COMMONWEALTH v. KEANE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of alcohol (OUI), in violation of G. L. c. 90, § 24 (1) (a) (1), and negligent operation of a motor vehicle, in violation of G. L. c. 90, § 24 (2) (a). On appeal, the defendant claims that there was insufficient evidence to support her convictions. We affirm.

Background. We summarize the facts that the jury could have found in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).

On May 29, 2017, at approximately 3 a.m., Michael Pell, an Uber driver, was driving on Route 6 on Cape Cod between Brewster and Sandwich. Given the hour, there was no traffic. At one point, Pell saw the car in front of him swerve over the fog line a few times. When the driver drove off the road and onto the shoulder, Pell became concerned and called the police. A dispatch regarding an erratic driver ensued. Pell followed the car until the driver pulled into a rest area and then he continued on his way. State Trooper Katie Lorenco was in the area when she heard the dispatch. She took a position in the median of Route 6 and waited for a car to approach. Soon thereafter, she stopped a car, but the driver showed no signs of intoxication. As Trooper Lorenco was assessing the driver, Pell arrived. He pulled up to the trooper and identified himself as the person who had called about the car that had gone off the road. He explained that the driver of that car had pulled into a rest area. Trooper Lorenco then proceeded to the rest area.

Meanwhile, State Trooper Shawn Ring, who also was on patrol nearby, heard a second dispatch indicating that the motor vehicle in question had stopped in a rest area and he proceeded to that location. There was only one car in the rest area when Trooper Ring arrived about three minutes later. The defendant was sitting in the driver's seat with the keys in the ignition and her seat belt fastened. The defendant did not respond immediately when Trooper Ring knocked on her window. Eventually, the defendant opened the window, and Trooper Ring detected a strong odor of alcohol. The defendant said she was tired and had been in the rest area for thirty minutes. Trooper Ring observed that the defendant appeared confused, she was slow to answer questions, her speech was slurred, and her eyes were bloodshot. Trooper Lorenco, who arrived shortly thereafter, made similar observations. The defendant resisted when she was instructed to get out of the car. When she did comply, she was unsteady on her feet and swayed from side to side. The troopers concluded that the defendant was under the influence of alcohol and placed her under arrest. Thereafter, the defendant was uncooperative during the booking process and made threats implying that the troopers would lose their jobs as a result of arresting her.

Discussion. 1. Operation. The defendant contends that the evidence presented at trial, even when viewed in the light most favorable to the Commonwealth, did not establish that she operated the motor vehicle in question. Operation of a motor vehicle is an element of both OUI and negligent operation of a motor vehicle so as to endanger. In order to sustain a conviction for OUI, the Commonwealth must prove that the defendant (1) operated a motor vehicle, (2) on a public way (3) while under the influence of alcohol. See G. L. c. 90, § 24 (1) (a) (1). To sustain a conviction of negligent operation, the Commonwealth must prove that the defendant operated a motor vehicle negligently on a public way so as to endanger the lives or safety of the public. See G. L. c. 90, § 24 (2) (a).

“Proof of operation of a motor vehicle may ‘rest entirely on circumstantial evidence.’ ” Commonwealth v. Peterson, 67 Mass. App. Ct. 49, 52 (2006), quoting Commonwealth v. Cromwell, 56 Mass. App. Ct. 436, 438 (2002). Here, the circumstantial evidence of operation included the following: (1) When Trooper Ring arrived at the defendant's car within minutes of learning the motor vehicle in question had pulled into the rest area, the defendant was sitting in the driver's seat, her seat belt was fastened, and the car's key was in the ignition; (2) Trooper Ring did not observe any person other than the defendant who could have driven the car to the rest stop; (3) the defendant's car was the only one in the rest area; and (4) a concerned citizen, Pell, had seen a car driving erratically before pulling into the rest area. Viewed as a whole, this evidence was sufficient to allow a rational juror to conclude beyond a reasonable doubt that the defendant had operated her motor vehicle on Route 6 before parking in the rest area.

2. Impairment. The defendant also contends that the Commonwealth failed to prove that her ability to operate a motor vehicle had been impaired by her consumption of alcohol. To begin with, Pell observed the defendant driving erratically. That evidence, coupled with evidence of the defendant's slurred speech, apparent confusion, delay in responding to questions and instructions, and unsteadiness, coupled with the odor of alcohol was sufficient to support the jury's conclusion that the defendant's capacity to drive safely was impaired. See Commonwealth v. Shabo, 47 Mass. App. Ct. 923, 924 (1999). See also Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 354 (2015) (offense of OUI requires Commonwealth to prove “both that the defendant consumed alcohol and that his capacity to drive safely was impaired, but it does not require the Commonwealth to prove the defendant actually drove unskillfully or carelessly” [quotation omitted] ).

3. Negligent operation. Lastly, the defendant contends that the evidence failed to demonstrate that she operated her car negligently. However, it was both reasonable and permissible for the jury to infer that the defendant operated her motor vehicle in a negligent manner based on Pell's testimony. Pell observed the defendant cross over the fog line and at one point drive off the road. Moreover, the statute requires proof that the defendant's conduct might have endangered the safety of the public, not that it in fact did. See Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 923 (2004). See also Commonwealth v. Constantino, 443 Mass. 521, 526-527 (2005) (“a person may operate a vehicle in such a way that would endanger the public although no other person is on the street”).

Judgments affirmed.