August 23, 1982 Number 2

August 23, 1982 Number 2. Richard E. McLaughlin Registrar of Motor Vehicles 100 Nashua Street Boston, Massachusetts 02114 Dear Registrar McLaughlin: You have requested my opinion whether the payment of a fine for a minor traffic violation under the "pay by mail" procedure of G.L. c. 90, §20F, is a conviction for which you may revoke or suspend a license under c. 90, §20 and §22. For the reasons stated below, it is my opinion that the payment of a fine by this procedure does not constitute a conviction for which you may revoke or suspend a license under G.L. c. 90, §20. However, a person who consistently violates the traffic laws and who has repeatedly been required to pay such fines, may be operating the motor vehicle in such a manner as to be a threat to the public safety and thus may be subject to the discretionary revocation and suspension provisions of G.L. c. 90, §22. General Laws chapter 90, section 20F, sets forth the current' procedures for issuing traffic citations and for the disposition of minor traffic violations. The pro- vision establishes two mechanisms for disposing of these traffic citations. ^ For example, if the participating agency in turn resells the land to a private entity in exchange for a purchase money mortgage, that mortgage would have to include adequate provision for reporting to the participating agency and that the participating agency must approve all major transactions including but not limited to any sale, merger, dissolution, the sale or issue of substantial amounts of stock, and corporate reorganization. G.L. c. 40F. §4(1 1) (f). Chapter 90, section 20F, was inserted into the General Laws by section 41 of what has popularly been called the Court Reorganization Act, St. 1978, c. 478. See generally Commonweallh v. Germano. 379 Mass. 268 (1979). 82 P.D. 12 First, the person may "appear before a magistrate of the appropriate district court and confess the offense charged, either personally or through an agent duly autho- rized in writing, or may mail to such magistrate, with the citation, the maximum statutory fine provided therein/' G.L. c. 90, §20F, 13. ^ If this procedure is used, then the "appearance shall not be deemed a criminal proceeding for the purposes of [chapter 90). "G.L. c. 90. §20F, 14. ^ Thus, under this procedure the Legisla- ture has established a non-criminal, administrative mechanism for conveniently disposing of these traffic violations. Alternatively, the section also provides a mechanism by which the offender may decline to avail himself of the benefits of the "pay by mail" procedure. Under this procedure the offender may contest the citation through the usual procedures established for criminal cases. See, e.g. , Commonwealth v. Germano, 379 Mass. 268 (1979); Commonwealth v. Marder, 346 Mass. 408 (1963), appeal dismissed, 377 U.S. 407 (1964). Cf. Commonwealth v. Hesser, 1 Mass. App. 877 (1974). The legislative history of G.L. c. 90, §20F, indicates that the Legislature intended to treat minor motor vehicle violations governed by that provision in a manner similar to parking violations. Commonwealth v. Germano, 379 Mass. at 276. Accordingly, the Legislature sought, through the "pay by mail" mechanism, to provide "a sensible, simple, administrative method of making necessary traffic rules effective, without clogging the courts, causing undue public inconvenience and resentment, or depriving any citizen of full opportunity at his option for a judi- cial determination of facts." Conmionwealth v. Marder, 346 Mass. at 41 1. Because the "pay by mail" procedure is non-criminal, the payment of the statutory fine cannot be considered a conviction." General Laws chapter 90, section 20, permits you to revoke the license of a per- son who is convicted three consecutive times in the same year for violating G.L. c. 90, §§16^ or 17,^ or a regulation made under §18.^ Section 20 also prohibits, for at least thirty days after the date of such conviction and only at your discre- tion, the issuance of a new license to a person whose license has been sanctioned. The word "conviction" is a technical word which has acquired peculiar meaning in the law. It must therefore be interpreted according to that meaning. G.L. c. 4, §6. A long line of judicial decisions have interpreted the word "conviction" as a "judgment that conclusively establishes guilt after a finding, verdict, or plea of guilty." Forcier v. Hopkins, 329 Mass. 668, 670 (1953) (cases cited). A mere verdict or confession of guilt is not enough; "[njothing less than a final judgment, conclusively establishing guilt, will safisfy the meaning of the word 'convic- tion. . . .' " Attorney General v. Pelletier, 240 Mass. 264, 310-11 (1922), quot- ing Commonwealth v. Kiley, 150 Mass. 325 (1889). Under the non-criminal ^ This section does not apply to violations which have fines exceeding one hundred dollars or which have a pcnallv of imprisonment. G.L. c. 90, §20F. 11 II also does not apply to parking violations. Id. See also G.L. c 90. SS20A and 20C * The paragraph further states that the "offender shall not be required to report to any probation officer and no record of the case shall be entered in any probation records." ** If. on the other hand, the person decides to challenge the citation through normal criminal priKcdurcs, then any judicial determination of guilt will be considered a conviction and the offender will suffer the collateral consequences which accompany a criminal record. See Comnumweallh v. Murder, 346 Mass. at 41 1. See also Commonwealth r Germano. 379 Mass. at 274. ^ Offensive or illegal operation of motor vehicles. * Excessive speed on a street or way which does not have a posted speed limit ^ Exceeding the posted speed limit on any street or way. P.D. 12 83 procedure of G.L. c. 90, §20F, the Legislature has precluded the Court from enter- ing a judgment in these cases. The payment of a fine by these procedures is not, therefore, a conviction as that term is used in G.L. c. 90, §20.^ I conclude, there- fore, that the payment of these fines through the non-criminal procedures of G.L. c. 90, §20F, are not convictions for which you may revoke or suspend a license under section 20. This conclusion does not mean that you are without authority to revoke or sus- pend a license for these minor traffic violations. On the contrary, you may well possess such authority under G.L. c. 90, §22. General Laws chapter 90, section 22(a), permits you to suspend or revoke, without a hearing, a license whenever, "the holder thereof has committed a violation of the motor vehicle laws of a nature which would give the registrar reason to believe that continuing operation by such holder is and will be so seriously improper as to constitute an immediate threat to the public safety." Similarly, under G.L. c. 90, §22(^), you are authorized to "suspend or revoke any certificate of registration or any license issued under this chapter, when (you have) reason to believe the holder thereof is an incompetent person to operate motor vehicles, or is operating a motor vehicle improperly." These provisions grant you broad authority to suspend or revoke a license when you have reason to believe that a person is operating a motor vehicle improperly or is operating it in such a manner as to endanger the public safety and when a person who has repeatedly violated the motor vehicle laws. A conviction is not necessary to trigger the revocation mechanism set forth in these provisions of sec- tion 22.' Thus, repeated violations which result in the payment of fines by mail pursuant to G.L. c. 90, §20F, may support a finding that the person is operating improperly under G.L. c. 90, §22(a) or §22{b). In sum, I conclude that the payment of a traffic violation fine through the non- criminal procedures of G.L. c. 90, §20F, is not a conviction for which you may suspend or revoke a license pursuant to G.L. c. 90, §20. However, the consistent violation of the motor vehicle laws may support a finding that a person is operat- ing a motor vehicle improperly and therefore subject that person to a suspension or revocation under G.L. c. 90, §22(a) and §22(^7). Very truly yours, FRANCIS X. BELLOTTI Attorney General This non-criminal disposition is to be compared with the provisions of G.L. c. 90, §4A, as inserted by St. 1964. c. 626. §1. which provides for a waiver of trial, guilty plea and payment of a fme "on a complaint alleging violation of any law relating to the operation of control of motor vehicles ... for which the punishment is a fine or forfeihjre not exceeding . . fifty dollars and does not include a sentence of imprisonment." This provision for criminal disposition of motor vehicle violations was also amended by the Court Reorganization Act. In such circumstances, it must be presumed that the Legislature was aware of the differing procedures to resolve such cases and that the distinction was intentional. Harboniew Residents ' Commillee. Inc. v. Quincy Housing Aulharity, 368 Mass. 425,432 (1975). Subsection (c) of section 22, on the other hand, is triggered by an out-of-state conviction of operating under the influence of narcotics. Again, one can only conclude that the distinctions in the various subsections were intentionally drawn, therefore supporting the conclusion that convictions are not a condition precedent to the exercise of your power under G.L. c. 90, §22(a) or (fc). 84 P.D. 12