Heard: December 8, 2017.
received and sworn to in the Woburn Division of the District
Court Department on December 14, 2015.
case was tried before David E. Frank, J.
Kates for the defendant.
Gabriel Pell, Assistant District Attorney, for the
Present: Sacks, Ditkoff, & Singh, JJ.
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,
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.
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.
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
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