Appeals Court (March 18, 2011)

A judge is not required to bifurcate the trial on a G.L. c. 90, §23 Operating Under the Influence While Suspended for Operating Under the Influence offense because the crime itself is freestanding and not a sentencing enhancement.

The defendant was convicted of Operating Under the Influence (OUI) 4th offense and Operating Under the Influence While Operating After Suspension for OUI. He appealed his conviction for OUI While Operating After Suspension for OUI, claiming that bifurcation of the offense was compelled by G.L. c. 278, § 11A, which governs crimes "for which more severe punishment is provided for second and subsequent offenses." The Court disagreed, ruling that G.L. c. 90, § 23, does not contain any enhancement provision. "Although that crime requires proof that the defendant was operating a motor vehicle while under the influence of alcohol after his license to operate had been suspended or revoked for a prior similar crime, G.L. c. 90, §23, the reason for the suspension or revocation of the license - operating a motor vehicle while under the influence of alcohol - is an element of the crime with which the defendant was charged, and is not a sentencing enhancement."

Note: There is a also a good discussion in this case regarding under what circumstances a defendant may open the door to allow a prosecutor to admit evidence of the defendant's refusal to submit to field sobriety tests.