Opinion
No. 16–P–139.
10-18-2016
COMMONWEALTH v. Joan DIEBOLD.
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 under the influence of intoxicating liquor (OUI), G.L. c. 90, § 24(1)(a ) (1), and negligent operation of a motor vehicle, G.L. c. 90, § 24(2)(a). After a subsequent jury-waived trial, the judge found that it was the defendant's second OUI conviction. On appeal, the defendant claims the evidence was not sufficient to sustain her convictions. We affirm.
The defendant challenges the sufficiency of the evidence only on the underlying convictions of negligent operation and OUI.
Background. We summarize the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979). At approximately 11:00 A.M. on April 3, 2014, police Officer Timothy Minor was traveling northbound on Ayer Road in Harvard in moderate traffic. From a position directly behind the defendant's vehicle, he observed it swerve back and forth several times from the center line to the fog lanes, such that, on multiple occasions, the driver's side wheels of the defendant's vehicle crossed over the center line. He also observed that the vehicle was traveling at approximately twenty to twenty-four miles per hour in a posted forty miles per hour zone. After following the defendant's vehicle for approximately one mile, Officer Minor activated his overhead lights in an effort to stop the vehicle. When the defendant failed to respond, Officer Minor activated his siren. Again, the defendant failed to respond. Moments later the defendant turned into a commercial parking lot, driving through a ditch in the process. Officer Minor further observed that as the defendant attempted to park her vehicle, she drove through the parking space, onto the grass, and collided with a snow bank.
As he approached the defendant's vehicle and began to converse with her, Officer Minor noticed a strong odor of alcohol on her breath and observed glassy and bloodshot eyes. When the defendant responded to Officer Minor, her speech was slurred. No roadside sobriety tests were administered because the defendant had recently been injured and needed the assistance of a cane. Officer Minor formed the opinion that she was intoxicated and placed her under arrest.
Discussion. When reviewing the sufficiency of the evidence, “we ask whether, viewing the evidence in a light most favorable to the Commonwealth, ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ “ Commonwealth v. Cohen (No. 1), 456 Mass. 94, 120 (2010), quoting from Commonwealth v. Latimore, supra at 677. The essential elements of OUI under G.L. c. 90, § 24, are “(1) operation of a motor vehicle, (2) on a public way, (3) while under the influence of alcohol.” Commonwealth v. iO'Connor, 420 Mass. 630, 631 (1995). The Commonwealth need not prove that the defendant was drunk, only that alcohol diminished the defendant's ability to operate a motor vehicle safely. Commonwealth v. Stathopoulos, 401 Mass. 453, 458 (1988).
To sustain its burden of proof on negligent operation, “the Commonwealth must prove that the defendant operated a motor vehicle negligently (or recklessly) so as to endanger the lives or safety of the public upon any way or in any place to which the public has a right of access.” Commonwealth v. Ferreira, 70 Mass.App.Ct. 32, 34 (2007) (footnote and quotation omitted). “The statute only requires proof that the defendant's conduct might have endangered the safety of the public, not that it in fact did.” Id. at 35.
The defendant concedes that she was operating the vehicle on a public way, but claims the evidence on the issues of public endangerment and impairment was insufficient. We disagree. First, Officer Minor's observation of the defendant swerving from side to side and crossing over the center line several times on a two-lane road, was sufficient to establish that her operation of the vehicle may have endangered the safety of the public. Second, there was ample evidence that she was under the influence of alcohol. She failed to respond to the officer's overhead lights and siren. She pulled into a ditch and collided with a snowbank before the vehicle stopped. Her speech was slurred. Her eyes were glassy and bloodshot, and she smelled of alcohol. Simply put, this evidence, viewed in the light most favorable to the Commonwealth, was sufficient to establish beyond a reasonable doubt that the defendant negligently operated her motor vehicle while under the influence of alcohol.