Opinion
15-P-7
01-26-2016
COMMONWEALTH v. JAMES A. SPAHIU.
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
Following a jury trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of alcohol in violation of G. L. c. 90, § 24(1)(a)(1), and negligent operation of a motor vehicle in violation of G. L. c. 90, § 24(2)(a). On appeal, he claims that the evidence was insufficient to support the determinations that he was under the influence of alcohol while driving his vehicle and that he drove his vehicle in a negligent manner so as to endanger the lives or safety of the public., We affirm.
The defendant was found not responsible on a marked lanes violation.
At trial, the defendant stipulated to the first two elements of each charge.
The defendant also claims, for the first time on appeal, that his civil rights were violated at the time of his arrest. "This issue raised for the first time on appeal, but not preserved below, is not properly presented in this appeal." Commonwealth v. Silva, 61 Mass. App. Ct. 28, 38 (2004). In any event, as that claim is not supported by appropriate citations to the record or to any legal authority, we do not consider it. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
We review the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). Here, the Commonwealth presented evidence that the defendant was driving his pickup truck along the far right edge of the road and then veered onto the double yellow lines in the center of the road several times. The defendant was stopped by a State police trooper after he almost collided with a vehicle parked on the side of the road. The defendant's eyes were watery and blood shot and he had a slight odor of alcohol on his breath. After failing several field sobriety tests, the defendant was arrested and transported to the State police barracks where he took a breathalyzer test that indicated a blood alcohol level of .13.
Those facts, taken together, were sufficient for a reasonable trier of fact to find beyond a reasonable doubt that the defendant was driving while impaired by alcohol, see Commonwealth v. Siciliano, 420 Mass. 303, 307-308 (1995) (sufficient evidence of intoxication where defendant made wide turn, crossed into opposite traffic lane, swerved, and nearly struck a traffic island); Commonwealth v. Daley, 66 Mass. App. Ct. 254, 256 (2006) (sufficient evidence of intoxication where defendant crossed fog line and two lanes of traffic, nearly collided with road sign, and straddled the breakdown lane for about 300 feet), and that he operated the vehicle in a negligent manner so as to endanger the lives or safety of the public. See Commonwealth v. Ferreira, 70 Mass. App. Ct. 32, 35 (2007) ("The statute only requires proof that the defendant's conduct might have endangered the safety of the public, not that it in fact did").
Judgments affirmed.
By the Court (Vuono, Carhart & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 26, 2016.