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

Massachusetts prosecutes two related driving credential offenses. Operating after suspension or revocation under M.G.L. c. 90, § 23 punishes a person who drives while a license or the right to operate is suspended or revoked. Unlicensed operation under M.G.L. c. 90, § 10 punishes a person who drives without ever having a valid license. The two offenses look similar, but they require different proof, and the difference decides many of these cases. The most serious version, operating after a suspension that was imposed for operating under the influence, carries a mandatory minimum jail term. Attorney Serpa defends both offenses across Greater Boston. This page explains the elements, the proof, the penalties, the leading cases, and the defenses.

Operating After Suspension Under Section 23

The Commonwealth must prove three elements for operating after suspension. The first is that the defendant operated a motor vehicle. The second is that the license or the right to operate was suspended or revoked at the time. The third is that the defendant had received notice of the suspension or revocation. Commonwealth v. Royal, 89 Mass. App. Ct. 168, 170 (2016). Unlike most motor vehicle offenses, operating after suspension does not require operation on a public way, and it can be committed on private property. Commonwealth v. Murphy, 409 Mass. 665 (1991). The notice element is where most of these cases are decided.

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, because a notice can be sent to an old address or never arrive. Commonwealth v. Crosscup, 369 Mass. 228 (1975). The question is what the defendant knew, not what the Registry sent, and a person who never learned of a suspension has a defense to the knowledge element. The defense examines the address the Registry used, whether the notice was returned, and whether anything shows that the defendant learned of the suspension.

How the Commonwealth Proves the Suspension

The proof of the suspension itself is a matter of admissible records, and the form of the proof matters. The proper proof is a certified Registry driving record, attested under M.G.L. c. 233, § 76, and a photocopy of the attestation does not satisfy the statute. Commonwealth v. Deramo, 436 Mass. 40 (2002). An officer’s testimony relaying the result of a Registry record check is inadmissible hearsay, and where the only proof that the license was suspended came from such testimony the conviction was reversed. Commonwealth v. Randall, 50 Mass. App. Ct. 26 (2000); Commonwealth v. Royal, 89 Mass. App. Ct. 168 (2016). Where the suspension was imposed by a court in the defendant’s presence, a certified copy of the criminal docket can prove both the suspension and the notice of it. Commonwealth v. Oyewole, 84 Mass. App. Ct. 669 (2014). A certified copy of a prior conviction can likewise prove that the suspension was imposed for an alcohol related reason. Commonwealth v. Beaulieu, 79 Mass. App. Ct. 100 (2011). The defense holds the Commonwealth to admissible proof of both the suspension and the notice.

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 sixty days and not more than two and one half years. The sixty day minimum may not be reduced or suspended, and it is a true mandatory minimum. This is the version of the offense that most often sends a person to jail, and it frequently follows an earlier operating under the influence case.

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 sixty day license suspension at the Registry. A later offense, and a suspension imposed on a person as a habitual traffic offender, carry longer terms. All of these offenses remain misdemeanors, but a conviction reaches the license and the record, and many of these cases end without incarceration through a dismissal or a continuance without a finding where the notice or the proof is in doubt. Because operating after suspension and unlicensed operation often begin with a citation rather than an arrest, the timing rules of M.G.L. c. 90C, § 2, the no fix rule, can apply, and a delay that the statutory exceptions do not explain can support a motion to dismiss.

Unlicensed Operation Under Section 10

Unlicensed operation under § 10 is a different offense. It applies to a person who operates a motor vehicle on a public way without ever having been licensed, and, unlike operating after suspension, it requires operation on a way or in a place to which the public has a right of access. On the question of licensure, the defendant carries the burden of producing evidence of a valid license, because the existence of a license is a fact peculiarly within the defendant’s knowledge. Commonwealth v. Munoz, 384 Mass. 503 (1981). A lack of notice that a license had expired is not a defense, because an expiration is self executing and requires no notice from the Registry. Watson v. Forbes, 307 Mass. 383 (1940). The offense is a misdemeanor, and a first offense 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, and the difference is often decisive. Operating after suspension requires notice that the license was suspended, but it does not require a public way. Unlicensed operation requires operation on a way, but it turns on the absence of a license rather than on notice. A charge brought under the wrong statute can fail on an element the Commonwealth did not expect to prove, and the defense reads the complaint against the actual facts of the stop.

The Model Jury Instructions

The Criminal Model Jury Instructions for Use in the District Court state the elements of these offenses. Instruction 5.200, revised in January 2013, covers operating after suspension or revocation of a license, and Instruction 5.600, in its 2009 edition, covers operating without being licensed. The instructions track the statutes and the case law, and they state the elements a jury is told to find.

Defenses in an Operating After Suspension Case

An effective defense follows the elements. The first is notice, because the Commonwealth must prove that the defendant received notice of the suspension, and a mailed notice that never reached the defendant does not satisfy that element. Commonwealth v. Crosscup, 369 Mass. 228 (1975). The second is the proof of the suspension, because the Commonwealth must offer a properly attested Registry record rather than an officer’s account of a Registry check. Commonwealth v. Deramo, 436 Mass. 40 (2002). The third is operation and identity, because the Commonwealth must prove that the defendant was the driver. For an unlicensed operation charge, the defense also tests the public way element that § 10 requires. Beyond the elements, the defense examines how the stop was made and whether any resulting evidence should be suppressed, and it tests the Commonwealth’s records on cross-examination.

The Relationship to Operating Under the Influence

Operating after suspension is closely tied to operating under the influence, because an impaired driving case is one of the most common reasons a license is suspended, and driving during that suspension is the aggravated offense that carries the sixty day mandatory minimum. The firm’s guide to Massachusetts OUI license suspensions explains how these suspensions are imposed and how long they last. A person who understands the suspension can often avoid the far more serious operating after suspension charge that follows from driving during it.

Who Attorney Serpa Represents

Attorney Serpa defends people charged with operating after suspension and unlicensed operation, often alongside an operating under the influence or another motor vehicle charge from the same stop. Many of these clients did not know that their license was suspended, hold a professional or commercial license that a conviction threatens, or are not citizens and face immigration consequences from a criminal disposition. The aggravated offense threatens a mandatory jail term, and the defense of these cases is worth the same care as any charge that carries one. If you are facing an operating after suspension or unlicensed operation charge in Massachusetts, contact 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 and unlicensed operation sit within the broader group of Massachusetts motor vehicle crimes the firm defends. The same stop often produces more than one charge, including operating under the influence, negligent and reckless operation, leaving the scene, and operating to endanger and motor vehicle homicide. Because a license suspension is so often the root of these cases, the firm’s page on Massachusetts OUI license suspensions explains the Registry process, the clerk magistrate hearing is the first place to keep a complaint from issuing, and the discipline of testing the Commonwealth’s proof at trial is the subject of the firm’s page on cross-examination in Massachusetts criminal trials.