Commonwealth v. Lopez (Lawyers Weekly No. 11-056-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-1207 Appeals Court COMMONWEALTH vs. WILLIAM A. LOPEZ. No. 15-P-1207. Bristol. February 28, 2017. – May 10, 2017. Present: Wolohojian, Milkey, & Shin, JJ. Moped. Motor Vehicle, Moped, License to operate. Complaint received and sworn to in the Fall River Division of the District Court Department on October 22, 2013. The case was heard by Cynthia M. Brackett, J. Kelly M. Costa for the defendant. Brenna C. Ferrick, Assistant District Attorney, for the Commonwealth. MILKEY, J. For operating a moped while his driver’s license was suspended, the defendant was charged with violating G. L. c. 90, § 23, as a subsequent offense. After a bench trial in District Court, he was found guilty of the underlying offense, and he then pleaded guilty to the subsequent offense portion. The judge sentenced him to ninety days in a house of correction. On appeal, the defendant argues that although his operating the moped with a suspended license may have been a violation of G. L. c. 90, § 1B (which allows for fines but no incarceration), as a matter of law, it cannot be a violation of G. L. c. 90, § 23. Because we agree, we reverse his conviction. Background. It is undisputed that the defendant was driving his moped while his driver’s license was suspended. The factual dispute at trial was whether the moped met the statutory definition of a “motorized bicycle” (as the defendant maintained) or whether instead it was a “motorcycle” (as the Commonwealth maintained). See G. L. c. 90, § 1, as amended by St. 1992, c. 286, § 153 (definitions). This distinction potentially mattered because the defendant was charged with violating G. L. c. 90, § 23, as amended by St. 2009, c. 27, § 67, which, by its express terms, applies to “motor vehicles.” Motor vehicles, in turn, are defined to include motorcycles but to exclude motorized bicycles. G. L. c. 90, § 1. Whether a motorized two-wheeled vehicle qualifies as a motorized bicycle generally depends on the size of its engine, the nature of its transmission, and the maximum speed the vehicle is capable of achieving. G. L. c. 90, § 1 (definition of motorized bicycle).[1] Based on the evidence adduced at trial, the judge accepted the defendant’s position that his moped qualified as a motorized bicycle, and the Commonwealth has abandoned any argument to the contrary. With the taxonomic issue […]