Elements of the Crime of OUI in Massachusetts

Commonwealth v. Bishop, 78 Mass. App. Ct. 70 (2011)

Shortly before midnight, Officer Raymond Schichilone of the Yarmouth, Massachusetts Police Department found Lise J. Bishop in the driver’s seat of her car, which was stopped in the middle of the road in Yarmouth, MA. She appeared highly intoxicated and Officer Schichilone arrested her for DUI. She could barely walk and at the police station, she exhibited volatile mood swings. A Yarmouth Police Sergeant described Bishop as “very drunk.” 

At her drunk driving trial, Bishop claimed that she was taking the anti-depressant prescription medication fluoxetine and that could have caused the symptoms which the police observed on the night she was arrested for DUI. The judge instructed the jury that Bishop was entitled to a not guilty verdict if the jury found that her intoxicated state was caused solely by the medication. On appeal,  Bishop alleged that the judge should have instructed the jury that they must find her not guilty if she was unaware that mixing fluoxetine with alcohol could have rendered her intoxicated. 

The Appeals Court disagreed with Bishop and it ruled that in an OUI liquor case, where someone mixes prescription drugs and alcohol, if alcohol contributed to the person’s impairment, the jury can find the person guilty of operating under the influence of alcohol.

Commonwealth v. Bridges, 258 Mass. 572 (1934)

Any type of alcoholic beverage, including 3.2 beer, is intoxicating if it in fact is capable of subjecting a person to its alcoholic effects.

Commonwealth v. Colby, 23 Mass. App. Ct. 1008 (1987)

Westfield, Massachusetts Police Officers found Bradley W. Colby laying across the driver’s seat in his vehicle, sound asleep. His feet were on the driver’s side of the car and his head was laying on the passenger side of the seat. The car was parked on East Mountain Road, which is a fairly major road, in the City of Westfield, Massachusetts. Colby’s keys were in the ignition, the engine was running, and the car’s headlights were on. Colby’s DWI attorney claimed that the car was not parked on a public way as required by G.L. c. 90 § 24(1)(a)(1), the Mass. DWI statute. He further claimed that Colby was not “operating” as the law also requires. The Appeals Court held that 2 wheels of Colby’s car were on the paved public street and the other 2 wheels were off the road, on an unpaved strip.  Once the Westfield Police removed Mr. Colby from his car, an officer pulled his car completely off the road.

The Appeals Court determined that there was sufficient evidence that Colby’s car was on a public way, as required by law.Next, the Appeals Court ruled that the facts and circumstances of the case were sufficient to allow a jury to conclude that Colby “operated” the car as required by law.

Commonwealth v. Congdon, 68 Mass. App. Ct. 782 (2007)

In this case, the Mass. Appeals Court ruled that operation, which is one of the required elements of the crime of operating under the influence, could be proven by circumstantial evidence. Medfield, Massachusetts police found Congdon's car on Route 27 with the engine still running and 2 flat tires. As the police were investigating, Congdon emerged from the woods. She was well dressed but extremely disheveled. She made incriminating statements such as admitting to having consumed alcohol and she asked the police if there was something that she could do to make the OUI go away.

The police did not witness Congdon driving or even in the vehicle. However, the Court ruled that there was sufficient evidence to sustain a conviction. Nobody else was around who could have driven the vehicle and all of the circumstantial evidence indicated that Congdon was the driver.

Commonwealth v. Connolly, 394 Mass. 169 (1985)

To obtain a DUI conviction, the prosecution does not need to prove that the defendant actually drove in an unsafe or erratic manner, but it must prove a diminished capacity to operate safely, by reason of alcohol, drugs, or both.

Commonwealth v. Cromwell, 56 Mass. App. Ct. 436 (2002)

Cromwell was the registered owner of the vehicle which was involved in a car accident. Trooper Deborah Hennessey of the Mass. State Police investigated the accident and found that Cromwell was shaken up, which was consistent with his having been involved in an accident. There was no other evidence that anyone else was driving Cromwell's automobile at the time of the accident.  In Mass. DUI cases, fact finders can find "operation" by circumstantial evidence.

Commonwealth v. Duconing, Mass. App. Ct., November 23, 2011.

Richard B. Ducoing, was convicted of a 5th offense DUI. On appeal, his Mass. DUI Lawyer argued, inter alia, that the subsequent offense portion of the OUI charge cannot stand because the prior OUI convictions were not adequately shown to be his convictions.

There are minor discrepancies between the biographical information in the court records and the information provided by the Registry of Motor Vehicles (RMV), but a rational fact finder could conclude that the defendant was convicted of OUI, third offense, separately in Peabody District Court and in Boston Municipal Court, Charlestown Division. The RMV records included the defendant's biographical information as well as a photograph that the trial judge could compare to the defendant in court. The defendant conceded in the trial court that the Peabody conviction established three prior OUI offenses. Even if he had not so conceded, the Peabody court record reflected the defendant's full name including middle initial, date of birth, social security number, and an address associated with him, all as reflected in the RMV records. The Charlestown record contained the defendant's name including middle initial, correct address, and month and day of birth according to the RMV records. Occasional misspellings of his last name (Docoing instead of Ducoing) and an incorrect year of birth (1990, the same year as the complaint) are obvious typographical errors that a rational fact finder could disregard. 

Shortly before oral argument, the defendant submitted a supplemental letter wherein he contended, for the first time that the admission of a document from the probation office and the admission of the Registry of Motor Vehicles (RMV) records at the subsequent offense trial violated his rights under the confrontation clause of the Sixth Amendment to the United States Constitution. The argument on the RMV records was de minimus, essentially amounting to only a citation to Commonwealth v. Parenteau, supra, without further analysis. The RMV records appear to have been properly admitted as nontestimonial business records because they were, as attested by the stamp and digital signature of the Registrar, true copies of records kept by the RMV in the ordinary course of its business.The Appeals Court ruled that there was sufficient evidence to convict the defendant of 5th offense drunk driving, which carries a lifetime license revocation in Massachusetts.

Commonwealth v. Ginnetti, 400 Mass. 181 (1987)

Officer Thomas J. Rooney of the Yarmouth, Massachusetts Police Department found Adam K. Ginnetti’s vehicle in the area of Rascal’s Saloon on Route 28 in West Yarmouth, Massachusetts. Route 28 is a state highway and unquestionably a “public way” as defined by G.L. c. 90 § 1 and G.L. c. 90 § 24(1)(a)(1). The front tires of the car were on Route 28 and the rear tires were located on a private parking lot. When Officer Rooney approached the car, he saw the tires spinning and Ginnetti rocking the vehicle forward and backwards, attempting to get it free of the sidewalk, as it appeared to be stuck. 5 people eventually pushed Ginetti’s car from the sidewalk. At trial, Ginnetti’s lawyer claimed that the car was pushed and not “operated” onto the public way. The Appeals Court held that being in the driver’s seat with the keys in the ignition and the engine running qualifies as “operation,” Also, having just 2 of 4 tires on a “public  way” satisfies the “public way” requirement of the Massachusetts OUI statute.

Commonwealth v. Gonsalves, 56 Mass. App. Ct. 506 (2002)

In this case, the Mass. Appeals Court ruled that an all-terrain vehicle (ATV), otherwise known as a "quad," or 4 wheeler, qualified as a "motor vehicle," so that a person could be convicted of DWI while operating an ATV. It is also possible to be convicted of drunk driving a snowmobile or boat. All of the same license suspension and revocation penalties apply to these convictions. Motorized wheelchairs, mopeds, and segways do not qualify as motor vehicles under the DUI law.

Commonwealth v. Hart, 26 Mass. App. Ct. 235 (1988)

A drunk driving conviction in Massachusetts requires that the crime be committed at a place where the public has the legal right of access or on a public street. In this case, the Court held that the actual character of the location where the crime allegedly occurred does not matter. Instead what matters is the appearance of the area. If the area appears to be open to the public, (i.e. its not blocked by a locked gate, no trespassing sign, private property sign, security, or other indicators that the location is private or that the public is not welcome) than even a private area can trigger liability.

Commonwealth v. Lisa Virgilio, 2011 WL 1988395

The Mass. Appeals Court reversed Lisa Virgilio's DUI conviction because the place where she was operating was not a public way or accessible to  members of the public, as invitees or licensees. She was discovered operating on a paved driveway which connects two private residences in Sutton, Massachusetts. There was nothing about the character of the driveway which would suggest that it was open to members of the public.

Commonwealth v. McGillivary, 78 Mass. App. Ct. 644 (2011)

One of the required elements in every Massachusetts DWI case is "operation." Here, the Appeals Court ruled that a inserting a car key into an automobile ignition and turning the key only partially, so that the car's electricity is turned on, without actually starting the engine, is considered "operation." The arresting officer found McGillivary sleeping in the driver’s seat, behind the wheel.

Commonwealth v. Peterson, 67 Mass. App. Ct. 49 (2006)

North Attleboro Police Officer Joshua McMahon responded to a 911 call reporting that a vehicle had driven onto the lawn of a residence. Tire marks showed that the vehicle traveled from Cumberland Avenue onto the lawn, approximately 10 feet from the street. The car came to rest against a stone wall. Through his OUI lawyer, Robert Peterson claimed that there was insufficient evidence to prove operation, a required element of the crime of operating while under the influence in Massachusetts.

The Appeals Court disagreed with Peterson's lawyer and noted that operation could be proven through entirely circumstantial evidence. Here, the suspected operator was the owner of the vehicle, he was present at the scene, and there was no evidence pointing to someone else as the driver.

Commonwealth v. Plowman, 28 Mass. App. Ct. 230 (1990)

A police officer encountered an illegally parked car on a public way in Medford, Massachusetts. The keys were in the car's ignition, the engine was running, and and both the defendant and a passenger were sleeping. The passenger owned the car and it was parked in front of her apartment. Plowman was seated in the driver's seat. He was arrested for OUI and submitted to a breathalyzer test, which showed that his blood alcohol level was .19, more than double the legal limit in Massachusetts. 

The passenger claimed that she was driving and that Plowman got into the driver's seat only to prevent her from driving. They had a conversation in the car and both fell asleep.

The trial judge mis-instructed the jury that they had to find that Plowman was "operating" on the above-listed facts, instead of that the jury could find he was operating. Plowman's DUI lawyer failed to object to this improper instruction at trial. However, the Appeals Court reversed the conviction on the grounds that it the instruction constituted a substantial miscarriage of justice. As fact-finder, if the jury believed the defendant's theory that he never drove and only sat in the driver's seat to prevent the passenger from driving, he could have been found not guilty.

Commonwealth v. Soldega, Mass. App. Ct., 2011

In Massachusetts, the crime of operating under the influence of alcohol or drugs requires that the defendant drive a motor vehicle on a public way, or where the public has a right of access, while under the influence of alcohol or drugs.  In Commonwealth v. Soldega, the Mass. Appeals Court upheld a drunk driving conviction where the defendant was driving a four-wheel all-terrain vehicle (ATV) instead of a car.  The ATV which Soldega was driving, while he was under the influence of liquor, was powered by a motor and was being operated at speeds estimated at 60 miles per hour on a public highway. Therefore, the Appeals Court ruled that while the ATV may have been a “recreational vehicle,” in this case, it also fell into the category of a “motor vehicle.”

Commonwealth v. Stathopoulos, 401 Mass. 453 (1988)

This case contains a good recitation of the jury instructions regarding the diminished capacity which the prosecution must prove, beyond a reasonable doubt, to obtain a conviction for operating under the influence of alcohol.

Commonwealth v. Stoddard, 74 Mass. App. Ct. 179 (2009)

Brian A. Stoddard was found driving while intoxicated at the Rusnik Campground in Sallisbury, Massachusetts. He was driving on a private road which could only be accessed by opening a closed gate with a key card. Access to the campground is restricted to registered campers and their guests. The Massachusetts Legislature has elected to criminalize OUI which occurs only on public ways or places where the public has right of access as invitees or licensees. It is not a crime to drive under the influence elsewhere. Consequently, because the OUI occurred on a private roadway, the Appeals Court reversed Stoddard's drunk driving conviction.

Commonwealth v. Uski, 263 Mass. 22, 24 (1928)

Operation is required for a DUI conviction. It is defined as the intentional manipulation of the ignition or any mechanical part of the vehicle, or use of any electrical agency, which alone or in sequence will set in motion the motive power of that vehicle.

Commonwealth v. Wood, 261 Mass. 458 (1927)

Wood's car was involved in a car accident in Cambridge, Massachusetts. The police found him intoxicated and slumped over the steering wheel. This was sufficient for a finding that Woods was "operating" as required by G.L. c. 90 § 24(1)(a)(1).

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