Opinion
14-P-1865
12-21-2015
COMMONWEALTH v. AISLING M. MORGAINE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Aisling M. Morgaine, was convicted of operating a motor vehicle under the influence of intoxicating liquor, G. L. c. 90 § 24(1)(a)(1), and negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a). On appeal, she contends that her conviction of operating under the influence should be reversed because the judge erred in refusing to give an instruction regarding involuntary intoxication. We affirm.
Discussion. We review the judge's decision to deny the requested instruction for an abuse of discretion or error of law. See Commonwealth v. Gomes, 470 Mass 352, 359 (2015). "The failure to give a requested jury instruction is reversible error only if the requested instruction is (1) substantially correct, (2) was not substantially covered in the charge given to the jury, and (3) concerns an important point in the trial so that the failure to give it seriously impaired the defendant's ability to effectively present a given defense" (emphasis omitted). Commonwealth v. DeGennaro, 84 Mass. App. Ct. 420, 431 (2013), quoting from Commonwealth v. Adams, 34 Mass. App. Ct. 516, 519 (1993). See Commonwealth v. Gomes, supra.
Relying on Commonwealth v. Wallace, 14 Mass. App. Ct. 358 (1982), and Commonwealth v. Darch, 54 Mass. App. Ct. 713 (2002), the defendant requested the following jury instruction. "If you find that the Defendant had involuntarily and/or unknowingly consumed or been given a drug or substance then you must find the Defendant Not Guilty." The judge did not abuse his discretion, and correctly denied the instruction for two reasons. First, the instruction was inapplicable to so much of the jury's deliberations that concerned operating with a blood alcohol level in excess of .08. Second, it was overbroad with respect to deliberations concerning operating while under the influence of intoxicating liquor.
The defendant also requested a necessity instruction, which the judge allowed.
The jury answered special questions, and convicted the defendant of a violation of the statute on both theories -- that the defendant had a blood alcohol level in excess of .08, and that she drove while under the influence of intoxicating liquor. The defendant testified to having several drinks over the course of the evening. She had a blood alcohol level of .15. There was no evidence, and the defendant does not argue, that a date-rape drug would have had any effect on her blood alcohol level. The issue of involuntary intoxication was simply inapplicable to driving with a blood alcohol level in excess of .08. The conviction stands on this basis alone.
The request also falters because it was not substantially correct even with respect to proof under the second theory of operating under the influence. See Commonwealth v. Adams, supra. The proposed instruction was too sweeping, effectively requiring the jury to find the defendant not guilty even if the jury found that she was intoxicated due to the voluntary consumption of alcohol. "A defendant may be found guilty of driving while under the influence of intoxicating liquor if the defendant's ability to operate a vehicle safely is diminished, and alcohol is one contributing cause of the diminished ability. . . . It is not necessary that alcohol be the sole or exclusive cause. It is enough if the defendant's capacity to operate a motor vehicle is diminished because of alcohol, even though other, concurrent causes contribute to that diminished capacity." Commonwealth v. Stathopoulos, 401 Mass. 453, 457 (1988). Compare Commonwealth v. Bishop, 78 Mass. App. Ct. 70, 72 (2010) (approving instruction that the defendant was entitled to an acquittal if "her intoxication was caused solely by an involuntary intoxication by prescription medication," and that "the Commonwealth must prove beyond a reasonable doubt that alcohol was one of the causes of the diminished capacity to operate a motor vehicle"). The questions of causation and impairment were for the factfinder. The judge was under no obligation to, sua sponte, correct or modify the requested instructions. See Commonwealth v. Gomes, 470 Mass. at 360.
Judgments affirmed.
By the Court (Kafker, CJ, & Milkey & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 21, 2015.