Operating After Suspension and Unlicensed Operation in Massachusetts (M.G.L. c. 90, §§ 23, 10)

Operating after a license suspension or revocation under M.G.L. c. 90, § 23, and operating without a license under M.G.L. c. 90, § 10, are among the most frequently charged motor vehicle offenses in Massachusetts. Both are misdemeanors. Neither is minor. A suspension that was itself imposed for operating under the influence turns the charge into an aggravated offense with a mandatory minimum jail term. A conviction also adds a further license loss at the Registry of Motor Vehicles. The § 23 offense turns on one question that decides most of these cases: whether the Commonwealth proved that the driver knew the license was suspended.

These charges usually come from an ordinary stop, and they often accompany operating under the influence or other motor vehicle counts. Attorney Serpa defends them across Greater Boston. This page explains the elements, the notice requirement that decides the § 23 charge, how the Commonwealth proves a suspension, the penalties, and the defenses.

Operating After Suspension Under Section 23

Section 23 states three elements. The Commonwealth must prove that the defendant operated a motor vehicle, that the license or right to operate was suspended or revoked at the time, and that the defendant had received notice of the suspension or revocation. Commonwealth v. Royal, 89 Mass. App. Ct. 168, 170 (2016). This offense does not require operation on a public way. It can be committed on private property. Commonwealth v. Murphy, 409 Mass. 665, 667-668 (1991). Notice is the element that most often decides the case, because the Commonwealth most often fails to prove it.

The Notice and Knowledge Requirement

The Commonwealth must prove that the defendant received notice that the license was suspended or revoked. Proof that the Registry mailed a notice is not conclusive by itself. Commonwealth v. Crosscup, 369 Mass. 228, 231-234 (1975). Receipt is what matters, but the Commonwealth does not have to prove that the defendant read the notice. Receipt by a member of the household, or by an agent who handles the mail, is enough. Proper mailing to the address in the Registry records is prima facie evidence that the notice was received. The defendant may rebut that inference with evidence of non receipt. Crosscup, 369 Mass. at 239-240. A driver who never learned of a suspension, because the notice went to an old address or was never delivered, has a real defense that the statute recognizes.

How the Commonwealth Proves the Suspension

The Commonwealth proves the suspension and the notice with documents, and the documents must be admissible. A police officer’s testimony that the license came back suspended after a Registry check is inadmissible hearsay, and a conviction that rested on that testimony was reversed. Commonwealth v. Royal, 89 Mass. App. Ct. 168 (2016); Commonwealth v. Randall, 50 Mass. App. Ct. 26 (2000). The proper proof is a certified Registry driving record, attested under M.G.L. c. 233, § 76. A photocopy of the attestation does not satisfy the statute. Commonwealth v. Deramo, 436 Mass. 40, 46-48 (2002). Where a court ordered the suspension as part of an operating under the influence sentence, a certified copy of the criminal docket can prove both the suspension and notice of it, because the court imposed the loss in the defendant’s presence. Commonwealth v. Oyewole, 84 Mass. App. Ct. 669 (2014); Commonwealth v. Beaulieu, 79 Mass. App. Ct. 100 (2011). The Commonwealth must hold to admissible, properly attested records rather than an officer’s summary.

The Aggravated Offense for an Alcohol Related Suspension

The exposure rises sharply when the suspension was imposed for operating under the influence or a related reason. In that situation the offense adds a fourth element, that the suspension or revocation was imposed under one of the enumerated alcohol related provisions. Commonwealth v. Deramo, 436 Mass. 40, 50 (2002); Commonwealth v. Oyewole, 84 Mass. App. Ct. 669, 672 (2014). The penalty is a fine of not less than $1,000 and not more than $10,000 and imprisonment in a house of correction for not less than 60 days and not more than two and one half years. The 60 day minimum may not be reduced or suspended. There is no eligibility for probation, parole, or furlough until it is served. A mandatory jail term follows a conviction at this level, so the underlying suspension, and the proof that the defendant knew of it, carry real weight.

The Penalties

A plain first offense under § 23, where the suspension was not for an alcohol related reason, is punishable by a fine of not less than $500 and not more than $1,000, or by imprisonment for not more than ten days, or both. The conviction also triggers a further 60 day license suspension at the Registry. A later offense, and a suspension imposed on a person as a habitual traffic offender, carry longer terms. The aggravated alcohol related offense carries the mandatory minimum described above. All of these offenses remain misdemeanors. The aggravated offense is a misdemeanor that still guarantees a jail term, which is why the reason for the underlying suspension matters so much.

Unlicensed Operation Under Section 10

Operating without a license under M.G.L. c. 90, § 10 is a related but distinct offense. The Commonwealth must prove that the defendant operated a motor vehicle, that the operation was on a way, and that the defendant did not hold a valid license issued by the Registrar. Operating on an expired license is unlicensed operation, and a lack of notice that the license had expired is not a defense, because expiration is self executing and requires no notice from the Registry. Watson v. Forbes, 307 Mass. 383 (1940). On the question of licensure, the defendant carries the burden of producing evidence of a valid license. Commonwealth v. Munoz, 384 Mass. 503 (1981). The offense is a misdemeanor. A first offense is punishable by a fine and a short term, and it often ends without incarceration where the driver has since obtained or restored a license.

The Difference Between the Two Offenses

The two statutes require different proof. Operating after suspension under § 23 requires proof that the defendant received notice of the suspension, but it does not require operation on a public way. Commonwealth v. Murphy, 409 Mass. 665 (1991). Unlicensed operation under § 10 requires operation on a way, but it requires no notice, because drivers are charged with knowing the status of their own licenses. A § 23 charge fails without proof of notice. A § 10 charge fails without proof of a public way. The Commonwealth cannot borrow proof from one to fill a gap in the other.

The Model Jury Instructions

The Criminal Model Jury Instructions for Use in the District Court state these offenses. Instruction 5.200 covers operating after suspension or revocation under § 23. It states both the three element basic offense and the four element aggravated offense, and its notes cite the leading cases and the rule that no public way is required. Instruction 5.600 covers operating without a license under § 10. The instructions confirm that the Commonwealth must prove the defendant received notice of a suspension under § 23.

Defenses in an Operating After Suspension Case

The defenses follow the elements. The first and most common is the failure to prove notice. The Commonwealth must prove that the defendant received notice of the suspension, and the defendant may introduce evidence of non receipt to rebut the inference that a mailed notice arrived. Commonwealth v. Crosscup, 369 Mass. 228 (1975). The second attacks the proof of the suspension. An officer’s recitation of a Registry check is inadmissible hearsay, and the Commonwealth needs a properly attested record. Commonwealth v. Royal, 89 Mass. App. Ct. 168 (2016); Commonwealth v. Deramo, 436 Mass. 40 (2002). The third shows that the license had been reinstated, or that the operation fell outside the suspension period, so the second element fails. The fourth is misidentification. The inference that the registered owner was driving supports a stop, but it does not prove at trial who operated the vehicle. Commonwealth v. Deramo, 436 Mass. 40 (2002). A driver who in fact held a hardship license has a defense. Testing the Commonwealth’s proof at trial is the subject of the firm’s page on cross-examination in Massachusetts criminal trials.

The Relationship to Operating Under the Influence

Operating after suspension is closely tied to operating under the influence. A prior operating under the influence disposition is one of the most common reasons a license is suspended. Driving during that suspension is the aggravated offense that carries the mandatory minimum. A person defending an operating after suspension charge that grew out of an earlier operating under the influence case is defending the consequences of that first case as well. The firm addresses the whole matter, including the Registry process, when it advises a client in this situation.

Who Attorney Serpa Represents

Attorney Serpa defends people charged with operating after suspension and unlicensed operation. The charges run from a first offense that turns on whether notice was ever received to an aggravated charge that carries a mandatory jail term because the underlying suspension was for operating under the influence. Many of these clients did not know their license was suspended, or believed it had been restored. The firm holds the Commonwealth to proof of every element. If you face one of these charges in Massachusetts, call Attorney Serpa at 617.936.0201 for a confidential consultation.

Massachusetts Courts Where Attorney Serpa Tries These Cases

Attorney Serpa handles operating after suspension and unlicensed operation cases in the Boston Municipal Court and in the district courts of Eastern and Central Massachusetts. These include the Quincy, Cambridge, Dedham, Woburn, Waltham, Hingham, Framingham, Malden, Somerville, and Lowell District Courts. Each courthouse has its own judges, prosecutors, and practices. Attorney Serpa has tried cases in these buildings for thirty years, and that experience informs the defense in every case.

Related Serpa Law Office resources

Operating after suspension is one of a group of Massachusetts motor vehicle offenses the firm defends. The Massachusetts motor vehicle crimes overview collects them. A driver stopped while suspended often faces more than one count. These include operating under the influence, negligent and reckless operation, operating to endanger and motor vehicle homicide, and leaving the scene of an accident. When the case begins with a summons, the clerk magistrate hearing is the first place to keep a complaint from issuing.