By the Court (RAPOZA, C.J., KATZMANN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury-waived trial in District Court, the defendant was convicted of operating a motor vehicle after his license had been suspended for operating while under the influence of alcohol. He now appeals. We affirm.
Discussion. 1. Introduction of Registry of Motor Vehicle records. At trial, the Commonwealth introduced records from both the Massachusetts and New Hampshire Registry of Motor Vehicles in order to demonstrate that pursuant to G.L. c. 90, § 23, at the time of his arrest, the defendant was operating a motor vehicle with a suspended license, the defendant had been convicted of two prior operating under the influence of alcohol (OUI) offenses, and the defendant had received notice from the Massachusetts Registry of Motor Vehicles (RMV) of his license suspension. At trial, the defendant objected to the Commonwealth's introduction of RMV records, arguing that the records violated his confrontation clause rights pursuant to Melendez–Diaz v. Massachusetts, 557 U.S. 305 (2009) ( Melendez–Diaz ). The defendant did not object to the introduction of the records on the grounds that the Commonwealth intended to introduce the records to prove his notice of the license suspension; however, the defendant now raises this objection on appeal. See Commonwealth v. Parenteau, 460 Mass. 1, 5 (2011) ( Parenteau ) (where at trial the defendant challenged his notice of license suspension, the court concluded that the Commonwealth could not introduce RMV records to prove notice without accompanying testimony subject to cross-examination).
“To prove the crime of operating a motor vehicle after revocation or suspension of license for operating while under the influence of alcohol, G.L. c. 90, § 23, second par., the Commonwealth must prove the following: (1) that the defendant operated a motor vehicle; (2) that at the time of that operation the defendant's license was revoked or suspended; (3) that the license suspension or revocation was pursuant to a violation of one of the specified statutory sections (including operating a motor vehicle while under the influence of alcohol in violation of G.L. c. 90, § 24[1] [ a ] ); and (4) that the defendant was notified that his license had been suspended or revoked.” Commonwealth v. Deramo, 436 Mass. 40, 50 (2002).
Since the defendant did not object to the introduction of the RMV records on the basis that they would demonstrate notice of the suspension, he waived this claim and cannot raise it for the first time on appeal. Commonwealth v. Pares–Ramirez, 400 Mass. 604, 609 (1987). Moreover, we note that at trial, the defendant conceded that he had received notice of his license suspension. At trial, the defendant's attorney stated, “I'm not disputing that he was operating after suspension.” Thus, since the defendant in the case at bar, unlike the defendant in Parenteau, did not contest whether he had received notice of his license suspension, the Commonwealth did not need to put forth live testimony to support this element of the offense.
We therefore need only consider the defendant's generic Melendez–Diaz objection. We have previously found that “unlike the certificates at issue in Melendez–Diaz, which are created solely to prove an element of the prosecution's case, RMV records are maintained independent of any prosecutorial purpose and are therefore admissible in evidence as ordinary business records under G.L. c. 233, § 78, as well as pursuant to G.L. c. 233, § 76.” Commonwealth v. Martinez–Guzman, 76 Mass.App.Ct. 167, 171 n. 3 (2010). See Commonwealth v. McMullin, 76 Mass.App.Ct. 904, 904–905 (2010). Thus, the trial judge properly admitted the records in evidence.
2. Validity of out-of-State conviction for OUI. The defendant argues that the trial judge committed error in denying his motion for a required finding of not guilty. More specifically, the defendant argues that his out-of-State (New Hampshire) conviction for OUI could not have served as one of the two predicate OUI offenses that triggered the underlying two-year license suspension pursuant to G.L. c. 90, § 24(1)( c )(2).
First, if the defendant sought to challenge the RMV's use of the New Hampshire conviction as one of the two predicate offenses for his license suspension, he should have filed a timely appeal for judicial review of the agency's decision pursuant to G.L. c. 30A, § 14(7). See Bresten v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 76 Mass.App.Ct. 263 (2010). However, by failing to appeal within thirty days of his receipt of the agency decision, the defendant waived his right to challenge the RMV suspension.
Moreover, even if we were to consider the defendant's underlying claim, the defendant's argument lacks merit. Under the interstate compact on motor vehicle convictions, “the licensing authority in [Massachusetts], for the purposes of suspension, revocation, or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported ... as it would if such conduct had occurred in [Massachusetts].” G.L. c. 90, § 30B(III)( a ). See Bresten v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, supra at 265–267. Thus, after learning of the defendant's second OUI offense, the Massachusetts RMV properly suspended the defendant's license for two years pursuant to G.L. c. 90, § 24(1)( c )(2). See Dowling v. Registrar of Motor Vehicles, 425 Mass. 523, 525–527 (1997).
Similarly, given the evidence presented at trial, the judge correctly found that the Commonwealth submitted sufficient evidence to convict the defendant of operating a motor vehicle after his license had been suspended for operating while under the influence of alcohol.
Judgment affirmed.
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