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Commonwealth v. Faherty

Appeals Court of Massachusetts, Middlesex

April 11, 2018

COMMONWEALTH
v.
KEVIN J. FAHERTY.

          Heard: December 8, 2017.

         Complaint received and sworn to in the Woburn Division of the District Court Department on December 14, 2015.

         The case was tried before David E. Frank, J.

          Tasha Kates for the defendant.

          Gabriel Pell, Assistant District Attorney, for the Commonwealth.

          Present: Sacks, Ditkoff, & Singh, JJ.

          DITKOFF, JUDGE.

         A District Court jury convicted the defendant, Kevin J. Faherty, of operating under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1) (a)(1). At a subsequent jury-waived trial, a District Court judge convicted the defendant as a fourth offender. We are faced with the question whether a subsequent offense may be based on a prior conviction for which the defendant was not entitled to (and presumably did not receive) appointed counsel because the prior offense carried no risk of incarceration. Concluding that it may be, and rejecting the defendant's challenge to the sufficiency of the evidence, we affirm.

         1. Background.

         At approximately 2:30 P_.M. on July 4, 2015, the defendant was injured while riding his motorcycle on Pond Street in Stoneham. A Massachusetts State trooper at the scene of the accident noticed a strong odor of alcohol and later discovered four unopened nip bottles of Jim Beam bourbon in the defendant's saddle bag.

         The defendant was transported to a hospital. Hospital records recorded that the defendant's serum alcohol level was 359 milligrams per deciliter. An expert from the Office of Alcohol Testing at the Massachusetts State Police Crime Laboratory testified that this was the equivalent of a blood alcohol level of between .30 percent and .32 percent.

         The defendant testified that the accident was caused by his hitting something in the road while momentarily distracted. He testified that he did not drink any alcohol prior to the accident but decided to drink six nip bottles of bourbon to dull the pain while waiting for medical assistance. The jury convicted the defendant on both a theory of impairment and a theory of having a blood alcohol level of .08 percent or higher.

         At the jury-waived trial on the subsequent offense portion of the complaint, the Commonwealth presented evidence that the defendant had received a continuance without a finding for OUI in District Court in 1989. The Commonwealth then introduced, over objection, evidence of two convictions for OUI in New Hampshire, from 1992 and 2005. The New Hampshire cases were prosecuted as first offenses, and the defendant received no incarceration but instead was fined and had his license revoked. The judge found the defendant guilty as a fourth offender.

         2. Pr ...


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