Opinion
22-P-764
08-14-2024
COMMONWEALTH v. MICHAEL J. WURTZBERGER.
Genevieve K. Henrique for the defendant. Rose-Ellen El Khoury, Assistant District Attorney, for the Commonwealth.
Heard: January 10, 2024.
Complaint received and sworn to in the Falmouth Division of the District Court Department on September 13, 2021.
The case was tried before Lisa F. Edmonds, J.
Genevieve K. Henrique for the defendant.
Rose-Ellen El Khoury, Assistant District Attorney, for the Commonwealth.
Present: Henry, D'Angelo, & Hodgens, JJ.
HENRY, J.
This appeal calls on us to review the boundaries of our case law defining the elements of operation and public way under G. L. c. 90, § 24 (1) (a.) (1), which prohibits operating a motor vehicle while under the influence of intoxicating liquor (OUI). Following a jury trial, the defendant, Michael Wurtzberger, was found guilty of OUI, in violation of G. L. c. 90, § 24 (1) (a) (1). The defendant waived a jury trial on the subsequent offense portion of the complaint charging OUI, and the same judge who presided over the jury trial found him guilty of OUI, fifth offense. We conclude that a municipal lot that limits parking to residents displaying a sticker can be a public way where ingress and egress to an abutting public road are unrestricted. Here, the Commonwealth presented sufficient evidence that the parking lot in which the defendant was parked was a public way. We also reaffirm the longstanding rule that evidence showing that an occupant in the driver's seat of a vehicle with the key in the ignition and the vehicle's electrical system engaged is sufficient to establish the element of operation. In light of the additional evidence sufficient to demonstrate that the defendant was impaired at the time of operation, we affirm.
After the jury-waived trial, the defendant pleaded guilty to OUI with a license suspended for OUI, G. L. c. 90, § 23. The Commonwealth dismissed a charge of operating a motor vehicle with a license suspended for OUI, G. L. c. 90, § 23. During the plea hearing, the defendant was found not responsible for the civil infraction of possession of an open container of alcohol in a motor vehicle, G. L. c. 90, § 241.
Background.
1. The municipal lot.
The defendant was sitting in the driver's seat of a van parked in a municipal lot serving Electric Avenue Beach in the town of Bourne. The lot abuts Gardinier Avenue, a public road, as a "continuous paved surface." The parking spaces are demarcated by painted lines. No physical barriers separate the lot from the road. There is no gatehouse or gate. The beach, lot, and road are all maintained by the town. Like all but one of the beaches in Bourne, parking is available only to residents, taxpayers, and those with a town mooring or shellfish permit. A qualifying individual must purchase a parking permit sticker from the appropriate municipal department and display the sticker on their vehicle when parked in the lot. Signage indicates that a sticker is required for parking and displays the lot's hours of operation. Town police officers periodically patrol the lots.
2. The incident.
On September 12, 2021, a resident of the area near Electric Avenue Beach contacted the Bourne police department and reported that a U-Haul van had been parked for several days and nights in the municipal parking lot and that two men were observed urinating in the lot near the van. At 4:30 P..M., police officer Andrew Weddell and another officer went to the parking lot to investigate. Upon arrival, Weddell observed a U-Haul van parked in the back right corner of the lot, near a tree. Weddell approached the vehicle and observed the defendant in the driver's seat of the van. The key was in the ignition and the vehicle's radio was on. Upon speaking with the defendant, Weddell detected an "overwhelming" odor of alcohol from both the defendant's breath and the passenger compartment of the vehicle. The defendant's eyes were red, bloodshot, and glassy and his speech was slurred and thick. Weddell saw a half-empty "handle" of vodka in the cupholder and an empty handle of vodka next to the defendant's seat "in almost the floorboard area." The defendant informed Weddell that he did not have a parking permit for the lot and admitted to having consumed four beers about an hour before the officers' arrival.
"Handle" is slang for a 1.75-liter bottle of alcohol. See King v. Commonwealth, 513 S.W.3d 919, 924 (Ky. 2017).
Weddell ultimately asked the defendant to exit the van in order to perform field sobriety tests. The van was parked too close to the tree and the defendant was unable to open the door enough to get out. Weddell asked if the defendant was able to climb over the center console and exit on the passenger side. The defendant explained that he could not do so as a result of a recent spinal fusion surgery. Given these limitations and the need for the defendant to get out of the vehicle, Weddell advised him to engage the engine, put the van in drive, and roll the van a few feet forward to move past the tree so that the defendant could open his door. The defendant complied with this instruction.
Weddell had the defendant get out of the vehicle, and the defendant nearly fell out in the process. The defendant had difficulty standing and walking. The defendant was unable to correctly perform any of three field sobriety exercises.Weddell, having formed the opinion that the defendant was "highly impaired," placed the defendant under arrest.
When asked to recite the alphabet, the defendant made it to the letter "T" and stopped; after a pause, the defendant asked if Weddell wanted him to "recite the rest." Continuing from where he had left off, the defendant concluded with "L, M, X, R, Y, Z." When instructed to count down from fifty to thirty, the defendant counted up into the sixties, stopped, and acknowledged that Weddell had asked him to count down. He then started to count backwards incorrectly. When the defendant assumed the instructional position for the nine-step walk and turn test, he again nearly fell over and had to be caught by Weddell and the other officer.
Discussion.
1. Sufficiency of the evidence of QUI.
"[W]e consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). "The inferences that support a conviction 'need only be reasonable and possible; [they] need not be necessary or inescapable.'" Commonwealth v. Waller, 90 Mass.App.Ct. 295, 303 (2016), quoting Commonwealth v. Woods, 466 Mass. 707, 713 (2014). 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 impaired by the influence of intoxicating liquor. Commonwealth v. AdonSoto, 475 Mass. 497, 509 (2016). Because the defendant does not challenge the evidence that he was impaired on appeal, we address only the first two elements of the offense.
a. Sufficiency of operation evidence.
It has been the law of the Commonwealth for nearly a century that "[a] person operates a motor vehicle within the meaning of G. L. c. 90, § 24, when, in the vehicle, [t]he [person] intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle." Commonwealth v. Uski, 263 Mass. 22, 24 (1928). See Commonwealth v. Gandia, 492 Mass. 1004, 1007 n.6 (2023) (citing Uski for proposition that "any intentional act setting in motion power of vehicle constitutes operation of vehicle within statute governing offense of operation of vehicle while under influence of intoxicating liquor"). Here, it did not matter that at the time of the investigatory stop, there was no evidence that the defendant had started the motor or moved the van while under the influence of intoxicating liquor. Operation encompasses both driving the vehicle and "setting in motion of the operative machinery of the vehicle." Uski, supra. Accordingly, we have held that "plac[ing] the key in the ignition and turn[ing] the electricity on without starting the engine" constitutes "operation" for purposes of G. L. c. 90, § 24. Commonwealth v. McGillivary, 78 Mass.App.Ct. 644, 646 (2011). The concerns that undergird the decisions in Uski, McGillivary, and the cases in between continue to apply.
In this case, the evidence established that when the police arrived at the parking lot, the defendant was in the driver's seat of the van and indisputably impaired by the consumption of alcohol. The radio was on, from which the jury could reasonably infer that the van's electronic components were engaged. There was therefore sufficient evidence of operation. See Commonwealth v. Ginnetti, 400 Mass. 181, 184 (1987) ("a person . . . operates a motor vehicle by starting its engine or by making use of the power provided by its engine"); Commonwealth v. Clarke, 254 Mass. 566, 568 (1926) (defendant may operate motor vehicle in violation of c. 90, § 24, where engine is not running); Commonwealth v. Cavallaro, 25 Mass.App.Ct. 605, 607 (1988) (to operate vehicle it is not necessary for engine to be running). See also Commonwealth v. Eckert, 431 Mass. 591, 599 (2000) (operation is not limited to driving a vehicle or setting it in motion but also encompasses the intentional act of starting the vehicle's engine); Commonwealth v. Hilton, 398 Mass. 63, 67 (1986) (sufficient evidence of operation where defendant found asleep alone in vehicle half sitting, half lying with her feet on floor near brake and accelerator pedals; keys were in ignition though engine was off; and she told police she was on her way to Lynn after dropping friend in Reading).
Even in cases where there is no evidence that the defendant moved the vehicle while intoxicated but is found in the driver's seat with the key in a position that engages the vehicle's electrical system, the circumstances permit, though do not mandate, a guilty verdict. For example, in McGillivary, the defendant was found "slumped over the wheel of the van holding a roast beef sandwich in his hands, with sauce dripping down his hand" with the key in the ignition turned to the "on" position so that the "'energy to the vehicle was on,' but the engine itself was off." McGillivary, 78 Mass.App.Ct. at 650. In that case, we held that even if the jury credited the testimony of the defendant's "friend that the friend left the defendant passed out in the passenger seat and threw the keys on the passenger side floor when he left the vehicle," evidence of operation was sufficient "because the jury could reasonably have inferred that the defendant, who admitted moving from the passenger seat into the driver's seat, picked up the key and put it in the ignition when he moved to the driver's seat" where a police officer found him. I_d. at 650-651. Similarly, in Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 320 (1994), where the evidence did not warrant a reasonable inference that the defendant became impaired by alcohol before rather than after he parked his vehicle, we held that because the defendant was in the driver's seat with the key in the ignition, radio playing, and engine running, there was sufficient evidence to establish the element of operation.
The defendant nonetheless contends that the evidence is not sufficient because it was possible that his friend, who was the lessee of the van and sitting in the passenger seat, activated the electrical system of the van, or the defendant could have crawled into the driver's seat from the passenger side only to realize in hindsight that he could not crawl out. These arguments miss the mark as they do not consider the evidence and reasonable inferences in the light most favorable to the Commonwealth as we are required to do. In particular, the evidence showed that the defendant explained to Weddell that he was unable to climb over the center console because he "couldn't move or twist in that way" due to recent spinal fusion surgery. Further, the Commonwealth "need not exclude every reasonable hypothesis of innocence, provided the record as a whole supports a conclusion of guilt beyond a reasonable doubt." Commonwealth v. Merola, 405 Mass. 529, 533 (1989), quoting United States v. Systems Architects, Inc., 757 F.2d 373, 377 (1st Cir.), cert, denied, 474 U.S. 847 (1985). In any event, it is sufficient that the defendant was in the driver's seat of the vehicle and the electrical system was engaged because that is behavior that c. 90, § 24, seeks to deter. As we explained in McGillvary:
"[t]he purpose of G. L. c. 90, § 24, is to 'protect[] the public from intoxicated drivers,' by 'deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.' . . . Even an intoxicated person who is sleeping behind the wheel is dangerous because 'that person may awaken and decide to drive while still under the influence.'" (Citations omitted.)McGillivary, 78 Mass.App.Ct. at 646-647.
The defendant also argues that he and his friend had been camping in the van for days, using it as a stationary home with no foreseeable use of the van as a means for transport. This argument fails, too, because the van was operable as a motor vehicle and did not "lose its character as a vehicle," even if jurors drew an inference that the van had not moved for a few days. Ginnetti, 400 Mass. at 184 (vehicle with functioning engine not inoperable "merely because it is immovable due to road or other conditions not involving the vehicle itself").
b. Sufficiency of public way or place evidence.
At trial, the Commonwealth bore the burden of proving that the defendant operated a motor vehicle upon a public way or place. See Commonwealth v. Tsonis, 96 Mass.App.Ct. 214, 217 (2019). A public way is "any way or . . . any place to which the public has a right of access, or . . . any place to which members of the public have access as invitees or licensees." Id., quoting G. L. c. 90, § 24 (1) (a) (1). "Way" is further defined to include "any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers." Commonwealth v. Belliveau, 76 Mass.App.Ct. 830, 832 (2010), quoting G. L. c. 90, § 1.
The defendant points to several factors to argue that the parking lot was not a public way. He notes, correctly, that parking at the lot was restricted to those with a permit. The lot was not open to the general public for parking and had signage noting the parking restrictions. These arguments are unavailing.
The defendant's friend was ticketed for parking in the lot without having such a permit.
We have repeatedly held that a driver need not have a right in fact to operate on the way; rather, the question is whether "members of the public may reasonably conclude that it is open for travel to invitees or licensees." Commonwealth v. Virgilio, 79 Mass.App.Ct. 570, 572-573 (2011) (listing cases) . See Commonwealth v. Angelo Todesca Corp., 44 6 Mass. 128, 143 (2006); Commonwealth v. Brown, 51 Mass.App.Ct. 702, 710 (2001); Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549 (1996); Commonwealth v. Hart, 26 Mass.App.Ct. 235, 238 (1988) . It is sufficient that some members of the public have access as licensees or invitees to establish that the way in question is public. See Brown, supra at 712. We look to the characteristics of the way to determine if there is sufficient "indicia of accessibility to the public" by motor vehicle such as paving, curbing, traffic signals, streetlights, and abutting houses or businesses. Belliveau, 76 Mass.App.Ct. at 832-833, quoting Smithson, supra at 549-550; Brown, supra at 711 (listing cases); Hart, supra (listing cases). "Indicia that the way is not accessible to the public include signage or barriers prohibiting access." Belliveau, supra at 833.
Here, the parking lot adjoins the public road and no barrier separates the parking lot from the road; it was a continuous paved surface. Compare Commonwealth v. Cabral, 77 Mass.App.Ct. 909, 910-911 (2010) (sufficient evidence of public way where there was street sign on corner and officer testified city maintains street), with Commonwealth v. Stoddard, 74 Mass.App.Ct. 179, 183 (2009) ("presence of a gate severely restricting general access to the campground" important to question of whether general public might reasonably believe they could access roadway). Though a small sign indicated that parking in the lot was by sticker only, the jury could reasonably infer beyond a reasonable doubt that nothing prevented an individual from driving a vehicle into the lot to launch a boat, drop off beach users, or simply enjoy the view, without parking. See Commonwealth v. Kiss, 59 Mass.App.Ct. 247, 250 (2003) (mall parking lot open to general public during day and with operable pay telephones and after hours ATM machine public way for purposes of c. 90, § 24); Brown, 51 Mass.App.Ct. at 712 (roadways on Massachusetts military reservation public ways because "a considerable number of persons," including military personnel and their families, "[were] authorized to, and routinely [did]," travel on them); Commonwealth v. Muise, 28 Mass.App.Ct. 964, 965-966 (1990) (paved private road extending from public highway to mobile home trailer park with no signs restricting access was public way); Hart, 26 Mass.App.Ct. at 236-237 (private way that was continuation of public way, that had no gate or signs to mark its status, and that was used generally by the public for access to various commercial buildings on both sides of private portion, was public way). Cf. Virgilio, 79 Mass.App.Ct. at 574-575 (private driveway "shared by and accessible to the occupants and guests of two residential buildings" not public way); Commonwealth v. Callahan, 405 Mass. 200, 203-204 (1989) (where public used sand pits for recreation but "no trespassing" signs were posted and landowners asked police to patrol area, property not public way). In the light most favorable to the Commonwealth, there was sufficient evidence for the jury to find that the parking lot at issue here was a public way.
The parking lot abutted a beach maintained by the town. "The hours of operation for both the beach and surrounding area," which includes an adjacent boat ramp, were "between six o'clock in the morning and ten o'clock at night." The signage prohibited parking, not stopping, or standing.
The defendant renewed his motion for a required finding of not guilty at the conclusion of all the evidence, thus, "[w]e also consider the state of the evidence at the close of all the evidence, to determine whether the Commonwealth's position as to proof deteriorated after it closed its case." Commonwealth v. Alden, 93 Mass.App.Ct. 438, 445 (2018), cert, denied, 139 S.Ct. 2010 (2019), quoting Commonwealth v. Sheline, 391 Mass. 279, 283 (1984). Here, after the Commonwealth rested, the defendant presented one witness, Donald Picard, a licensed private investigator who served on the board of selectman in Bourne between 2009 and 2018. Picard testified that the town of Bourne maintains the Electric Avenue Beach lot and that permits are required for vehicles to park in the lot. The fact that parking is restricted to permit holders does not detract from the evidence that a motorist could drive into and through the lot. Therefore, the evidence the defendant presented was not "so overwhelming that no rational jury could conclude that the defendant was guilty." Commonwealth v. Ross, 92 Mass.App.Ct. 377, 381 (2017), quoting Commonwealth v. O'Laughlin, 446 Mass. 188, 204 (2006).
2. Evidence of subsequent offense.
The defendant argues for the first time on appeal that the evidence was insufficient to prove that he had previously been convicted of OUI. To convict the defendant of OUI, fifth offense, the Commonwealth was required to prove that the defendant was the same person named in a prior conviction of OUI, fourth offense. Corroboration of the defendant's name is not enough. See Commonwealth v. Koney, 421 Mass. 295, 301-302 (1995).
Here, the booking officer identified the defendant as the individual he processed on September 12, 2021. He also testified that the defendant provided his full name, including middle initial, date of birth, weight, height, and social security number. The Commonwealth introduced a certified prior conviction for OUI, fourth offense, and a certified copy of the defendant's driving history from the registry of motor vehicles (RMV records). The RMV records correlated with the name and date of birth contained on the certified conviction for OUI, fourth offense, dated August 29, 2006. The RMV records also had the defendant's name and date of birth and listed a conviction for OUI on August 29, 2006. The driving history also matched the dates of the charge and conviction provided on the Plymouth District Court docket. This evidence was sufficient to prove beyond a reasonable doubt that the defendant had previously been convicted of OUI, fourth offense. See Commonwealth v. Bowden, 447 Mass. 593, 602 (2006).
Judgments affirmed.
D'ANGELO, J. (concurring).
I agree that based on the facts of this case, and the status of the law as it now stands, the defendant's conviction must be affirmed. I write separately to highlight that trial judges often have to grapple with the issues of operation and public way, as the thoughtful judge did in this case, and urge the Legislature or the Supreme Judicial Court (SJC) to further define "operation" and "public way" and clarify whether "operation" requires some type of movement of the vehicle or intent to move the vehicle while under the influence of alcohol and whether a parking lot where an ordinary citizen is not allowed to park is a "public way" pursuant to G. L. c. 90, § 24.
1. Operation.
The van in this case had been in the parking lot for multiple days and the defendant and his friend had been sleeping in the van. On September 12, 2021, the van was parked so close to a tree that the driver's door could not be opened enough for the defendant to exit. The defendant could not climb over the center console because of a previous injury. Although no one ever saw the defendant move the van, viewed as a whole, the evidence was sufficient to support an inference that the defendant is the one who drove the vehicle into the parking spot and is the one who put the key in the ignition.
At trial and on appeal, neither party raised the issue of the defendant being ordered by the police to put the key back into the ignition and move the car. Although there was no limiting instruction, the Commonwealth never suggested this could be evidence of operation.
Evidence of the defendant's driving into the parking spot and putting the key into the ignition, however, is not sufficient to prove operating a motor vehicle while under the influence because there was no evidence, direct or circumstantial, that the defendant was impaired at the time he drove the van into the parking spot. Contrast Commonwealth v. Beltrandi, 89 Mass.App.Ct. 196, 199-202 (2016). There must be proof that the "operation" occurred at a time when the defendant was impaired by the consumption of alcohol. See G. L. c. 90, § 24 (1) (a.) (1) . The Commonwealth presented no evidence, direct or circumstantial, that the defendant drove the van while impaired. However, under the current state of the law, the Commonwealth need not present any evidence of movement of the van to satisfy the element of "operation." See Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 320 (1994) ("It has long been recognized that a vehicle may be operated when standing still" [quotation and citation omitted]). See also Commonwealth v. Ginnetti, 400 Mass. 181, 183-184 (1987).
The Legislature has never defined "operation" in G. L. c. 90, § 24. Therefore, we must look to the case law that has developed over the years since enactment of the statute in 1906. See St. 1906, c. 412, § 4. In Commonwealth v. Uski, 263 Mass. 22, 24 (1928), the SJC held that "[a] person operates a motor vehicle within the meaning of G. L. c. 90, § 24, when, in the vehicle, [t]he [person] intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle."
More recently, in Commonwealth v. McGillivary, 78 Mass.App.Ct. 644, 646 (2011), this court held that a defendant who is in the driver's seat and places the "key in the ignition and turns the electricity on without starting the engine may be found to be 'operating' the vehicle for purposes of G. L. c. 90, § 24." We considered the public policy underlying the Massachusetts operating under the influence of intoxicating liquor (OUI) statute in McGillivary: "The purpose of G. L. c. 90, § 24, is to protect[] the public from intoxicated drivers by deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers" (quotation and citation omitted). McGillivary, supra at 646-647. We also quoted the Vermont Supreme Court with agreement that "[e]ven an intoxicated person who is sleeping behind the wheel is dangerous 'because that person may awaken and decide to drive while still under the influence.'" I_d. at 647, quoting State v. Kelton, 168 Vt. 629, 630 (1998).
In this case, we conclude that putting a key into the ignition of a vehicle and playing the radio "could be found to be part of a sequence that would set the vehicle's engine in motion and that would, thus, constitute operation." McGillivary, 78 Mass.App.Ct. at 646. The defendant asks us to clarify the law of Uski and McGillivary, suggesting that if an investigatory stop of the car is not incident to it moving, the Commonwealth should be required to prove more than just that the key was inserted into the ignition and in a position where the engine could be started. The defendant's suggestion has a sound basis.
The majority opinion cites numerous cases which have addressed the element of "operation." In these cases, there was also evidence of the vehicle actually moving or that supported a reasonable inference of movement while the defendant was intoxicated shortly before encountering police. See, e.g., Ginnetti, 400 Mass. at 183-184 (although no movement, engine was running and officer observed defendant in driver's seat attempting to move vehicle off sidewalk by spinning tires); Commonwealth v. Hilton, 398 Mass. 63, 67-68 (1986) (defendant's statement implied she had just been driving prior to police encounter); Commonwealth v. Clarke, 254 Mass. 566, 568 (1926) (defendant put vehicle into neutral while on hill and vehicle rolled forward and collided with another vehicle); Commonwealth v. Cavallaro, 2 5 Mass.App.Ct. 605, 606 (1988) (no movement of vehicle but dispute as to whether engine was running).
With some modern vehicles having more advanced technologies which allow a person to engage the vehicle's electrical system without turning a key, or even pressing a button, and even without being in the car, the point where operation begins may be less clear than it was when Uski and even McGillivary were decided. Additionally, many people live in cars and recreational vehicles (RV) that rarely, if ever, move. If an RV is parked in an RV lot, and a person is in the driver's seat, is that person prevented from drinking alcohol if there has been no movement of the RV in weeks and there is no intention to move the RV? The answer may very well be yes, but it is the Legislature or the SJC who should decide whether that is "operation."
2. Public way.
The Commonwealth must prove that the operation took place "upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees." G. L. c. 90, § 24 (1) (a.) (1) . The area need not be accessible to all members of the pubic as invitees or licensees; it is sufficient if only some members of the public have this access. Commonwealth v. Brown, 51 Mass.App.Ct. 702, 712 (2001) .
Many states have no "public way" element in their OUI statutes. See, e.g., State v. King, 346 Conn. 238, 249 (2023) (Connecticut OUI statute requires proof that defendant (1) operated (2) a motor vehicle, (3) while under the influence of intoxicating liquor or drugs or both"); Velazco v. State, 342 So.3d 614, 618 (Fla. 2022) (no public way requirement under Florida law); Heath v. State, 349 Ga.App. 84, 87 (2019); (no public way requirement under Georgia law); State v. Zarwie, 995 N.W.2d 303, 303 (Iowa Ct. App. 2023) (Iowa OUI statute has just two elements: "(1) the defendant was operating a motor vehicle, (2) and at that time they were "under the influence of an alcoholic beverage or other drug or a combination of such substances" [quotation and citation omitted]); State v. Ahrens, 296 Kan. 151, 160 (2012) (Kansas OUI statute requires proof of "driving and simultaneously being under the influence"); State v. Guzman, 366 Ore. 18, 40 (2019) (in Oregon, "[a] conviction may result if a jury agrees beyond a reasonable doubt that the accused (1) drove a motor vehicle (2) while under the influence of intoxicants" [quotation and citation omitted]).
In Commonwealth v Tsonis, 96 Mass.App.Ct. 214, 218 (2019), we stated, "[s]o long as the public is allowed to access the place, even merely to drop off a passenger, it is a public place." In this case, the Commonwealth presented no evidence that a person could be permissibly dropped off in the parking lot. The majority refers to the fact that people were permitted to access the lot "to launch a boat, drop off beach users, or simply enjoy the view, without parking." However, there was no evidence in this case of any of those things. In fact, the testimony was that the defendant's friend received a citation for parking the van in "an area where you need a permit." Furthermore, only Bourne residents and taxpayers who purchased a beach sticker or mooring holders and shellfish fishers with proper permitting could permissibly park in the lot. A sign posted in the lot gave notice that the general public was not permitted to park in the lot. If that were the end of the analysis, a required finding of not guilty should have been entered.
However, "[i]t is the status of the way, not the status of the driver, which the statute defines . . . . i.e., it is sufficient if the physical circumstances of the way are such that members of the public may reasonably conclude that it is open for travel to invitees or licensees." Commonwealth v. Hart, 26 Mass.App.Ct. 235, 237-238 (1988). "Whether a particular way is accessible to the public as invitees or licensees, within the meaning of the statute, is a legal conclusion that we consider independently." Commonwealth v. Virgilio, 79 Mass.App.Ct. 570, 573 (2011). Accord Commonwealth v. Stoddard, 74 Mass.App.Ct. 179, 182 (2009); Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549 (1996). "If the invitation or license is one that extends (or appears, from the character of the way, to extend) to the general public, the way is covered; if instead the license or invitation is privately extended to a limited class, the way is not covered." Stoddard, supra at 182-183.
It is "the objective appearance of the way that is determinative of its status, rather than the subjective intent of the property owner." Commonwealth v. Belliveau, 76 Mass.App.Ct. 830, 832 (2010), quoting Commonwealth v. Kiss, 59 Mass.App.Ct. 247, 249-250 (2003). We look to see if the "physical circumstances of the way are such that members of the public may reasonably conclude that it is open for travel." Hart, 26 Mass.App.Ct. at 238.
Despite the Commonwealth presenting very little evidence about who had permission to use the parking lot for purposes other than parking a vehicle, I concur with the majority that, under our case law, the beach parking lot was a "public way." Cf. Virgilio, 79 Mass.App.Ct. at 574. Although there was a sign inside the lot that notified drivers that they could not park, there was nothing outside the lot that would objectively put a person on notice that a car without a permit could not be in the parking lot. If there had been signs outside the lot, or some type of gate, my view might be different.
Conclusion.
Attorneys, judges, and the general public should have clarity in what constitutes a crime. In the context of OUI cases, which are among the most litigated types of cases tried in Massachusetts, trial judges often deal with the issues of "operation" and "public way." I urge the Legislature or the SJC to clarify whether "operation" necessitates some type of movement or intent to move the motor vehicle while under the influence. Additionally, since "public way" continues to be an element of the crime of OUI, further elaboration is required as to what type of parking lots, if any, constitute a "public way."