What does it mean to operate after suspension or revocation?
Under Massachusetts law, to operate a motor vehicle after suspension or revocation is a crime. The offense is “operating after suspension or revocation of license.”
What does the government need to show to prove I operated after suspension or revocation?
In order to prove the defendant GUILTY of the offense of operating after suspension or revocation of license, the Commonwealth must prove ALL of the following elements of the offense beyond a reasonable doubt:
- That the defendant operated a motor vehicle
- That at the time the defendant operated a motor vehicle on a suspended or revoked license
- That the defendant or an agent of the defendant such as a household member or employer received notice of pending suspension or revocation
How does the government prove that notice was received?
Moreover, the Commonwealth must prove beyond a reasonable doubt that the defendant received notice. The Commonwealth is under no burden to prove that the defendant had actual, personal knowledge of the contents of the notice.
In most cases the RMV initiates suspension or revocation.
A properly attested (i.e. formalized) copy of the official records of the RMV is sufficient evidence. Such evidence also is sufficient proof that the Court properly notified the defendant of the suspension or revocation. Jurors may not accept it as sufficient evidence, but they may.
Jurors may also consider a properly attested copy of business record of the RMV as sufficient evidence. As with official records of the RMV, jurors may not accept it as sufficient evidence, but they may.
Whose responsibility is it to determine a record was properly certified?
It is the responsibility of the judgeto determine if a record is admissible.
A business records a mailed suspension or revocation notice is admissible at trial.
Moreover, if the RMV later creates an attested record of the mailing, that record does NOT meet the requirements.
Is the RMV’s certificate of suspended or revoked status to a license evidence of notice?
A certificate of the Registrar of the RMV that a license or right to operate motor vehicles EITHER:
- NOT restored
- Has NOT issued a new license so to operate to the defendant
…is admissible in ANY court of the Commonwealth to prove that the defendant received the required notice.
Note that a certification by the Registrar that an attached notice of suspension was mailed on the date or dates appearing on the notice to the last address on the file is NOT admissible to prove notice, as it goes beyond attesting to the authenticity of the record and is therefore considered testimonial.
Does the RMV have to provide me notice of suspension or revocation?
Yes. Upon suspension or revocation, the RMV must send written notice to the driver’s last address.
Note that the Commonwealth must provide receipteither of notice or actual suspension of notice of the intent to suspend. The defendant may offer evidence of non-receipt.
“Receipt” includes receipt by a household member, an employer, or another agent of the defendant. The Commonwealth is under no burden to prove actual personal knowledge on the defendant’s part.
If I deliberately avoid notice, am I still legally considered to have received notice?
YES, a defendant who willfully evades notice is legally considered to have received notice. This type of notice is called constructive notice—or the legal fiction that someone actually received notice (being informed of a case that could affect his or her interest) whether or not he or she truly did receive this.
An unclaimed, certified letter does NOT warrant concluding that the defendant received constructive notice of license revocation.
What is an attested RMV record?
Copies of official records of the RMV are admissible as evidence of notice in court.
Attestation is a written and signed certification that an official record is a true copy. Note that a photocopy of an attestation is insufficient. Also note that an attesting signature may be holographic, stamped, or printed.
Is a police cruiser database check on a suspended license evidence of operating after suspension or revocation of license?
NO, under Commonwealth law police cruiser databases checks on a suspended license are inadmissible evidence in court.
Can I notify the RMV of any changes to my address?
YES, under Commonwealth law a licensed operator may notify the RMV of any change of address.
For example, in one firearms prosecution case Commonwealth v. Hampton, (where absence of a license was not an element of the offense in question), the defendant herself was deemed by the court to be responsible for nonreceipt of her license suspension notice by failing to report her change of address as required by Commonwealth law.
In addition, for more information on firearms laws in Massachusetts, see Possession of a Firearm and Carrying a Firearm.
Is a clerk magistrate's certificate of suspension considered evidence of notice of suspension?
A certificate of a clerk of court is admissible.
Does the operating after suspension or revocation have to occur on a public way?
NO, the violation does not need to occur on a public way.
Is operating outside hardship hours operating after suspension or revocation?
NO, a defendant who operates a motor vehicle outside the hours of operation permitted by a hardship license (i.e. a restricted learner’s permit granted to teenagers between the ages of 14 and 15 years old for a specific “hardship” reason like working for a family business or transport to school) issued after a license suspension CANNOT be charged with operating after suspension since that offense is defined as operation prior to the RMV’s issuance to him or her of a new license to operate.
Moreover, the appropriate charge in this scenario would be operating a motor vehicle without a license.
IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH A CRIME AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.
CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.