Lead Opinion
A Superior Court judge reported the question whether G. L. c. 276, § 58A, permits the Commonwealth to seek pretrial detention without bail where a defendant has two prior convictions of operating a motor vehicle while under the influence of alcohol (OUI), G. L. c. 90, § 24, and is charged with OUI, third offense. Because § 58A requires three OUI convictions before a defendant can be so detained, we answer the question in the negative.
Background. In October, 2015, the defendant, Timothy O. Dayton, was charged in the Superior Court with eight motor vehicle violations, including two indictments for OUI, third offense, in relation to two separate incidents pending in the District Court. Each OUI indictment alleged that Dayton had been convicted of OUI twice before — in 1988 and in 1989.
The Commonwealth moved for a dangerousness hearing pursuant to § 58A. The defendant opposed the motion, arguing that
A Superior Court judge initially agreed with the defendant, and denied the Commonwealth’s motion and its motion for reconsideration. However, the Commonwealth sought review by a single justice of this court, pursuant to G. L. c. 211, § 3. The single justice ordered the judge to hold the dangerousness hearing, at the same time acknowledging that the language of § 58A was “unclear” and noting that the judge was “not precluded from reporting the question to the [Appeals Court].”
After hearing, the judge determined that the defendant was dangerous within the meaning of § 58A and ordered him held without bail pending trial. On the defendant’s motion, the judge reported the following question to the Appeals Court:
“Whether a defendant with two prior convictions for [OUI], pursuant to G. L. c. 90, [§ 24 (1) (a) (1)], who is arrested and charged with [OUI], [t]hird [o]ffense, may be held without the right to bail pursuant to G. L. c. 276, [§ 58A (1)].”
Before the question was resolved, the defendant pleaded guilty to the eight pending charges.
Discussion. Primarily, the Commonwealth argues that the OUI clause of § 58A, and our cases discussing it, permit pretrial detention when a defendant has only two prior OUI convictions. The OUI clause of § 58A provides, in relevant part, that the Commonwealth may seek detention based on dangerousness when a defendant is “arrested and charged with ... a third or subsequent conviction for a violation of [G. L. c. 90, § 24].” G. L. c. 276, § 58A (1).
We begin with the language of the statute itself, and “presume, as we must, that the Legislature intended what the words of the statute say.” Commonwealth v. Williamson,
The OUI clause of § 58A is ambiguous. Even setting aside the significant syntactical defects that arise when the OUI clause is read in the entire context of § 58A (1), we do not know what it means to be “arrested and charged with” a “conviction.” G. L. c. 276, § 58A (1). This formulation is at war with itself. Although it hardly needs explication, being “arrested” and “charged” with a crime is wholly distinct from a “conviction” for that crime. See Black’s Law Dictionary 130 (10th ed. 2014) (“arrest” is “the apprehension of someone for the purpose of securing the administration of the law, esp. of bringing that person before a court”); id. at 282 (“charge” is “[a] formal accusation of an offense as a preliminary step to prosecution”); id. at 408 (“conviction” contemplates “the state of having been proved guilty”). Given this ambiguity, we interpret § 58A as requiring three, not two, prior OUI convictions.
In essence, the Commonwealth asks the court to avoid this ambiguity by performing surgery on the OUI clause — removing the words “conviction for a” and leaving behind “arrested and charged with ... a third or subsequent. . . [OUI] violation.” This we cannot do. See, e.g., Commonwealth v. Daley,
The Commonwealth also argues that its interpretation finds support from a comparative reading alongside the other predicate offenses in § 58A, as well as alongside the “escalating penalty structure” for OUI, third offense, in G. L. c. 90, § 24. However, these provisions deepen, rather than resolve, the ambiguity. For instance, the increasing penalties for OUI offenses can just as easily be read as support for the defendant’s position — that only when a defendant reoffends after facing the more severe penalties attached to a third OUI conviction is the defendant dangerous enough to potentially merit pretrial detention. This argument also mistakenly assumes that § 58A is punitive in nature, when instead it presumes a defendant’s innocence and focuses on protecting the public and ensuring the defendant’s appearance at trial. See Commonwealth v. Madden,
Notwithstanding this ambiguity, the Commonwealth points out that this court has, on two prior occasions, appeared to endorse the Commonwealth’s reading of § 58A. See Commonwealth v. Young,
This argument fails. The Commonwealth is correct that we “presume that when the Legislature amends a statute it is ‘aware of the prior state of the law as explicated by the decisions of this court,’ . . . and where it has reenacted statutory language without material change, [the Legislature is] ‘presumed to have adopted the judicial construction put upon it’ ” (citations omitted). Commonwealth v. Colturi,
We are not persuaded by this argument. We have already concluded that the OUI clause of § 58A is ambiguous such that the rule of lenity necessitates an interpretation requiring three, and not two, prior OUI convictions. To then interpret the residual clause as permitting the application of § 58A based on just two prior OUI convictions would defeat the application of the rule of lenity in this case, and we decline to do so. Relatedly, the Commonwealth’s reading of the residual clause conflicts with the principle of statutory construction that where the Legislature used specific language in one part of an enactment (here, the OUI clause), but not in another (here, the residual clause), the language should not be implied where it is not present. See Dodge,
Conclusion. For the reasons discussed, the reported question is answered in the negative.
So ordered.
Notes
Of course, the defendant’s plea rendered the reported question moot because it ended his period of pretrial detention. Regardless, we will answer the question because it is important to the administration of G. L. c. 276, § 58A, and is likely to recur, yet evade appellate review. See Commonwealth v. Murchison.
We recognize that § 58A is not a “criminal” statute in the sense of enumerating the elements of a particular' crime. However, it applies only where someone has been charged with a crime, and it opens the door to a potentially severe curtailment of a defendant’s liberty pending trial. See generally G. L. c. 276, § 58A. See also Commonwealth v. Madden,
Of course, the Legislature is free to change § 58A if it disagrees with our interpretation, and, indeed, revisions for the sake of clarity would be welcome. Cf. Commonwealth v. LeBlanc,
Dissenting Opinion
(dissenting). I disagree with the court’s reading of G. L. c. 276, § 58A (1). As indicated by our prior interpretations of this provision, I do not believe that the statutory language presents the degree of ambiguity suggested by the court.
The relevant portion of the statute provides, “The commonwealth may move, based on dangerousness, for an order of pretrial de
Indeed, this is precisely how this court has interpreted the provision in the past, albeit in dicta. In Commonwealth v. Young,
Because I interpret § 58A (1) to allow for the Commonwealth to seek pretrial detention for individuals arrested and charged with what could be the third or subsequent OUI conviction, I respectfully dissent.