
limited to first offenses.
3

plaintiff appealed the registrar's decision to the Board of

Appeal on Motor Vehicle Liability Policies and Bonds (board),

which affirmed it. The plaintiff then filed a complaint for

judicial review of the board's decision in the Superior Court.

See G. L. c. 40A, § 14. On cross motions for judgment on the

pleadings, a Superior Court judge denied the plaintiff's motion

and allowed the board's motion, and judgment entered dismissing

the plaintiff's complaint. The plaintiff has filed this appeal

challenging the judgment of the Superior Court. We affirm.

Background. The plaintiff, Richard L. Desautels, is a

Massachusetts resident and has been a licensed driver in

Massachusetts since 1992. In the 1970s, he was convicted of DUI

four times in Vermont. In 1998, he was charged with operating a

motor vehicle while under the influence of intoxicating liquor

(OUI) in Massachusetts, which resulted in a disposition of a

"continuance without a finding" as provided for by G. L. c. 90,

§ 24D, in cases of a first conviction of OUI. (Under this

statute, if the defendant complies with conditions of probation,

the case is dismissed. See G. L. c. 90, § 24 [1] [a] [1],

twelfth par.)

On October 17, 2014, in Vermont, the plaintiff was charged

with the Vermont crime of grossly negligent operation, see Vt.
4

Stat. Ann. tit. 23, § 1091(b) (2014),4 and, once again, with the

Vermont crime of DUI.

On March 2, 2015, under a plea agreement, the plaintiff

pleaded guilty to grossly negligent operation, but the DUI

charge was disposed of under Vermont's deferred sentence

statute. Vt. Stat. Ann. tit. 13, § 7041. As relevant here,

§ 7041(a) provides that

"[u]pon an adjudication of guilt and after the filing of a
presentence investigation report, the court may defer
sentencing and place the respondent on probation upon such
terms and conditions as it may require if a written
agreement concerning the deferring of sentence is entered
into between the State's Attorney and the respondent and
filed with the clerk of the court."

The plaintiff's Vermont charges, and the dispositions

thereof, were not immediately reported to the registry, as they

are apparently supposed to be under the interstate compact on

motor vehicle violations (interstate compact), to which

Massachusetts and Vermont are both parties, see G. L. c. 90,

§ 30B; Vt. Stat. Ann. tit. 23, §§ 3901 et seq., because the

plaintiff is licensed to drive in Massachusetts. The registry

is required to maintain a record of convictions of motor vehicle

4 This offense is referred to variously throughout the
record as "reckless driving," "grossly negligent operation,"
"GN," and "GNO." There does not appear to be a "reckless
driving" offense in Vermont, so it appears that the offense with
which the plaintiff was charged was "grossly negligent
operation." See Vt. Stat. Ann. tit. 23, § 1091(b).
5

violations in a licensee's Massachusetts driving history. G. L.

c. 90, § 30, first par.

The Vermont DUI convictions from the 1970s did not post to

the plaintiff's Massachusetts driving history with the registry

until 2020. The 2014 grossly negligent operation conviction was

reported to the registry by the Vermont Department of Motor

Vehicles (DMV) and was posted to the plaintiff's registry

driving history in 2020, at which point the registry suspended

the plaintiff's Massachusetts driver's license for sixty days

under G. L. c. 90, § 22 (c), which requires such suspension when

a person is convicted of certain out-of-State motor vehicle

violations.

However, the registry did not receive any information from

the Vermont DMV regarding the 2014 DUI charge and disposition.

The registry became aware of the 2014 DUI when the plaintiff

attempted to reinstate his driver's license after the sixty-day

suspension for his Vermont grossly negligent operation

conviction and provided documents (including a notice of plea

agreement and an expungement order) reflecting the DUI charge

and the deferred sentence.

After receiving these documents, the registrar concluded

that, in light of his prior DUI and OUI convictions, the 2014

Vermont DUI required a lifetime revocation of the plaintiff's

driver's license under G. L. c. 90, § 24 (1) (c) (3 3/4).
6

Discussion. General Laws c. 90, § 24 (1) (c) (3 3/4),

provides that a lifetime revocation must be imposed by the

registry when one is convicted of operating a motor vehicle

while under the influence pursuant to G. L. c. 90,

§ 24 (1) (a) (1), if the person convicted

"has been previously convicted of or assigned to an alcohol
or controlled substance education, treatment or
rehabilitation program by a court of the commonwealth or
any other jurisdiction because of a like violation four or
more times preceding the date of the commission of the
offense for which such person has been convicted . . . ." 5,6

5 Section 24 (1) (c) (3 3/4) states that it applies when
one's license is revoked under G. L. c. 90, § 24 (1) (b). That
provision in turn requires revocation of one's license following
a conviction under § 24 (1) (a) (1), which is the section
criminalizing OUI. To the extent the parties argue that
revocation can be triggered by assignment "to an alcohol or
controlled substance education, treatment or rehabilitation
program by a court of the commonwealth or any other jurisdiction
because of a like violation," they are mistaken. That language
applies to the prior predicate offenses, not to the offense that
triggers the revocation. G. L. c. 90, § 24 (1) (c).

6 In fact, it is undisputed that the plaintiff "has been
previously convicted of or assigned to an alcohol or controlled
substance education, treatment or rehabilitation program by a
court," five times prior to the 2014 Vermont DUI. According to
the board, his fifth conviction, which occurred in 1998, did not
result in a lifetime license revocation because, prior to 2002,
the four previous convictions had to occur within a period of
ten years of the most recent violation in order to result in a
lifetime revocation, see G. L. c. 90, § 24 (1), as appearing in
St. 1994, c. 25, § 3, and the plaintiff's previous DUI
convictions had all taken place in the 1970s. The current
version of the law requires a lifetime license revocation if
there have been four previous convictions or program assignments
at any point, with no time limitation. G. L. c. 90,
§ 24 (1) (c) (3 3/4), as amended by St. 2002, c. 302, § 1.
Neither party raises any issue with respect to this reasoning.
7

As to out-of-State convictions, the first paragraph of G. L.

c. 90, § 22 (c), provides:

"If the registrar receives official notice, in any form
which the registrar deems appropriate, including electronic
transmissions, that a resident of the commonwealth or any
person licensed to operate a motor vehicle under the
provisions of this chapter has been convicted in another
state, country or jurisdiction of a motor vehicle
violation, the registrar shall give the same effect to said
conviction for the purposes of suspension, revocation,
limitation or reinstatement of the right to operate a motor
vehicle, as if said violation had occurred in the
commonwealth."

As the Supreme Judicial Court said in Commonwealth v. Lee, 466

Mass. 1028, 1031 (2013), § 22 (c) "requires the registrar to

account for all OUI convictions, whether in-State or out-of-

State, and to treat them the same."7

7 Both parties agree that treating the 2014 Vermont DUI "as
if said violation had occurred in the commonwealth," G. L.
c. 90, § 22 (c), would be to treat it as an OUI. We note that
neither the text of the statute, nor the cases construing it,
have articulated a general test for when an out-of-State
conviction for violations of criminal laws that may differ in
some way from similar Massachusetts criminal laws must be
treated under § 22 (c) as though they were a violation of a
Massachusetts criminal statute. Although the parties variously
propose that the laws must be "substantially similar," or a
"like offense," those terms derive from other statutes. See
G. L. c. 90, § 30B (III) (c) (discussing "offenses or violations
of a substantially similar nature"); G. L. c. 90, § 24
(providing different penalties depending on how many prior
convictions or program assignments defendant had for "like
offense[s]"). In any event, given Lee and the fact that the
plaintiff does not argue that a conviction under the Vermont DUI
statute should not be treated under § 22 (c) as a conviction
under the Massachusetts OUI statute, we need not decide the
issue.
8

The question before us is whether there was substantial

evidence before the registry that the plaintiff "has been

convicted," G. L. c. 90, § 22 (c), of the 2014 Vermont DUI

charge where it was disposed of under Vermont's deferred

sentencing regime, Vt. Stat. Ann. tit. 13, § 7041. See G. L.

c. 30A, § 14 (7) (e) (providing that court may review agency

adjudication to determine if it was "[u]nsupported by

substantial evidence"). See also Merisme v. Board of Appeals on

Motor Vehicle Liab. Policies & Bonds, 27 Mass. App. Ct. 470, 474

(1989) (stating that board's decision must "be supported by

'substantial evidence' as set out in G. L. c. 30A,

§ 14 [7] [e]"). We review the legal question of what amounts to

a "conviction" under G. L. c. 90, § 22 (c), de novo. We agree

with the parties that the word "conviction" includes at least an

adjudication of guilt of a criminal offense by a court of

competent jurisdiction of one of the United States, which is all

we need decide about it for purposes of this case. The

Legislature has defined "conviction" for OUI purposes as

including a person who "pleaded guilty or nolo contendere or was

found or adjudged guilty" since 1936, see G. L. c. 90, § 24 (d),

as appearing in St. 1936, c. 434, § 1, and surely understood the

term the same way in 1962 when it first added the language that
9

eventually became G. L. c. 90, § 22 (c), in 1962. See St. 1962,

c. 261.8

1. Official notice. Before turning to the substantial

evidence question, we note that the plaintiff argued for the

first time at oral argument that the registrar did not "receive

official notice" of the disposition of the Vermont DUI charge,

see G. L. c. 90, § 22 (c), and that, therefore, the registry may

not revoke the plaintiff's license on the basis of the

disposition of that charge even if it is a "conviction" within

the meaning of § 22 (c).

Because this claim was raised only at argument and not in

the plaintiff's brief, it is waived. See Warner-Lambert Co. v.

Execuquest Corp., 427 Mass. 46, 50 n.7 (1998); Mass. R. A. P.

16 (9) (A), as appearing in 481 Mass. 1628 (2019) ("The

appellate court need not pass upon questions or issues not

argued in the brief"). In any event, were we to reach its

merits it would be of no avail to the plaintiff.

8 The board's argument that the definition of conviction in
G. L. c. 90, § 24 (1) (d), is applicable is not correct as that
definition does not apply to G. L. c. 90, § 22. The plaintiff
argues that the applicable definition is that found in the
interstate compact. G. L. c. 90, § 30B (I) (c). The
relationship between the compact and § 22 (c) is not clear to
us, nor has the issue been briefed by the parties. In any
event, we need not and do not decide whether the plaintiff's
contention is correct.
10

It appears that no Vermont agency ever gave any notice of

the DUI charge or disposition to the registry. As described

above, the Massachusetts registry became aware of the conviction

when the plaintiff appeared at a hearing to reinstate his

driver's license after the sixty-day suspension attendant upon

the Vermont grossly negligent operation conviction, which was

reported by the Vermont DMV to the Massachusetts registry. At

that hearing, the plaintiff provided documents relevant to the

2014 DUI, including the "Notice of Plea Agreement" and "Order to

Expunge Deferred."

General Laws c. 90, § 22 (c), allows the registry to act on

the basis of receipt of "official notice, in any form which the

registrar deems appropriate" (emphasis added). Given the safety

concerns that animate the law in question, we think the purpose

behind giving the registrar this broad discretion with respect

determining what amounts to official notice must have been to

allow her to act in what she determined were the best interests

of the drivers, bicyclists, and pedestrians of the Commonwealth.

We thus think the registrar acted within her discretion in

concluding that, once the registry had received copies of the

official documents submitted by the plaintiff himself, it had

"received official notice" of the charge and its disposition.

Indeed, the Legislature could not have intended to require a

registrar to ignore her actual knowledge, based on copies of
11

court documents provided by the plaintiff, of the disposition of

a charge of driving under the influence that could trigger a

mandatory license revocation, simply because of a failure of

another State's bureaucracy to have itself sent those documents.

2. Substantial evidence of a conviction. We turn, then,

to the argument, raised by the plaintiff in his brief, that the

registry lacked substantial evidence that disposition of his

2014 Vermont DUI charge by way of "deferred sentencing" amounts

to a "conviction" under G. L. c. 90, § 22 (c).9

The DUI charge in Vermont was disposed of under Vermont's

deferred sentence statute. Vt. Stat. Ann. tit. 13, § 7041. As

an initial matter, the statute setting out the deferred

sentencing procedure states that, "[u]pon an adjudication of

guilt," the defendant will be provided with conditions of

probation, which, if successfully completed, will result in

expungement. Id. at § 7041(a). This indicates that the

statutory procedure requires an adjudication of guilt, which

would bring it within the meaning of the term "conviction" in

G. L. c. 90, § 22 (c).

9 The board's decision actually concludes in one paragraph
that the disposition is a conviction, and in the next that it is
"substantially similar" to the continuance without a finding
disposition authorized in G. L. c. 90, § 24D. As described in
the text, this latter conclusion is irrelevant to the question
that was actually before the registry.
12

Beyond the text of the Vermont statute, we have in the

record before us some documents with respect to the plaintiff's

own case. One is a Vermont "Notice of Plea Agreement" with

respect to both the grossly negligent operation charge and the

DUI. It is signed by the prosecutor and the defense attorney,

but not by a judge. Under the grossly negligent operation

charge, in addition to describing a fine, the word "guilty" is

circled where the only options are "guilty" or "nolo

contendere." Under the driving under the influence charge, the

sentence is described as "deferred," and neither "guilty" nor

"nolo contendere" is circled.

Another document is a Vermont "Deferred Sentence Probation

Order" dated March 2, 2015, the date on which both charges were

disposed of, which is signed by a judge, and which begins: "To

the Commissioner of Corrections: The above named defendant was

convicted and sentenced as follows . . . ."

Finally, there is also an order of expungement which states

that "[p]ursuant to 13 V.S.A. § 7041(e) and based on the

Respondent's successful completion of the terms of probation and

of the deferred sentence agreement including full payment of

restitution, the adjudication of guilt in the above named

case(s) is hereby stricken and the respondent is hereby

DISCHARGED."
13

Even if there is some doubt about the matter, we think the

references to an adjudication of guilt in the Vermont statute

and to "conviction" and "the adjudication of guilt" in court

orders from the plaintiff's case suffice to provide substantial

evidence supporting the registrar's conclusion that the

disposition of the plaintiff's Vermont charge was a conviction

within the meaning of G. L. c. 90, § 22 (c).

The plaintiff does assert that if there was an adjudication

of guilt, it was "reversed." In fact, though, as he recognizes,

the expungement order does not state that the adjudication of

guilt is reversed, but merely that it is "stricken."

As described above, the registrar must "give the same

effect to said conviction for the purposes of suspension,

revocation, limitation or reinstatement of the right to operate

a motor vehicle, as if said violation had occurred in the

commonwealth." G. L. c. 90, § 22 (c). And, consistent with the

safety goals that underlie G. L. c. 90, a Massachusetts

conviction of OUI cannot be expunged. See G. L. c. 276,

§ 100J (9) (excluding from eligibility for expungement "any

offense in violation of [§] 24 of [c.] 90"). Thus where, as

here, an out-of-State expungement of a conviction occurs solely

by operation of law, and involves no question of the propriety

of the conviction, § 22 (c) requires that, despite the

expungement, the Massachusetts legal system treat it as a
14

conviction for the purposes of suspension, revocation,

limitation or reinstatement of the right to operate a motor

vehicle.

Consequently, the judgment is affirmed.

So ordered.