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Commonwealth v. Ross

Appeals Court of Massachusetts, Middlesex

October 11, 2017

COMMONWEALTH
v.
DEJON ROSS.

          Heard: September 6, 2017.

         Complaint received and sworn to in the Natick Division of the District Court Department on May 27, 2014.

         After transfer to the Marlborough Division of the District Court Department, the case was tried before Michael L. Fabbri, J.

          Justin D. Cohen for the defendant.

          Emily Walsh, Assistant District Attorney, for the Commonwealth.

          Present: Massing, Kinder, & Ditkoff, JJ.

          DITKOFF, J.

         The defendant, Dejon Ross, appeals from his conviction of negligent operation of a motor vehicle, G. L. c. 90, § 24(2) (a.) . Concluding that evidence of the defendant's excessive speed at night on a narrow residential two-lane road lined with trees, poles, and fences, after consuming alcohol, was sufficient to show that he operated negligently so that the lives or safety of the public might have been endangered, we affirm.

         1. Background.

         On May 23, 2014, at approximately 9:50 P..M., a police officer in the town of Sherborn (town) observed the defendant driving a red sedan, southbound on Western Avenue in the town, at a high rate of speed. At the location in question, Western Avenue is a public two-lane road with narrow, unpaved shoulders and no breakdown lane. The road is lined by trees, telephone poles, and residential fences along where the incident occurred. The officer testified that the speed limit was thirty-five miles per hour. Using radar, the officer determined that the defendant was travelling at fifty miles per hour.

         The officer activated his police cruiser's lights, and the defendant promptly pulled over to the side of the road. The officer observed that the defendant was the driver and noticed two other passengers in the sedan. When the defendant lowered the driver's side window, the officer "immediately detected . . . a strong odor of an alcoholic beverage" and observed that the defendant's eyes appeared "very glossy."

          The officer asked the defendant to get out of the vehicle and then performed three field sobriety tests on him.[1] While conducting the sobriety tests, the officer observed that the defendant (1) was unsteady during all three tests; (2) repeatedly stated, "I couldn't even do this if I was sober" while standing on one leg; (3) spoke in "thick, " slurred language; and (4) emitted the smell of alcohol as he spoke. The officer testified that, in his opinion, the defendant failed to perform two sobriety tests satisfactorily, and failed to perform a third test "[a]s instructed."

         The defendant ultimately was tried by a jury on a complaint charging him with (1) operating a vehicle while under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1) (a.) (1), and (2) negligent operation of a motor vehicle.[2]The ...


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