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Commonwealth v. Rarick

Appeals Court of Massachusetts, Berkshire

May 8, 2015

Commonwealth
v.
Keith R. Rarick

Argued: January 29, 2015.

Complaint received and sworn to in the Northern Berkshire Division of the District Court Department on January 4, 2013.

The case was tried before Rita S. Koenigs, J.

John O. Mitchell for the defendant.

Megan L. Rose, Assistant District Attorney, for the Commonwealth.

Present: Kafker, Grainger, & Agnes, JJ.

OPINION

[30 N.E.3d 117] Agnes, J.

The defendant, Keith R. Rarick, was convicted of operating a motor vehicle while under the influence of intoxicating liquor, second or subsequent offense, in violation of G. L. c. 90, § 24(1)( a )(1).[1] On appeal, the defendant contends that during the trial of the underlying offense, at the close of the Commonwealth's case, his motion for a required finding of not guilty should have been allowed because the evidence that he was

Page 350

under the influence of alcohol was not sufficient to warrant a finding by the jury that this element had been proved beyond a reasonable doubt. Because we conclude that the evidence was sufficient both at the close of the Commonwealth's case and at the close of the evidence, we affirm.

Background.

a. The Commonwealth's case.

While on patrol at approximately 3:04 a.m. in the early morning of January 1, 2013, special police Officer David Sherman of the Williamstown police department was traveling northbound on Route 7 in a marked cruiser when he passed the defendant's vehicle headed southbound in the opposite direction. Based on his mounted directional radar system, which he had calibrated earlier that day, Officer Sherman determined that the defendant's vehicle was traveling fifty-eight miles per hour [30 N.E.3d 118] in a clearly marked forty-five mile per hour speed zone.[2] Officer Sherman activated his cruiser's blue lights and pulled the vehicle over without incident in front of the Waubeeka Golf Course.

When he approached the driver's window, Officer Sherman saw two people in the front seats of the vehicle: the defendant, who was driving, and a woman in the passenger seat, who was identified as Diana Dawley, the defendant's girl friend. The officer's first observation was that he could " detect a strong odor of alcoholic beverage in the vehicle, ... [and that] the defendant [had] glassy, bloodshot eyes." Officer Sherman asked the defendant if he had been drinking anything. Initially, the defendant told the officer that " he had a few," and ...


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