Opinion
16-P-433
04-20-2017
COMMONWEALTH v. Albert MAGINNIS, Jr.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Albert Maginnis, Jr., appeals after his conviction after a bench trial of having committed a fourth offense of operating a motor vehicle while under the influence of intoxicating liquor (OUI), in violation of G. L. c. 90, § 24(1)(a )(1). On appeal, he claims the evidence was insufficient to prove two of the three prior offenses. We affirm.
To meet its burden of proof, the Commonwealth was required to prove beyond a reasonable doubt that "the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense three times...." G. L. c. 90, § 24(1)(a )(1), as amended by St. 1994, c. 25, § 3. To that end, the Commonwealth sought to establish that the defendant (1) admitted to sufficient facts to support a charge of OUI in two separate cases on July 31, 1981, in the Woburn Division of the District Court Department (Woburn District Court); and (2) was convicted of OUI on October 27, 1982, in the Salem Division of the District Court Department. The defendant concedes that the latter conviction qualifies as a predicate offense. He claims, however, that the Commonwealth has not met its burden because it failed to prove, with respect to both admissions to sufficient facts, that he was "assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction." We disagree.
To prove the first offense, the Commonwealth introduced a certified copy of a docket sheet from the Woburn District Court, showing that Albert J. Maginnis, Jr., was charged, by the Burlington police department, with "operating under the influence" on July 9, 1981 (Burlington case). The docket also showed that the matter was continued without a finding on July 31, 1981, for one year. The case was dismissed on July 26, 1983.
To prove the second offense, the Commonwealth introduced another certified copy of a docket sheet from the Woburn District Court, showing that Albert J. Maginnis, Jr., was charged, by the Woburn police department, with "operating under the influence" on July 9, 1981 (Woburn case). The docket also showed that the matter was continued without a finding on July 31, 1981, and the defendant was assigned to an alcohol safety action program (ASAP). Although the docket does not indicate when this case was dismissed, the defendant's board of probation record indicates that it was dismissed on July 26, 1983.
The defendant's argument that the judge erred by taking judicial notice that the acronym "ASAP" refers to an "alcohol safety action program" has no merit and we need not address it.
Next, the Commonwealth introduced a number of certified records from the Registry of Motor Vehicles relating to the defendant's driving history. The records contain "a complete list of all offenses and actions on file" and reflect that the defendant had been placed in three "DWI [a]lcohol [p]rogram [s]." Specifically, the record reflects that the defendant was assigned to "DWI [a]lcohol [p]rogram Burlington, DWI [a]lcohol [p]rogram Woburn, DWI [a]lcohol [p]rogram Salem." These locations and the corresponding dates are consistent with the information set forth in the certified docket sheets.
This information is also consistent with the defendant's board of probation record that included two entries reflecting a continuance without a finding on the Burlington and Woburn cases on July 31, 1981.
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Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the Commonwealth's exhibits, all of which were introduced without objection, proved three prior OUI offenses beyond a reasonable doubt. Furthermore, as the Commonwealth correctly notes in its brief that, at the time the Burlington and Woburn cases were resolved, the defendant was only eligible for a continuance without a finding, pursuant to G. L. c. 90, §§ 24D & 24E, if he was also "assigned to an alcohol education program" as a term of his probation. See Commonwealth v. Murphy, 389 Mass. 316, 322 (1983). Thus, the judge reasonably could have inferred from the dispositions themselves that the defendant had been placed in alcohol education programs.
Judgment affirmed.