COMMONWEALTH vs. IAN M. VALITON

MARSHALL, C.J. The issue in this appeal is whether a defendant previously charged in the Juvenile Court with being delinquent by reason of operating a motor vehicle while under the influence of intoxicating liquor, with a resulting disposition of the suspension of his license; counselling and evaluation at a program providing education, treatment, and rehabilitation; and an order of probation, may later be charged under the second

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offense enhanced penalty provision of G. L. c. 90, s. 24 (1) (a) (1). [Note 1] We conclude that he may.

1. Background. On January 26, 1999, the defendant was arrested and charged with operating a motor vehicle while under the influence of intoxicating liquor, second offense, in violation of G. L. c. 90, s. 24. The defendant pleaded guilty to the underlying charge of operating while under the influence, but requested a jury-waived trial on the issue whether the charge constituted a second offense. After a trial, a judge in the District Court convicted the defendant of committing a second offense.

The Juvenile Court docket of the defendant's case, admitted at trial, indicates that, on April 21, 1996, when he was sixteen years old, he was charged with operating a motor vehicle while under the influence of intoxicating liquor. After the defendant admitted to facts sufficient to warrant an adjudication of delinquency on the charge, a Juvenile Court judge suspended the defendant's license for 210 days, and ordered that he be placed on probation and receive "counseling and eval[uation]" at the Berkshire Council on Alcoholism and Addiction (BCAA). On June 5, 1997, at the request of the probation department, the Juvenile Court judge dismissed that case.

In this case the defendant pleaded guilty to the underlying charge of operating while under the influence of intoxicating liquor, and the only issue was whether the charge was a first or second offense. The District Court judge concluded that the prior disposition in the Juvenile Court constituted a previous assignment to an alcohol treatment facility under G. L. c. 90,

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s. 24 [Note 2]. The judge then found the defendant guilty of operating while under the influence of intoxicating liquor, second offense, and sentenced him to a suspended sentence of sixty days to a house of correction. He further ordered him to complete a fourteen-day treatment program and to pay a number of fines. The defendant appealed, and we transferred the case here on our own motion.

2. Discussion. The defendant argues that there is a fundamental conflict between the basic tenet of the Commonwealth's law as it applies to children, that juvenile proceedings are not criminal, and the Commonwealth's claim that an earlier juvenile disposition can serve as the basis for a determination of subsequent-offender status. Relying specifically on G. L. c. 119, s. 53 [Note 3], the defendant contends that it would be at odds with the legislative mandate to treat juveniles as children in need of guidance rather than criminals, and then to treat any noncriminal juvenile disposition as a predicate criminal offense for applying repeat-offender, enhanced criminal penalties. A resolution of his claim requires us to determine whether his juvenile probation disposition, with the attendant evaluation at BCAA, constitutes a previous "convict[ion] or assign[ment] to an alcohol or controlled substance education, treatment, or rehabilitation program," and whether that juvenile disposition is a "like violation" for the purposes of G. L. c. 90, s. 24.

We resolve in the defendant's favor, of course, any ambiguity in the statutes at issue. Commonwealth v. Connor C., ante 635, 642 (2000), citing Charles C. v. Commonwealth, 415 Mass. 58, 70 (1993). We may also clarify "by judicial explanation" any terms used in a criminal statute that lack precision. See Commonwealth v. Arthur, 420 Mass. 535, 540 (1995), quoting Commonwealth v. Adams, 389 Mass. 265, 271 (1983). To clarify the meaning of the terms "assigned," "alcohol or controlled

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substance education, treatment, or rehabilitation program," and "like violation," G. L. c. 90, s. 24 (1) (a) (1), we adhere to the canon that a statute should be interpreted to give effect to the intent of the Legislature, as ascertained from the ordinary and approved use of language, the reasons for the enactment, any imperfection to be remedied, and the main object to be accomplished. Commonwealth v. Connor C., supra at 640.

General Laws c. 90, s. 24 (1) (a) (1), provides that a "convict[ion] or assign[ment]" satisfies the predicate requirement for a second-offense violation (emphasis added). Thus a previous "assignment," without more, is sufficient to support a second-offense conviction: no "conviction" is required [Note 4]. The defendant claims that he was not "assigned" to any facility. But according to the ordinary and approved use of the word "assignment," it is clear that the defendant was "assigned" by the Juvenile Court judge to BCAA [Note 5]. He did not attend BCAA voluntarily but was ordered to undergo evaluation and counselling at BCAA by the judge as a condition of the continuance without a finding. Such a disposition by the judge was not possible in the absence of a court-ordered assignment to an alcohol treatment facility.

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G. L. c. 90, s. 24D [Note 6]. Although she did not so specify, it is clear that the Juvenile Court judge sent the defendant to BCAA in accordance with the requirements of G. L. c. 90, s. 24D. That section delineates the disposition available for violators of G. L. c. 90, s. 24 (1) (a) (1), who are placed on probation rather than convicted (adults) or adjudicated delinquent (children). The imposition of a 210-day loss of license and the order that the defendant undergo "counseling and eval[uation]" at BCAA after the defendant's case was continued without a finding, tracks the requirement of G. L. c. 90, s. 24D, that a child under the age of twenty-one years "placed on probation" shall have his license suspended for 210 days and "be assigned to a program . . . for the education and treatment of underage drinking drivers."

The defendant also contends that the condition of his probation of "counseling and eval[uation]" at BCAA does not qualify as "an alcohol . . . education, treatment, or rehabilitation program" within the meaning of G. L. c. 90, s. 24 (1) (a) (1) (emphasis added) [Note 7]. He suggests that the term "program" generally refers to a "structured course" of treatment that meets the minimum content, assessment, staffing, and duration requirements specified in the regulations governing licensure of

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substance abuse outpatient services [Note 8]. An order that a juvenile undergo an evaluation and counselling at BCAA is not akin to an assignment for a first-time adult offender, he claims, because here the Juvenile Court judge did not specify the type of counselling that must be provided or how long it must continue [Note 9]. We reject the argument. BCAA plainly qualifies as a "program" pursuant to G.L. c. 90, s. 24: the parties stipulated that BCAA is licensed by the Department of Public Health to provide alcohol education and rehabilitation in accordance with G. L. c. 90, s. 24 (1) (a) (1) (see note 2, supra) [Note 10].

The defendant's argument - that the particular evaluation and counselling services he received at BCAA did not satisfy the "program" requirement of G. L. c. 90, s. 24 (1) (a) (1) - is unavailing in light of the statute's broad language. Even if the defendant is correct that an assignment for a first-time adult of-

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fender is generally more rigorous and of longer duration than the defendant's juvenile evaluation and counselling at BCAA, the repeat-offense provision of G. L. c. 90 does not require any specific adult-type treatment program as a prerequisite for a child to be found in violation of that statutory provision [Note 11].

We also reject the defendant's related claim that the enhanced second-offense penalty provision of G. L. c. 90, s. 24 (1) (a) (1), does not apply to children adjudicated delinquent. Two factors persuade us that the Legislature intended those provisions to apply to children, as well as to adults. First, the statute declares in broad language that "[w]hoever" operates a motor vehicle while under the influence of intoxicating liquor will be subject to the range of penalties set forth in G. L. c. 90, s. 24 (1) (a) (1). The statute does not exempt children from the otherwise inclusive term "[w]hoever." Because the statute does not require a prior criminal conviction as a prerequisite to a second-offense charge, we glean nothing from the use of the term "[w]hoever" itself that suggests it is limited to adults convicted of an earlier offense.

Second, the Legislature recently established provisions in G.L. c. 90 that apply specifically to children under the age of eighteen years. See G. L. c. 90, s. 24P, as appearing in St. 1998, c. 220, s. 7 (effective November 4, 1998). At the time it did so, the Legislature did not modify the enhanced sentencing provisions of G. L. c. 90, s. 24 (1) (a) (1), to exclude a prior juvenile violation from consideration as a predicate offense. The 1998

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legislation does contain specific sentencing provisions for the offense of operating a motor vehicle while under the influence of intoxicating liquor for persons under the age of eighteen years [Note 12]. The 1998 legislation provides minimum penalties for children who offend, while at the same time mandating that a

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person "under the age of 18" be arrested, charged, and subjected to certain penalties pursuant to G. L. c. 90, s. 24, in addition to any special juvenile disposition. G. L. c. 90, s. 24R These provisions, as well as the enhanced penalties for offenders "under the age of twenty-one" provided in G. L. c. 90, s. 24D, suggest that the Legislature chose -carefully which portions of G. L. c. 90, s. 24, to apply to all offenders, which to apply only to persons under the age of twenty-one years, and which to apply only to children under the age of eighteen years. Had the Legislature intended that the second-offense enhanced penalty provisions apply only to adults previously "convicted" of the offense, it could readily have included a provision to that effect.

Our interpretation of G. L. c. 90, s. 24 (1) (a) (1), as it applies to children is also consistent with the Legislature's stated objective of reducing the harms stemming from the operation of motor vehicles by intoxicated drivers, young and old. The emergency preamble to St. 1994, c. 25, s. 3, the most recent amendment to G. L. c. 90, s. 24 (1) (a) (1), provides that the purpose of the act "is, in part, to alleviate a serious public safety problem relative to the operation of motor vehicles while under the influence of alcoholic beverages in the commonwealth," and that its enactment is "necessary for the immediate preservation of the public safety." The provisions governing children who drive while intoxicated, G. L. c. 90, s. 24P, and the lengthier license suspension for offenders under the age of twenty-one years, G. L. c. 90, s. 24D [Note 13] are clear evidence of the Legislature's intent to address directly the contributions of children to this challenge to public safety.

We resolve summarily the defendant's final argument that his prior disposition as a juvenile does not meet the "like violation" requirement of G. L. c. 90, s. 24. Under the ordinary reading of "like violation," a prior offense is a like violation for the purpose of G. L. c. 90, s. 24 (1) (a) (1), where the subsequent offense constitutes the same conduct as the earlier. Commonwealth v. Corbett, 422 Mass. 391, 396 (1996) [Note 14]. It is irrelevant that the defendant was subject to different dispositional

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options for his juvenile offense; for both his violation as a juvenile and his violation as an adult the Commonwealth was required to prove the same elements to establish a violation of the statute for operating a motor vehicle while under the influence of intoxicating liquor. G. L. c. 90, s. 24.

The defendant's conviction pursuant to G. L. c. 90, s. 24 (1) (a) (1), is affirmed.

So ordered.