Supreme Judicial Court, November 21, 2013

An individual whose license is suspended for an out-of-state operating under the influence (OUI) offense cannot be charged with operating after suspension for OUI under Chapter 90, §23, third paragraph.  A license suspension based on an out of state OUI offense is a suspension issued pursuant to G.L. c. 90, § 22(c).   G.L. c. 90 § 23, third paragraph requires that the suspension have been “pursuant to a violation of G.L. c. 90, §§ 24(1)(a ), 24D, 24E, 24G, 24L or 24N, or of G.L. c. 90B, §§ 8(a ), first par., 8A or 8B." 

G. L. c. 90, § 23, third par.”

"Any person convicted of operating a motor vehicle after his license to operate has been suspended or revoked pursuant to a violation of paragraph (a) of subdivision (1) of section twenty- four, or pursuant to section twenty-four D, twenty-four E, twenty-four G, twenty-four L, or twenty-four N of this chapter, or pursuant to subsection (a) of section eight, or pursuant to a violation of section eight A or section eight B of chapter ninety B, or pursuant to a violation of section 8, 9 or 11 of chapter ninety F, or after notice of such suspension or revocation of his right to operate a motor vehicle without a license has been issued and received by such person . . . shall be punished by a fine of not less than one thousand nor more than ten thousand dollars and by imprisonment in a house of correction for not less than sixty days and not more than two and one-half years . . . ."

The Court rejected the reasoning of Commonwealth v. Herpin, 67 Mass. App. Ct. 1112 (2006), i.e., that in the case of a person who has a prior Mass OUI and an out of state OUI, the registrar must have suspended the defendant's license on the basis of both his Massachusetts and his New Hampshire OUI convictions because the length of the suspension (two years) was a length that could only have been imposed on the basis of both convictions.