On Feb 11, 2010 the massachuetts appeals court in BRESTEN vs. BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS 76 Mass.App.Ct. 263 (2010) upheld the suspension of a Massachusetts drivers license for an infraction that occurred out of state.
In reviewing the facts the court stated “On April 16, 2007, the plaintiff, a Massachusetts licensed driver, pleaded guilty to the offense of “driving while ability impaired” (DWAI) in Colorado and, as penalty therefor, was ordered to pay a fine. Colo. Rev. Stat. § 42-4-1301(1)(b), (g) (2004). [FN1] A conviction pursuant to subsection (b) of the Colorado statute does not carry the penalty of the loss of driving rights in Colorado . This conviction, however, was reported to the Massachusetts registrar pursuant to the interstate compact on motor vehicle convictions. G. L. c. 90, § 30B II. [FN2]
On March 18, 2008, acting pursuant to G. L. c. 90, § 22(c), as amended by St. 1990, c. 256, § 1, the registrar notified the plaintiff of her intention to revoke his driver’s license for one year because of his Colorado conviction. She then sent a revocation notice, dated June 11, 2008, that the revocation was effective as of June 21, 2008.
Discussion. 1. The interstate compact. The plaintiff asserts that the interstate compact applies only if he is convicted of an offense that is comparable to a Massachusetts offense. He argues that the Colorado conviction of driving while alcohol impaired does not have a counterpart in the Massachusetts statutory scheme. Although we agree that the compact requires a substantially similar conviction, we disagree with his construction of the relevant offenses.
The interstate compact provides that the registrar must give the same effect to conduct reported as if “such conduct had occurred in the home state.” G. L. c. 90, § 30B III(a). Thus, if a driver is convicted for “driving a motor vehicle while under the influence of intoxicating liquor . . . to a degree that renders the driver incapable of safely driving a motor vehicle,” then the registrar must give the same effect to out-of-State motor vehicle convictions as if the offense had occurred in Massachusetts. G. L. c. 90, § 30B III (a)(2). Moreover, under § 30B III (c), “[i]f the laws of a party [S]tate do not provide for offenses or violations denominated or described in precisely the words employed in subdivision (a) of this subsection, such party [S]tate shall construe the denominations and descriptions appearing in the subdivision (a) hereof as being applicable to and identifying those offenses or violations of a substantially similar nature, and the laws of such party [S]tate shall contain such provisions as may be necessary to ensure that full force and effect is given to this subsection.”
The notice of revocation to the plaintiff indicated that the revocation was due to the conviction for driving while intoxicated in Colorado . This conviction, if substantially similar to the Massachusetts offense, rendered the plaintiff subject to the statutory scheme of the interstate compact. We turn to the relevant statutes to determine whether the provisions are substantially similar.
b. The Massachusetts statute. To prove the Massachusetts offense of OUI, the Commonwealth must prove beyond a reasonable doubt that the defendant’s consumption of alcohol diminished the defendant’s ability to operate a motor vehicle safely. G. L. c. 90, § 24(1)(a)(1). That statute provides in pertinent part: “Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue shall be punished . . . .”
In a prosecution of a violation of this statute, the Commonwealth “must prove beyond a reasonable doubt that the defendant’s consumption of alcohol diminished the defendant’s ability to operate a motor vehicle safely. The Commonwealth need not prove that the defendant actually drove in an unsafe or erratic manner, but it must prove a diminished capacity to operate safely.” Commonwealth v. Connolly, 394 Mass. 169, 173 (1985) (emphasis original). In Connolly, the court held that the statute’s “legislative purpose [is] to protect the public from drivers whose judgment, alertness, and ability to respond promptly and effectively to unexpected emergencies are diminished because of the consumption of alcohol.” Id. at 172-173.
Therefore, we think that the Colorado offense of DWAI is substantially similar to the Massachusetts offense of OUI because, for a conviction, both statutes require proof that the motor vehicle *269 operator’s ability for clear judgment, physical control, or due care is affected even slightly by alcohol.
The implications for out of state operator actions and the impact on their Massachusetts issued licenses are greatly affected by the case. In Colorado there was no suspension provision in the statute like the one in Massachusetts . How far the registry will be able to carry this is an interesting question though.
Attorney Ronald A. Sellon