COMMONWEALTH v. LAURENT (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury-waived trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor, G. L. c. 90, § 24 (1) (a) (1). On appeal, he contends that the Commonwealth's evidence was insufficient to prove the elements of the offense. He further argues, for the first time, that as a matter of public policy, a person should not be punished for operating a motor vehicle while under the influence of alcohol if, when the operator feels the effect of the alcohol, he removes the car from the roadway. We affirm.

Background. We summarize the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On November 25, 2017, at approximately 10:30 a.m., Easton Police Officer Daniel Perry responded to a 911 call placed by Peter O'Donnell, the owner of Pete's Auto Sales located on Route 138 in Easton. O'Donnell had observed a sport utility vehicle (SUV) traveling south on Route 138. The driver of the SUV pulled into the parking lot of O'Donnell's business and parked, taking up three or four spaces. The business was open, and thinking that the driver was a potential customer, O'Donnell approached the SUV. He saw the defendant lying back in the driver's seat with his eyes closed. The defendant appeared to be semiconscious. O'Donnell was concerned and called 911.

Officer Perry arrived at the scene within five minutes. He knocked on the driver's side window several times, but the defendant did not respond. Officer Perry then opened the SUV door, and eventually the defendant woke up. Officer Perry noticed that the defendant's eyes were bloodshot and glassy, and Officer Perry detected a strong odor of alcohol. In addition, the defendant's speech was slow, and he spoke with a “thick tongue.” In response to the officer's questions, the defendant explained that he was sleeping and “needed some rest as he was going home.”

After the defendant was evaluated by emergency medical technicians, who determined that he did not need treatment, Officer Perry conducted two field sobriety tests. He first asked the defendant to recite the alphabet. The defendant acknowledged that he knew the alphabet, but would only say it in French. The defendant then began reciting the alphabet, but only reached the letter “L.” Then, Officer Perry administered the “walk and turn” test, asking the defendant to keep his arms by his side, take nine steps in a straight line touching heel to toe, turn, and proceed back, again walking heel to toe. While performing the test, the defendant missed several steps, stopped at several intervals, and stepped off the line several times. At this point, Officer Perry concluded that the defendant was intoxicated.

Subsequently, Officer Perry retrieved three bottles from the defendant's SUV: an empty brandy nip and two beer bottles, one empty and one unopened. The defendant was arrested and transported to the police station. During the booking process the defendant admitted that the key to the SUV had been in the ignition, but insisted that he had not been driving and that his SUV was not running. He added, “Most people don't do that ․ they don't stop. Most people, they don't stop. They just, like, keep driving.”

Discussion. 1. Sufficiency of the evidence. In order to convict the defendant, the Commonwealth was required to prove beyond a reasonable doubt that he “(1) operated a motor vehicle, (2) on a public way, (3) while under the influence of alcohol.” Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392 (2017). The defendant claims that the Commonwealth failed to prove all three elements.

When reviewing the sufficiency of the evidence to prove the elements of the offense, we view the evidence in the light most favorable to the Commonwealth. See Latimore, 378 Mass. at 676-677. Here, the evidence established that the defendant drove along a public highway, turned into a commercial parking lot that was open to the public, and then passed out while he was sitting in the driver's seat. In addition, the defendant exhibited indicia of intoxication, including glassy bloodshot eyes, slow speech, and lack of balance. The defendant emitted a strong odor of alcohol and failed two field sobriety tests. This evidence was sufficient to meet the Commonwealth's burden.

It matters not, as the defendant claims, that a trier of fact could find that he consumed alcohol after he had parked his car in O'Connell's lot. As noted, we view the evidence in the light most favorable to the Commonwealth and not to the defendant. Latimore, 378 Mass. at 676-677. Nor was the Commonwealth required to establish that the key was in the “on” position to prove operation because the defendant was observed driving his SUV (on a public way) before he stopped and parked. Lastly, the absence of evidence that the defendant drove erratically does not amount to a showing of insufficiency. Although erratic driving is generally a strong indicator of impairment, the Commonwealth need not prove that the defendant actually drove in an unsafe or erratic manner. See Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). Proof of a diminished capacity to operate safely is all that is required. See id. Here, the evidence of the defendant's intoxication was sufficient to prove this element beyond a reasonable doubt.

2. The “shelter” defense. The defendant asks that we adopt a shelter defense for those persons who, while operating a motor vehicle after consuming alcohol, stop their motor vehicles because they feel the effect of alcohol. We decline the invitation. Apart from the fact that we do not have the authority to recognize a defense where, as here, the Supreme Judicial Court has already rejected it, see Commonwealth v. Otmishi, 398 Mass. 69, 71 (1986), we agree with the observation made by Massachusetts Appeals Court Associate Justice Kent B. Smith that “a better policy is for a person who drinks alcohol to anticipate and ascertain his or her ability to operate a motor vehicle before attempting to do so,” Commonwealth v. Kiss, 59 Mass. App. Ct. 247, 250-251 (2003).

Judgment affirmed.