Commonwealth v. Lee (Lawyers Weekly No. 10-192-13)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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     SJC‑11443   COMMONWEALTH  vs.  JOSEPH A. LEE.     November 21, 2013.   Motor Vehicle, Operation, License to operate, Operating under the influence.  Registrar of Motor Vehicles, Records, Revocation of license to operate.  Due Process of Law, Suspension of driver’s license.         Following a jury-waived trial, the defendant was convicted of operating a motor vehicle after his license had been suspended for operating while under the influence of alcohol (OUI) pursuant to G. L. c. 90, § 23, third par.  The trial judge sentenced him to sixty days in a house of correction and stayed the sentence pending his direct appeal.  His appeal then proceeded in the Appeals Court, where he raised two issues:  (1) that the admission of certain documents from the registry of motor vehicles (registry) without live testimony from a registry employee violated his right under the Sixth Amendment to the United States Constitution to confront witnesses against him; and (2) that the Commonwealth failed to prove that he had violated G. L. c. 90, § 23, third par., which governs operating a motor vehicle after suspension of a license on the basis of an OUI, and that the judge therefore erred in imposing a sixty-day sentence.  Instead, in the defendant’s view, the judge should have sentenced him pursuant to G. L. c. 90, § 23, first par., which governs operating a motor vehicle after suspension of a license (where the suspension is not based on an OUI) and which provides for a lesser sentence.[1]  The Appeals Court affirmed the conviction.  See Commonwealth v. Lee, 83 Mass. App. Ct. 1109 (2013).  The case is now before this court on further appellate review.   Background.  The defendant’s license was suspended in June, 2009, for a period of two years following two OUI offenses — an OUI offense that occurred in Massachusetts in 2007, and an OUI offense that occurred in New Hampshire in 2008.  In September, 2009, the defendant was operating a motor vehicle in Chelmsford and was stopped by a State police officer.  He was thereafter charged in a complaint with violating G. L. c. 90, § 23.  More specifically, the complaint stated that the defendant had operated a motor vehicle after his license had been suspended “pursuant to a violation of G. L. c. 90, §§ 24(1)(a), 24D, 24E, 24G, 24L or 24N, or of G. L. c. 90B, §§ 8(a), first par., 8A or 8B,” in violation of G. L. c. 90, § 23, […]

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