Opinion
11-P-285
02-10-2012
COMMONWEALTH v. AMANDA L. MINARDI.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted by a jury in the District Court of operating under the influence, G. L. c. 90, § 24(1)(a)(1), leaving the scene of property damage, G. L. c. 90, § 24(2)(a), and negligent operation of a motor vehicle, G. L. c. 90, § 24 (2)(a). We refer to the facts that the jury could have found as they are pertinent to our discussion of the issues.
Discussion. Knowingly leaving the scene of property damage. General Laws c. 90, § 24(2)(a), creates a criminal offense for someone who 'goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property. . . .' The defendant's claim on appeal is that a voluntary intoxication instruction was required so that the jury could properly consider whether she had the requisite specific-intent mental state of 'knowingly' leaving the scene of property damage. The Commonwealth argues that the instruction would have undermined, if not eradicated, the defense theory that no alcohol was consumed and that the defendant suffered a 'blackout.'
'When proof of knowledge is an element of the crime charged, the defendant's intoxication 'bears on the defendant's ability to possess the requisite knowledge of the circumstances in which he acted." Commonwealth v. Lawson, 46 Mass. App. Ct. 627, 630 (1999), quoting from Commonwealth v. Sama, 411 Mass. 293, 298 (1991). Where, as here, there has been no request for an intoxication instruction, the question is 'whether there was enough evidence of intoxication to require the judge, sua sponte, to instruct the jury on the effect of voluntary intoxication and whether the failure to instruct on voluntary intoxication resulted in a substantial likelihood of a miscarriage of justice.' Commonwealth v. Fano, 400 Mass. 296, 306 (1987).
The defendant testified that she 'blacked out' after ingesting a combination of 'five or six' types of prescription drugs along with two drinks of vodka. She also claimed that she had not been provided with any warnings not to drive or not to mix the prescribed medications with alcohol. The defense theory was that the defendant was not intoxicated, but rather suffered a precipitous seizure or 'blackout' from the ingestion of drugs she had been prescribed. Trial counsel's failure to request a voluntary intoxication instruction was entirely consistent with this defense. Given the evidence of, inter alia, alcohol consumption, odor of alcohol in the car, and failed field sobriety tests, had an instruction been requested, it would have been warranted. See Lawson, supra at 630. However, under these circumstances the judge was not required to provide an instruction that was neither requested nor consistent with the theory of defense.
The Commonwealth was not, of course, excused from proving each element of the crime. The judge properly instructed the jury on the elements of the charge, including a supplemental instruction on knowledge requested by defense counsel. However, the fact finder could reasonably infer from the evidence that the defendant was aware of the property damage she had caused by the manner in which she continued to operate her vehicle thereafter.
Intoxication/negligence. The defendant also argues that the evidence, when viewed in the light most favorable to the Commonwealth, was not sufficient to support a conviction for operating under the influence and negligent operation of a motor vehicle. The elements of operating under the influence are (1) operation of a vehicle, (2) on a public way, (3) under the influence of alcohol. G. L. c. 90, § 24. A defendant operates a vehicle negligently when she (1) operates a motor vehicle, (2) upon a public way, (3) negligently so that the lives of the public might be endangered. G. L. c. 90, § 24(2)(a).
The evidence against the defendant was that she was driving her car erratically, when she was pulled over the police officer smelled alcohol inside the car, she acknowledged having two alcoholic beverages, she was on several medications, a half-full bottle of vodka was found in the car, and she failed field sobriety tests. Further, the arresting officer also testified that the street on which he found the defendant's car upended on a curb was a public way. While the defendant did present evidence of previous seizures, blackouts, and her regimen of medication, taken in the light most favorable to the Commonwealth the evidence was certainly sufficient for the jury to infer that the defendant was guilty of operating under the influence and negligent operation. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
The defendant also argues that she could not be found criminally liable because she was on several medications and was not warned about the side effects of mixing them with alcohol. This court has ruled that when there is evidence of intoxication from a combination of liquor and prescription drugs 'it is immaterial whether the driver is under the influence of intoxicating liquor and other substances. . . . [In] order to find guilt, the jury need only to find that the liquor contributed to the defendant's impairment.' Commonwealth v. Bishop, 78 Mass. App. Ct. 70, 75 (2010), quoting from State v. West, 416 A.2d 5, 9 (Me. 1980). Further, the effects of mixing alcohol with drugs 'are well known to everybody.' Id. at 74, quoting from Commonwealth v. Taylor, 263 Mass. 356, 362 (1928).
Judgments affirmed.
By the Court (Katzmann, Smith & Grainger, JJ.),