Moped Operator charged with Operating Under the Influence Second Offense and Operating after Suspension for an OUI related conviction has all charges dismissed at Trial.

• Steven Topazio wrote this January 9, 2020 at 12:20 am

The client was arrested for operating under the influence of alcohol, second offense, after being witnessed by police going through a stop sign and failing to signal while operating a moped.  The client was observed by police with blood shot eyes, slurred speech, being unsteady on his feet and having an odor of alcohol emanated from his breath.  The client’s driver’s license was suspended from a prior OUI, and he was arrested.  Attorney Topazio fought the case arguing that his client was on a moped and the Commonwealth could not prove that a moped was a motor vehicle for purposes of the drunk driving statute.  Attorney Topazio proved that the moped his client was operating had an engine that was less than 49 cc (cubic centimeters).  According to stature, ”Motorized bicycle”, is a pedal bicycle which has a helper motor, or a non-pedal bicycle which has a motor, with a cylinder capacity not exceeding 50 cubic centimeters, an automatic transmission, and which is capable of a maximum speed of no more than thirty miles per hour.

In Massachusetts, it is settled law that an operator of a motorized bicycle or moped can be prosecuted for operating under the influence of liquor, in violation of Massachusetts General Laws Chapter 90, section 24 (1) (a), according to the case of Commonwealth v. Griswold, 17 Mass. App. Ct. 461 (1984), despite the fact that the OUI statute only applies to “motor vehicles,” and even though the statute states that “motor vehicles” shall not include motorized bicycles.

The client was also charged with operating a moped while his driver’s license was suspended, and charged with violating G. L. c. 90, § 23, as a subsequent offense. Although § 23 does not by its terms apply to motorized bicycles, it must be read in conjunction with G. L. c. 90, § 1B, the statute governing “[t]he operation of ‘motorized bicycles’ on the public ways in the Commonwealth.”  That “statute establishes minimum age and licensing standards to ensure that operators ‘are familiar with rules of the road and the safe operation of the vehicle.'”  It also prohibits the operation of a motorized bicycle “on any way by any person not possessing a valid driver’s license or learner’s permit.” G. L. c. 90, § 1B.

Attorney Topazio argued that the fact that operating a motorized bicycle with a suspended license would constitute an express violation of § 1B (as the operation of such a vehicle “by any person not possessing a valid driver’s license or learner’s permit”). He pointed out that the Legislature’s decision to expressly criminalize such conduct in § 1B, and to establish specific, low-level penalties for that conduct, further suggests that the Legislature did not intend indirectly to make it an additional crime under § 23. Commonwealth v Lopez, 91 Mass. App. Ct. 485, (2017). Attorney Topazio convinced the court to accept his interpretation under the rule of lenity, (“when a criminal statute can ‘plausibly be found to be ambiguous,’ the rule of lenity applies, and the court ‘gives the defendant the benefit of the ambiguity'”). Attorney Topazio argued that his client’s operating a motorized bicycle with a suspended license does not constitute a violation of G. L. c. 90, § 23, (operating after suspension).  The Commonwealth agreed with this interpretation and filed a Nolle Prosequi, dismissing all counts.