On 4/29/2010, the Appeals court ruled in COMMONWEALTH vs. KRISTIAN A. CHOWN 76 Mass.App.Ct. 684 (2010) when a “non-resident” by statute becomes a resident for the purposes of G.L. 90 §10 the Unlicensed operator statute.
The court, in reviewing the fact,s stated “the defendant was arrested for operating without a driver’s license. The officer informed him that he was also being charged with not having his registration in possession and speeding. The defendant’s vehicle needed to be secured because of its location in a public lot with a missing rear window. Tynan conducted an inventory search of the vehicle as per the police department’s inventory policy. During the search, he noticed a strong odor of marijuana emanating from the back seat. There he discovered a backpack containing drugs. He also saw a “dump sticker” for the Barnstable transfer station affixed to the window of the defendant’s truck.
Of concern here are G. L. c. 90, § 3 (vehicles of nonresidents), § 8 (licenses to operate), and § 10 (operation of motor vehicles). Section 10 requires all persons operating motor vehicles in Massachusetts to be licensed, and failure to produce a valid license during a traffic stop can provide probable cause for an arrest. See Commonwealth v. Lantigua, 38 Mass. App. Ct. 526, 528 (1995), citing G. L. c. 90, §§ 10 & 21.
For our purposes, § 10, like § 8, distinguishes between residents and nonresidents. Very simply, residents need a Massachusetts license to drive; nonresidents do not so long as they possess a valid out-of-State license. Needless to say, new residents must become licensed in Massachusetts.
While the nonresident exception in § 10 merely permits nonresidents to drive in the State without a Massachusetts license, § 3 permits them to operate their out-of-State registered vehicles in Massachusetts, subject to insurance requirements. In essence, § 3 relieves nonresidents who work, attend school, or own property in Massachusetts from having to register their cars in-State, *689 so long as they do not become residents. It does not, however, trump the requirement in § 10 that an individual who becomes a legal resident of Massachusetts must obtain an in-State license. See Jenkins v. North Shore Dye House, Inc., 277 Mass. 440, 443 (1931) (“[Section 3] cannot . . . be construed to mean that one who has been a nonresident but who has ceased to be a nonresident because he has removed his residence from another State or country to this Commonwealth is entitled to the immunity extended to a nonresident”).
Section 8 covers the application and examination requirements for obtaining a Massachusetts license. There is no exception for new residents that allows them to drive under their out-of-State licenses. In fact, G. L. c. 90, § 8, as amended through St. 2002, c. 313, § 2, provides in pertinent part: “If for any reason the registrar or his agents are unable to examine an applicant for a license promptly, the applicant [so long as s/he is duly licensed elsewhere] may be issued a receipt . . . [which] shall be carried in lieu of the license” for a period of up to sixty days.
The effect of the trial court’s reading of § 3 is that, at least for purposes of a police officer’s request to a driver, the production of a facially valid out-of-State license and registration is conclusive on the issue of residency. This stretches the nonresident exception under § 3 to the point where it overwhelms the requirements for residents under §§ 8 and 10. There is no question that § 3 allows a nonresident to acquire “a regular place of abode or business or employment in the commonwealth” and remain a nonresident; the question is whether the police can make a reasonable determination in the field that an individual has crossed the line from nonresident to resident.
Language from Commonwealth v. Caceres, 413 Mass. 749, 753 (1992), is instructive, if not controlling. “The decision not to permit Calderon [the passenger] to drive the vehicle away was based on the trooper’s reasonable belief that Calderon was not authorized to operate the vehicle in Massachusetts. The uncontroverted evidence warranted an objectively reasonable belief that Calderon had been in the continental United States for three years and that Calderon should, but did not, have a license to operate other than the Puerto Rico license.”
Like the trooper in Caceres, the police officer here possessed *690 a reasonable basis to conclude that the defendant resided in Massachusetts, requiring a local license. Indeed, it appears almost inescapable that the defendant was a resident. From the perspective of Sergeant Tynan, the defendant had lived and worked for years in Massachusetts, possessed a local driving record dating back to 1989, had at one point a Massachusetts license, drove a truck with a sticker on it for the local dump, and said he was planning on going the following day to the Registry to obtain a license.
Under these circumstances, the officer was warranted in believing the defendant was a resident, requiring a local license. Not having one, he was subject to arrest. Since the sergeant had probable cause to arrest the defendant, the evidence seized is admissible.”
Those in “border” communities in Massachusetts likely run into this more often. But the case is a good illustration of how a blurred line of resident/non-resident can be resolved under the statute.
Attorney Ronald A. Sellon