HARLY B. SAVAGE v. BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1351

HARLY B. SAVAGE

v.

BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS &
another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Harly B. Savage, appeals from a Superior

Court judgment affirming the decision of the Board of Appeal on

Motor Vehicle Liability Policies and Bonds (board) to deny him a

limited driver's license on the ground of hardship (hardship

license).2 For the reasons stated below, we affirm.

Background. Between 1990 and 2006, the plaintiff was

convicted of operating under the influence of alcohol (OUI)

seven separate times. The 1999 conviction -- the plaintiff's

fifth -- should have led to a lifetime revocation of his

1 Registry of Motor Vehicles (RMV).

2The plaintiff brought the present action against the board
and the RMV (collectively, the defendants).
driver's license pursuant to G. L. c. 90, § 24 (1) (c) (3 3/4).3

However, the RMV was unaware of the plaintiff's fifth OUI

conviction as well as his third OUI conviction,4 which both

occurred in Arizona, and thus the lifetime revocation was not

imposed. Similarly, a lifetime revocation was not imposed after

a 2006 conviction -- the plaintiff's seventh -- because the RMV

was still unaware of his Arizona OUI convictions and another OUI

conviction in Colorado from 2000.

In early April of 2012, the RMV became aware of the

plaintiff's out-of-state OUI conviction in Colorado from 2000.

That OUI conviction was "posted" to the plaintiff's driving

3 General Laws c. 90, § 24 (1) (c) (3 3/4) provides, in
relevant part:

"Where the license or the right to operate of a person has
been revoked under paragraph (b) and such person has been
previously convicted of or assigned to an alcohol or
controlled substance education, treatment or rehabilitation
program by a court of the commonwealth or any other
jurisdiction because of a like violation four or more times
preceding the date of the commission of the offense for
which such person has been convicted, such person's license
or right to operate a motor vehicle shall be revoked for
the life of such person, and such person shall not be
granted a hearing before the registrar for the purpose of
requesting the issuance of a new license on a limited basis
on the grounds of hardship . . . ."

4 Different states use differing nomenclatures for the
offense of operating or driving a motor vehicle while under the
influence of alcohol. For consistency, we use the term "OUI
conviction" to describe such offenses in Massachusetts as well
as "like violation[s]" from other states. See generally G. L.
c. 90, § 24.

2
history. As a result, to the RMV's knowledge, the plaintiff had

five OUI convictions and thus the RMV imposed a lifetime license

revocation, backdated to 2006. See G. L. c. 90, § 24

(1) (c) (3 3/4).5 On April 5, 2012, following a hearing, the

board affirmed the RMV's order revoking the plaintiff's driver's

license for life.

On April 13, 2017, the plaintiff appeared before the board

to appeal from the RMV's lifetime license revocation and asked

the board to exercise its discretionary authority to modify the

lifetime revocation. Pursuant to G. L. c. 90, § 28, the board

modified the RMV's order and granted the plaintiff a hardship

license to operate a motor vehicle on a limited basis.6

In or around early September of 2019, the RMV learned of

the plaintiff's out-of-state OUI convictions in Arizona from

1996 and 1999, which posted to the plaintiff's driving history.

For the first time, the RMV was aware of the plaintiff's seven

5 As previously discussed, although the plaintiff had seven
OUI convictions as of 2006, the RMV was still aware of only five
such convictions in April of 2012.

6 General Laws c. 90, § 28, authorizes the board to, among
other things, modify rulings by the RMV. The relevant portion
of § 28 provides that "[a]ny person aggrieved by a ruling or
decision of the [RMV] may . . . appeal from such ruling or
decision to the board . . . which . . . may, after a hearing,
order such ruling or decision to be affirmed, modified or
annulled." G. L. c. 90, § 28. Thus, the board, unlike the RMV,
has discretion to issue a hardship license to a person subject
to a lifetime license revocation.

3
OUI convictions and entered another lifetime revocation of the

defendant's license. Soon thereafter, on September 5, 2019, the

plaintiff appeared before the board to request further review

and modification of his license status, and to "reinstate his

hardship license that was granted by the [b]oard" in 2017. The

board affirmed the RMV's lifetime revocation order based on the

seven OUI convictions and made no mention of any hardship

license. The plaintiff did not appeal from the board's

September 2019 decision. See G. L. c. 30A, § 14.

On May 10, 2022, the plaintiff appeared before the board to

challenge the lifetime revocation and seek reinstatement of his

hardship license.7 Following the hearing and consideration of

materials submitted by the plaintiff, the board declined to

exercise its discretion under G. L. c. 90, § 28. In its

comprehensive "Statement of Reasons for Decision," the board

found, inter alia, that in view of the plaintiff's driving

history, which "exhibits an indifference to the law and public

safety," the "risk to reoffend is too great to allow him to

7 The plaintiff had moved to California, and in July of
2021, he learned from the California Department of Motor
Vehicles (CADMV) that he could not update his "REAL ID" because
of a "flag" from Massachusetts. On February 3, 2022, the CADMV
notified the plaintiff that his California license would not be
renewed unless the CADMV received a "clearance" from the
Massachusetts licensing agency within thirty days. Accordingly,
in 2022, the plaintiff requested another hearing before the
board.

4
return to the public highways," and the lifetime revocation was

"both appropriate and necessary to protect public safety on the

Commonwealth's motor ways."

On June 8, 2022, the plaintiff filed a complaint for

judicial review in the Superior Court pursuant to G. L. c. 30A,

§ 14. The parties filed cross motions for judgment on the

pleadings and, on April 28, 2023, a Superior Court judge allowed

the defendants' motion and directed entry of judgment for them.

Final judgment entered on May 4, 2023. The plaintiff now

appeals therefrom.

Discussion. The plaintiff argues that the board's refusal

to grant him a hardship license in 2019 constituted an abuse of

discretion and was arbitrary and capricious because the board

had previously granted him a hardship license in 2017, his seven

OUI convictions had existed since 2006 (i.e., prior to the

issuance of the hardship license in 2017), and thus he should

not be punished for the RMV's failure to timely process out-of-

state OUI convictions.

"Our review pursuant to G. L. c. 30A, § 14, 'is limited to

determining whether the agency's decision was unsupported by

substantial evidence, arbitrary and capricious, or otherwise

based on an error of law.'" Sullivan v. Board of Appeal on

Motor Vehicle Liab. Policies & Bonds, 97 Mass. App. Ct. 818, 821

(2020), quoting Haverhill Retirement Sys. v. Contributory

5
Retirement Appeal Bd., 82 Mass. App. Ct. 129, 131 (2012). "[W]e

review questions of statutory interpretation de novo, giving

substantial deference to a reasonable interpretation of a

statute by the administrative agency charged with its

administration and enforcement." Burke v. Board of Appeal on

Motor Vehicle Liab. Policies & Bonds, 90 Mass. App. Ct. 203,

205-206 (2016). "The burden is on the plaintiff to demonstrate

the invalidity of the administrative determination." Sullivan,

supra at 821.

Under G. L. c. 90, § 28, the board has discretion to

affirm, modify, or annul a decision of the RMV. See note 6,

supra. An abuse of discretion occurs where the board makes a

clear error of judgment in weighing the factors relevant to the

decision "such that the decision falls outside the range of

reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169,

185 n.27 (2014).

Like the board and the motion judge, we have considered the

plaintiff's claims, and acknowledge some sympathetic elements to

the plaintiff's argument, including his increased maturity and

responsibility since 2006.8 We also recognize the practical

8 The plaintiff appears to have made laudable changes to his
life. He became a partner in a business, married and raised two
children with his wife, and has remained sober since 2006.
[Indeed, the board noted the plaintiff's "positive strides," but
determined that his efforts did "not overcome the threat he
poses to the safety of the public."

6
impact of the lifetime license loss at issue here. That

notwithstanding, we discern no error or abuse of discretion in

the board's decision. General Laws c. 90, § 24 (1) (c) (3 3/4)

mandates the lifetime revocation imposed, and the board cited

ample, clear, justifiable reasons to deny the requested hardship

license. See generally Boston Retirement Bd. v. Contributory

Retirement Appeal Bd., 441 Mass. 78, 82 (2004) ("Where an

agency's interpretation of a statute is reasonable, the court

should not supplant it with its own judgment"). Moreover, the

plaintiff cites no authority for the proposition that the late

discovery of the two additional convictions somehow precludes

the board from denying his request for relief under G. L. c. 90,

§ 28. Indeed, as the judge noted in his decision on the motion

for judgment on the pleadings, the fact that the plaintiff "was

previously granted a hardship license, before the full extent of

his prior convictions was known, does not require the [board] to

perpetuate action it took based on incomplete information."

Accordingly, in view of the plaintiff's history, the plain

language and legislative intent expressed by G. L. c. 90, § 24

(1) (c) (3 3/4), and the facts found by the board, we cannot say

that the board abused its discretion or acted in an arbitrary or

7
capricious manner in declining to grant a hardship license to

the plaintiff.

Judgment affirmed.

By the Court (Neyman,
Desmond & Singh, JJ.9),

Clerk

Entered: November 25, 2024.

9 The panelists are listed in order of seniority.

8