Instruction 5.200, Criminal Model Jury Instructions for Use in the District Court

OPERATING AFTER SUSPENSION OR REVOCATION OF LICENSE

G.L. c. 90, § 23

I. OPERATING AFTER SUSPENSION OR REVOCATION OF LICENSE

(G.L. c. 90, § 23, ¶ 1)

The defendant is charged with having operated a motor vehicle after

(his) (her) (driver’s license) (right to drive in Massachusetts) had been

(suspended) (revoked).

In order to prove the defendant guilty of this offense, the

Commonwealth must prove three things beyond a reasonable doubt:

First: That the defendant operated a motor vehicle;

Second: That at the time the defendant was operating a motor

vehicle (his) (her) (driver’s license) (right to drive in Massachusetts) had

been (suspended) (revoked); and

Third: That the defendant

If relevant to evidence. or an agent of the defendant, such as a

household member or employer

had received notice that (his) (her) (driver’s license) (right to drive in

Massachusetts) had been or was about to be (suspended) (revoked).

See Instruction 3.200 (Operation of a Motor Vehicle).

II. OPERATING AFTER SUSPENSION OR REVOCATION OF LICENSE

BECAUSE OF CERTAIN ALCOHOL-RELATED OFFENSES

(G.L. c. 90, § 23, ¶ 2)

The defendant is charged with having operated a motor vehicle after

(his) (her) right to operate in Massachusetts had been (suspended)

(revoked) (because of a violation of Section 24[1][a]) (pursuant to section

24D) (pursuant to section 24E) (pursuant to section 24G) (pursuant to

section 24L) (pursuant to section 24N) of chapter 90 of our General Laws.

In order to prove the defendant guilty of this offense, the

Commonwealth must prove four things beyond a reasonable doubt:

First: That the defendant operated a motor vehicle;

Second: That at the time the defendant was operating a motor

vehicle (his) (her) right to operate in Massachusetts had been revoked;

Third: That the defendant’s right to operate was suspended or

revoked pursuant to (a violation of section 24[1][a]) (section 24D) (section

24E) (section 24G) (section 24L) (section 24N) of chapter 90 of our General

Laws; and

Fourth: That the defendant

If relevant to evidence. or an agent of the defendant, such as a

household member or employer

had received notice that (his) (her) right to operate in Massachusetts had

been or was about to be (suspended) (revoked).

Commonwealth v. Groden, 26 Mass. App. Ct. 1024, 1025-26 (1989) (statute does not violate ex post

facto clause).

See Instruction 3.200 (Operation of a Motor Vehicle).

SUPPLEMENTAL INSTRUCTIONS

1. Proof of RMV-initiated suspension or revocation. The Commonwealth

is required to prove beyond a reasonable doubt that the

defendant, or some agent of the defendant’s such as a

household member or employer, received notice from the

Registrar of Motor Vehicles that the defendant’s license or right

to drive had been, or was about to be, suspended. The

Commonwealth is not required to prove that the defendant had

actual, personal knowledge of the contents of the notice.

You may consider a properly attested copy of the official

records of the Registry of Motor Vehicles as sufficient evidence

that the defendant’s (license) (right to operate a motor vehicle)

was (suspended) (revoked). You are not required to accept it as

sufficient evidence, but you may.

2. Proof of notice of suspension or revocation from RMV business record. You

may consider a properly attested copy of a business record of

the Registry of Motor Vehicles as sufficient evidence that the

Registrar properly notified the defendant of the (suspension)

(revocation) of the defendant’s right to operate a motor vehicle.

You are not required to accept it as sufficient evidence, but you

may.

The judge m ust first determ ine that the record is adm issible as a business record

and that it does not violate the confrontation clause. See Commonwealth v.

Parenteau, 460 Mass. 1, 8-10 (2011).

See Instruction 3.840 on Admissibility of Business Records.

Upon the suspension or revocation of a license or right to operate, the Registrar is

required to send written notice to the driver’s last address as appearing on Registry

records, or to his last and usual residence. G.L. c. 90, § 22(d).

The Com m onwealth m ust prove receipt either of notice of actual suspension or

notice of intent to suspend, Commonwealth v. Crosscup, 369 Mass. 228, 231 & n.2,

239 (1975), and the defendant m ust be perm itted to offer evidence of nonreceipt, id.

at 240. “Receipt” includes receipt by a household m em ber, em ployer or other agent

of the defendant; the Com m onwealth is not required to prove actual personal

knowledge on the defendant's part. Id. at 231, 236, 239.

The Registrar’s proper m ailing of a letter is prim a facie evidence of receipt by the

addressee. Id. at 239-40. See the notes to Instruction 3.260 (Prim a Facie

Evidence).

One who willfully evades notice m ay be deem ed to have received constructive

notice. Commonwealth v. Hampton, 26 Mass. App. Ct. 938, 940, rev. denied, 403

Mass. 1102 (1988). However, see Police Comm’r of Boston v. Robinson, 47 Mass.

App. Ct. 767, 774-75 (1999) (fact that certified letter was unclaim ed, absent evidence

of awareness and ability to claim it or evidence of wilful disregard of it, does not

warrant conclusion that defendant received constructive notice of license

revocation).

3. Proof of court-initiated suspension or revocation. The Commonwealth

is required to prove beyond a reasonable doubt that the

defendant received notice that (his) (her) right to operate had

been (suspended) (revoked).

You may, but are not required to, consider a properly

attested copy of the official records of a court as sufficient

evidence that the defendant’s license was suspended, and that

the Court properly notified the defendant of the (suspension)

(revocation) of the defendant’s right to operate a motor vehicle.

In som e cases, suspension or revocation is initiated not by the Registrar but by the

court or by operation of law. See, e.g., G.L. c. 90, § 24(1)(b) (“conviction of [O.U.I.]

shall revoke the license or right to operate of the person so convicted” unless

defendant is given a § 24D disposition), G.L. c. 90, § 24D (as part of a § 24D

disposition, “the person’s license or right to operate shall be suspended” by judge for

specified duration), and G.L. c. 90, § 24N (where defendant being arraigned has

breathalyzer reading of .08% or higher or has refused breath or blood testing and

police failed to suspend or take license at tim e of stop, judge shall “im m ediately

suspend the defendant’s license or right to operate”).

In such cases, notice m ay also be shown by “evidence dem onstrating that the

suspension was communicated” to the defendant at a court appearance.

Commonwealth v. Oyewole, 470 Mass. 1015, 1016 (2014) (em phasis in the original).

A docket entry that a defendant’s license was suspended but which “does not state

that the defendant was notified of the suspension” is not usfficient. Id.