Suffolk, SS District Court Department
MICHAEL DOHERTY, Plaintiff
REGISTRY OF MOTOR VEHICLES
MEMORANDUM OF DECISION
The court is required to conduct its review on the same record that was before the hearing officer. G.L. c. 90, § § 24(1 )(g). The documents comprising the record include the decision of the hearing officer and a number of reports and forms as described below. The record indicates that on April 20, 1997, at approximately 3:00 am., Massachusetts State Police Trooper Thomas Kelley arrested Michael F. Doherty at Leveritt Circle in Boston and charged him with operating under the influence of alcohol as well as a civil motor vehicle infraction. A copy of the police report, the field sobriety testing sheet, and the alcohol influence report prepared by Trooper Kelley is included in the record along with a copy of the statutory rights and consent form signed by the defendant, Trooper Hogaboom as a witness and Trooper Kelley as the police officer. The record contains a copy of a notice to the plaintiff, Michael Doherty, that his license would be suspended by the registrar and a copy of a Temporary Driver's License issued to the plaintiff that was effective for up to 15 days.
The record also contains a form entitled "Report to [sic] Refusal to Submit to Chemical Test," see G.L. c. 90, § § 24(1)(f)(1), which states that the plaintiff, Michael Doherty, exhibited symptoms of intoxication consisting of unsteadiness on his feet, glassy eyes, bloodshot eyes, a strong odor of alcohol and slurred speech. The form also states that the plaintiff "failed all field sobriety tests." It further states that the plaintiff was advised that as a result of his refusal his license could be suspended for 120 days and up to 1 1/2 years, that he was offered a chemical test, and that he made a verbal and written refusal to take the test. The report is not signed by anyone. At the bottom of the report, there are statements indicating the identity of various state police troopers and their functions. The report states that "Thomas Kelley" is the officer before whom the refusal was made and that "Tpr. Kevin Hogaboom" is the other person who witnessed the refusal. At the bottom of the report there is the following statement: "This is the report of TROOPER THOMAS KELLEY and was made by TROOPER THOMAS KELLEY under the penalties of perjury. Data entry and transmission were done by KELLY, THOMAS by or at the direction of TROOPER THOMAS KELLEY."
On April 28, 1997, the plaintiff requested a hearing regarding the license suspension under G.L. c. 90, § § 24(1)(g). The statute permits the person arrested for operating under the influence to raise three issues in connection with a license suspension based upon a refusal to take the breath test. The defendant may challenge the existence of probable cause, the fact of an arrest, and whether there was a refusal to submit to a chemical test or analysis. Go. c. 90, § § 24(1)(g). The defendant prepared and submitted to the Registry of Motor vehicles a written statement that he did not knowingly waive his right or refuse to take a breath test. He also submitted a " statement" of his attorney, Seamus O'Kelly, which asserts that the report of the plaintiff's refusal to take the breathalyzer test that was prepared by Trooper Kelley and given to the plaintiff at the time of his arrest "is defective on its face" because,
"[t]he form is not submitted under the pains and penalties of perjury as specifically required by G.L. c. 90, § § 24(1)(f)(1). For a document to be submitted under the pains and penalties of perjury it has to be signed by the maker, acknowledging that the factual allegations are knowingly made under the pains and penalties of perjury. Should the allegations contained in the form prove to be false, the troopers named on the form would not be subject to the penalties of perjury."The hearing officer, Mr. Brian J. Dunn, considered each of the two issues raised by the defendant. See 540 C.M.R. § § 11.02. The hearing officer rejected the plaintiff's contention that he did not make a reasoned decision to refuse to submit to the breath test. The plaintiff has not raised that issue in this proceeding. The hearing officer considered and rejected the plaintiff's second contention that an electronic message would not expose a maker to a prosecution for perjury for willfully false and material misstatements because it lacked a handwritten signature. He reasoned that under the most recent amendment to the state's drunk driving law, St. 1995, c. 38, § § 114, the police are permitted to transmit to the Registry of Motor Vehicles a report of an arrestee's refusal to take the breath test in an electronic format without "an actual signature." Thus, the hearing officer upheld the license suspension in a decision date May 9, 1997.
On May 14, 1997, the plaintiff filed a petition under G.L. c. 90, § § 24(1)(g) in the Charlestown District Court for review of the Registrar's decision. A hearing was conducted on May 19, 1997. A decision affirming the Registrar was made the next day.
The suspension of motor vehicle licenses in cases in which persons who are arrested for operating under the influence of alcohol and refuse to take a breathalyzer test has been a feature of the Massachusetts drunk driving law for many years. See Mackey v. Montrym, 443 U.S. 1 (1979). The provisions for such license suspensions are remedial and not punitive, and are designed "to protect the public from future harm by depriving the unsafe or irresponsible driver of his or her authority to continue to operate a motor vehicle." Luk v. Commonwealth, 421 Mass. 415, 426 (1995). For example, the 1986 Safe Roads Act provided, in part, as follows:
immediately prepare a written report of such refusal. Such written report shall be endorsed by a third person who shall have witnessed such refusal. Each such report shall be made on a form approved by the registrar, and shall be sworn to under the penalties of perjury by the police officer before whom such refusal was made. Each such report shall be endorsed by the police chief ... or by the person authorized by him and shall be sent to the registrar. Upon receipt of such report, the registrar shall suspend any license or permit to operate motor vehicles...for a period of one hundred and twenty days."St. 1986, c. 620, § § 12, amending G.L.c.90, § § 24(1)(f). In 1994, in a major revision of the drunk driving laws, § § 24(1)(f) was amended and the legislature adopted a procedure commonly referred to as "administrative license suspension" in which the police initiate the process of a license suspension at the time of the arrest by seizing the offender's paper license, and by giving the offender a notice informing the offender that the registrar intends to suspend the person's driver's license and a temporary, 15 day license (provided that the person otherwise is entitled to operate a motor vehicle). In the case of a person who refuses to take a breath test, the 1994 amendment retained, nearly verbatim, the relevant language from the 1986 law, as follows (changes are underscored):
''The police officer before whom such refusal was made shall immediately prepare a written report of such refusal. Such written report shall be endorsed by a third person who shall have witnessed such refusal. Each such report shall be made on a form approved by the registrar, and shall be sworn to under the penalties of perjury by the police officer before whom such refusal was made. Each such report shall be endorsed by the police chief or by the person authorized by him and shall be sent forthwith to the registrar along with the confiscated license or permit. and a copy of the notice of intent to suspend."G.L. c. 90, § § 24(1)(f)(1), paragraph 2, amended by St. 1994, c. 25, § § 5.
The statutory language that is at the heart of the dispute in this case was inserted in 1995. The 1995 amendment involves significant changes in the law relating to the method by which the police prepare the report of the offender's refusal to take the breathalyzer test and the manner in which they, In turn, transmit it to the registrar of motor vehicles. As a result of the 1995 amendments, the statute, in relevant part, today reads as follows:
"The police officer before whom such refusal was made shall immediately prepare a report of such refusal. Each such report shall be made in a format approved by the registrar and shall be made under the penalties of perjury by the police officer before whom such refusal was made .Each such report shall identify which police officer requested said chemical test or analysis, and the other person witnessing said refusal. Each such report shall be sent forthwith to the registrar along with a copy of the notice of intent to suspend in any form, including electronic or otherwise, that the registrar deems appropriate." .G.L. c. 90, § § 24(1)(f,(1), paragraph (2), as amended by St. 1995, c. 38, § § 114.
The 1995 amendment to the breath test refusal portion of the administrative license suspension section of the drunk driving law involves six significant changes. First, the legislature eliminated the requirement that the police officer's report must be in writing. Second, the legislature eliminated the requirement of an endorsement by the person who witnesses the refusal to take the breath test and substituted in its place a requirement that said person simply must be identified in the report. Third, the legislature substituted the phrase "in a format approved by the registrar" for the phrase "on a form approved by the registrar" in referring to the police officer's report of the arrestee's refusal to take the test. Fourth, the legislature eliminated the requirement that the report must be "sworn to" under the penalties of perjury and substituted in its place that it must be "made" under the penalties of perjury. Fifth, the legislature eliminated the requirement of an endorsement by the police chief or a designee. And, sixth, the legislature inserted a newphrase ("in any form, including electronic or otherwise?') to modify the existing language that "[e]ach such report shall be sent forthwith to the registrar."
"No written statement required by law shall be required to be verified by oath or affirmation before a magistrate if it contains or is verified by a written declaration that it is made under the pains and penalties of perjury. Whoever signs and issues such a written statement containing or verified by such a written declaration shall be guilty of perjury and subject to the penalties thereof if such statement is willfully false in a material matter."G.L.c.268,§ § 1A.
Proper respect for the authority of the legislature requires courts to observe certain fundamental rules when applying and interpreting statutes. "Every statute, if possible, is to be construed in accordance with sound judgment and common sense, so as to make it an effectual piece of legislation." Commonwealth v. Slome, 321 Mass. 713, 716 (1947). In particular,
"Elementary rules of statutory construction require that each statute be interpreted as enacted. No portion of the statutory language may be deemed superfluous. When the statutory language is plain, the words must receive their 'usual and natural meaning.' Statutory language should constitute the principal source of insight into legislative purpose."Commonwealth v. Gove, 366 Mass. 351, 354 (1974)(citations omitted). Accord, G.L. c. 4, § § 6, clause 3. When the legislature approves an amendment to an existing statute and makes significant changes in the language of the statute the court has a responsibility to consider the "mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of the framers may be effectuated, and to avoid imputing a 'barrenness of accomplishment."' Champigny v. Commonwealth, 422 Mass. 249, 251 (1996)(citations omitted).
It is plain that the 1995 amendments to G.L. c. 90, § § 24(1)(f)(1), as noted above, were designed to simplify the process by which police officers report to the Registry of Motor Vehicles that a person who has been arrested for operating under the influence of alcohol refused to submit to a breathalyzer test. The changes made by St. 1995, c. 38, § § 114 eliminated the requirement that the report by the police had to be in writing, used the term "format" instead of "form" to describe the report, and provided that the report could be made "in any form, including electronic or otherwise, that the registrar deems appropriate." Although there is no direct evidence in this case of the technology used by the state police to report the plaintiff's refusal to take a breath test to the registrar, it can be inferred that it was done electronically in much the same way that people use electronic mail or Email. This method of reporting is precisely what the 1995 amendments to G.L. c. 90, § § 24(1)(f)(1) were designed to permit.
However, the plaintiff maintains that the question is not as simple as this because by giving the words of the 1995 amendment to G.L. c. 90, § § 24(1)(f)(1) their plain and obvious meaning, another separate and fundamental purpose of the statute will be frustrated. According to the plaintiff, if police officers are no longer required to sign a written report of a person's refusal to take the breath test, the safeguard of a prosecution for perjury of a police officer who willfully makes a false report of material facts will be lost because the perjury statute requires proof of a writing that is signed. G.L. c. 268, § § 1A. It must be presumed that when the legislature amended G.L. c. 90, § § 24(1)(f)(1) in 1995 it was aware not only of the provisions of G.L. c. 268, § § 1 A, but also of the decisions of the Supreme Judicial Court that have interpreted statutory language which requires documents to be "in writing" and to be "signed" as not necessarily requiring a handwritten signature. E.g. Irving v. Goodimate, 320 Mass. 454, 459 (1946)(A typewritten signature constitutes a signing in accordance with the requirements of the statute of frauds); Finnegan v. Lucy, 157 Mass. 439, 443 (1892) ("Signing does not necessarily mean a written signature, as distinguished from a signature by mark, by print, by stamp or by the hand of another." See also R.A. Horning, "Has Hal Signed a Contract: The Statute of Frauds in Cyberspace, " 12 Santa Clara Computer & High Tech L.J. 253, 28086 (1996)
In Assessors of Boston v. Neal, 311 Mass. 192, 199-200 (1942), the Supreme Judicial Court relied on the statutory definition of "written" and "in writing" contained in G.L. c. 4, § § 7, cl. 38 to determine that an application for an abatement of annual property taxes met the statutory requirement that it be "in writing" on an approved form in circumstances in which the party seeking the abatement was identified on the form in typewritten letters even though there was no handwriting nor a signature on the form. The court also considered the significance of the fact that the approved form in question contained a statement as follows: "Signed this _____day of ____1936 Under the penalties of perjury." Id. at 200. The court found it unnecessary to decide whether an application for an abatement was the type of document that would come within the scope of the perjury statute. Id. However, the court made it clear that the reference to a writing and a signature in G.L. c. 268, § § 1A does not require a handwritten signature.
"In view, however, of the definition of 'written' in G.L. c. 4, § § 7, thirty eighth, it is obvious that such a 'written statement' need not be in handwriting. And so far as the form of signing is concerned, signing in any manner that conformed to other requirements of law, even though not in handwriting, would bring the person so signing within the scope of the statute. No reason appears for giving to the word 'signs' in G.L. c. 268, § § 1A, a narrower definition than is ordinarily given, as already pointed out, to the word 'signed.' A person who 'signs' a 'written statement,' within the scope of the statute, other than in handwriting, should not for that reason be free of liability for a statement so 'signed' that is 'willfully false in a material matter."'Id. at 20102.
The Neal case points the way for us to harmonize the changes made by the legislature as a result of the adoption of the 1995 amendments to G.L. c. 90, § § 24(1)(f)(1) with the requirements of G.L. c. 268, § § 1 A. Therefore, I conclude that a police officer who files or transmits (or who has another file or transmit) a report that is required by law to be made to the Registry of Motor Vehicles or to some other agency or individual by means of Email or some other electronic method in which there is a statement that identifies the officer making the report and a statement that it is "made under the penalties of perjury" has "signed" the document and is subject to a prosecution for perjury if the report is willfully false in a material manner even though the report does not contain a handwritten signature. G.L. c. 268, § § 1A. The same reasoning also would apply to other statutes. See G.L. c. 268, § § 6A (making it a crime for a police officer or other employee of the Commonwealth to file or publish "any false written report, minutes or statement, knowing the same to be false in a material manner"). Decisions by other judges who reached a different conclusion were brought to my attention by plaintiff's counsel. These other cases do not appear to be based upon a consideration of the interpretation of G.L. c. 268, § § 1A and the concepts of "in writing" and "signed" by the Supreme Judicial Court in the Neal and Finnegan cases, and I choose not to follow them.
The result I reach does not mean that issues regarding the authentication of electronic mail messages may not arise. In systems in which electronic messages are sent over commercial telephone lines and without the use of encryption technology, it is certainly possible for someone to prepare and transmit an Email message and to make it appear that it came from someone other than the true maker. However, this is true with documents that bear handwritten signatures as well. ee, e.g., B. Wright, "The Verdict on Plaintext Signatures: They 're Legal," 28 Beverly Hills Bar Association 135 (1994). In the present case, no such question is presented because the material in the record before the Registry of Motor Vehicles included the statutory rights and consent form signed by Troopers Kelley and Hogaboom and by the defendant.
Due to the increasing use of electronic mail or Email as a method of communication, it may be useful to consider whether legislation or court rules should be adopted to establish standards for plaintext signatures, and to clarify the extent to which Email messages constitute a "writing" and qualify as documents or statements that are "signed" by the maker in various contexts. See, e.g. In re Amendments to the Rules of Judicial AdministrationElectronic Transmission and Filing of Documents, 681 So. 2d 698 (Fla. 1996) (adopting rules regarding the use of all types of electronically transmitted documents in the court system).
Peter W. Agnes, Jr.