The defendant admitted facts sufficient to warrant a guilty finding on a complaint alleging negligent operation of a motor vehicle causing the death of another (misdemeanor vehicular homicide). See G. L. c. 90, § 24G (b). Over the Commonwealth’s objection, a judge in the District Court continued the case without a finding. The Commonwealth filed a petition for relief under G. L. c. 211, § 3, alleging that the particular disposition of this case is expressly precluded by § 24G (a). A single justice reserved and reported the case, without decision. We hold that a judge is without authority to continue without a finding a case of misdemeanor vehicular homicide, and order that the disposition be vacated and the case restored to the trial list.
General Laws c. 90, § 24G (a), inserted by St. 1982, c. 373, § 9, and amended by St. 1982, c. 376, § 1, defines the crime of felony vehicular homicide as (1) the operation of a motor vehicle, (2) in certain places, (3) either (a) with a percentage, by weight, of blood alcohol of 0.08 or greater,*
Unlike § 24G (b), § 24G (a) contains express limitations on disposition, as follows:
“The sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this subsection be eligible for probation, parole, or furlough or receive any deduction from his sentence until such person has served at least one year of such sentence; provided, however, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subsection a temporary release in the custody of*300 an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to a work release program. Prosecutions commenced under this section shall neither be continued without a finding nor placed on file.
“The provisions of section eighty-seven of chapter two hundred and seventy-six, shall not apply to any person charged with a violation of this subsection.” (Emphases added).
The sole question presented is whether the sentence in G. L. c. 90, § 24G (a), that precludes disposition by continuance without a finding also applies to misdemeanor vehicular homicide under § 24G (b).
2. Discussion. The Commonwealth argues that the plain language of the statute prohibits a continuance without a finding for both felony and misdemeanor vehicular homicide under § 24G. The defendant contends that the statutory language is ambiguous, and therefore we may look to the legislative history of § 24G to resolve the ambiguity. He argues that the legislative history supports the view that the Legislature did not intend to prohibit a continuance without a finding in cases of misdemeanor vehicular homicide.
“The general and familiar rule is that a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.” Hanlon v. Rollins,
a. Plain meaning. The words “section” and “subsection,” both used in subsection (a) of § 24G, are different words with different meaning. See generally Champigny v. Commonwealth,
Applying the ordinary meanings to the words “subsection” and “section” as they appear in § 24G {a), the words “this subsection” mean subsection (a) of § 24G, and the words “this section” must mean something different. They reasonably can only mean § 24G of G. L. c. 90 in its entirety, the statutory section of which subsection (a) is a part. Thus, persons convicted under subsection (a) of § 24G, but not subsection (b) of § 24G, are not eligible for probation, parole, furlough (with certain bereavement and medical exceptions), or work release until they shall have served at least one year of their sentence. In addition, persons convicted under § 24G (a) may not be sentenced to less than one year, nor may their sentence be suspended; and they may not receive a disposition of pretrial probation without a change of plea (see G. L. c. 276, § 87) that leads to dismissal.
There is no merit to the defendant’s claim that the words in question are plausibly ambiguous. Although there is no prohibition in § 24G (b) against continuances without a finding or placing a case on file, the sentence in § 24G (a) on which we focus our attention prohibits such dispositions for all prosecutions under § 24G, which would include prosecutions for misdemeanor vehicular homicide under § 24G (b).
The defendant’s reliance on one appellate decision, two memoranda of a former Chief Justice of the District Court Department, and two practice guides in support of his argument that, because reasonably well-informed persons have understood § 24G to permit a continuance without a finding in cases of misdemeanor vehicular homicide it must be ambiguous, is misplaced. Commonwealth v. Angelo Todesca Corp.,
The memoranda of a former Chief Justice of the District Court Department were issued twenty-one years apart, and in the more recent memorandum, dated December 11, 2003, the Chief Justice concluded that his earlier memorandum, which took the view that a continuance without a finding is a disposition permitted under § 24G (b), was erroneous. We do not view these memoranda as simultaneously inconsistent interpretations that suggest ambiguity, but rather an instance where one person, whose determination on the matter is not precedential, concluded that his earlier views on the subject were erroneous. “An incorrect interpretation of a statute ... is not entitled to deference,” Kszepka’s Case,
Although the practice guides cited by the defendant could be construed by their silence on the subject to suggest that a continu
Finally, the defendant cites the early versions of G. L. c. 269, § 10 (a), as appearing in St. 1974, c. 649, § 2, which contain a similar limitation against continuances without a finding and placing cases on file, but which he contends use the word “section” to denote subsection (a) of § 10. A 1990 amendment substituted the word “subsection” for “section” in § 10 (a). St. 1990, c. 511, § 2. We need not engage in an analysis of the pre1990 versions of that statute because they present an entirely different problem of statutory interpretation. It is the interplay, or context, in which the Legislature has used the words “section” and “subsection” in § 24G (a) that determines the result in this case. Subsection (a) of § 24G uses both words, “section” and “subsection,” in the same statutory subsection, thereby implying different meanings, as we have discussed. The Legislature did not use both words in the early versions of subsection (a) of G. L. c. 269, § 10. The context of the two statutes is significantly different.
The defendant has cited no persuasive authority in support of his assertion that the statute is ambiguous. We_conclude that there is no ambiguity in the words “this section” or “this subsection,” or in the interplay between them, as they appear in § 24G (a). The context created by § 24G (a) requires that they be interpreted as having different meanings. We further conclude that, in the context of § 24G, the plain meaning of the sentence, “Prosecutions commenced under this section shall neither be continued without a finding nor placed on file,” appearing in § 24G (a), refers to all prosecutions commenced under § 24G, including those commenced under § 24G (b).
b. Resulting interpretation. The defendant argues that a literal interpretation of the words “this section” as they appear in
Contrary to the defendant’s assertion, a literal interpretation of § 24G (a) is not in conflict with our decision in Commonwealth v. Sebastian S.,
Indeed, the defendant’s interpretation would lead to an absurd result. The “drunk driving” statute, G. L. c. 90, § 24 (1) (a) (1), eighth par., contains essentially the same limitation against continuances without a finding and placing a case on file as that found in § 24G (a), except for dispositions under § 24D (a disposition that may be available to offenders who have not been “convicted ... or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program because of a single like offense” within ten years of the current offense). Under the defendant’s interpretation of § 24G (b), a subsequent offender who, driving while intoxicated, caused the death of another person would be eligible to have his case disposed of by a continuance without a finding. However, if the same intoxicated driver caused no injury but was merely intoxicated, he would not be eligible for a continuance without a finding under § 24 (1) (a) (1), eighth par.
We conclude that the plain meaning of the words “this section,” as they appear in § 24G (a), does not produce an absurd or unworkable result.
c. Legislative history. Although we have concluded that the words of the statute are not ambiguous, “we should not accept the literal meaning of the words of a statute without regard for that statute’s purpose and history.” Sterilite Corp. v. Continental Cas. Co.,
The defendant acknowledges that the original enactment of G. L. c. 90, § 24G, which created only misdemeanor vehicular homicide based on either operation of a motor vehicle while under the influence of intoxicating liquor or drugs, or negligent operation, was a legislative “middle ground between the felony of manslaughter and the misdemeanor of driving so as to endanger” or while intoxicated. Commonwealth v. Jones,
Finally, we would have to rewrite § 24G to accomplish what the defendant alternatively contends is the intent of the Legislature, namely, allowing cases of negligent operation vehicular homicide to be disposed of by a continuance without a finding
For the foregoing reasons, we vacate the disposition imposed in the District Court and remand the case to be restored to the list of cases to be tried.
So ordered.
Notes
The defendant’s admission to facts sufficient to warrant a guilty finding was conditioned on a disposition of a continuance without a finding of guilt.
This alternative element of the offense was added by St. 2003, c. 28, § 21.
There is no claim that the words “this section,” as they appear in G. L. c. 90, § 24G (a), were inserted erroneously. When subsections (a) and (b) of § 24G were enacted by St. 1982, c. 373, § 9, there were omissions and errors that were corrected within four days by St. 1982, c. 376, §§ 1, 2. The words “this subsection” and “this section” were not among the words and omissions corrected.
While these dispositions are not available to persons convicted under
Such a result is not available in prosecutions under G. L. c. 90, § 24G {a), where the provisions of G. L. c. 276, § 87, are expressly made inapplicable.
General Laws c. 90, § 24 (1) (a) (1), eighth par., was inserted by St. 1982, c. 373, § 2, the same legislation that enacted G. L. c. 90, § 24G (a).