Heard: April 2, 2019.
Vehicle, Operating to endanger. Alcoholic Liquors, Motor
vehicle. Practice, Criminal, Required finding.
received and sworn to in the Brockton Division of the
District Court Department on August 21, 2017. The case was
tried before Michael A. Vitali, J.
C. Howard for the defendant.
F. Soto, Assistant District Attorney, for the Commonwealth.
Present: Rubin, Henry, & Wendlandt, JJ.
facts in this case differ from those in many of our cases
concerning convictions of negligent operation of a motor
vehicle under G. L. c. 90, § 24 (2) (a.), because here
the defendant's car did not drift, weave, or swerve; the
defendant did not drive at an excessive speed, and there was
no accident. However, the defendant, after having consumed
alcohol, was driving well below the posted speed limit while
holding a cell phone approximately one foot from his face,
and while showing some signs of intoxication when stopped by
a State trooper. These facts are sufficient to prove that the
defendant operated his vehicle negligently "so that the
lives or safety of the public might be endangered." G.
L. c. 90, § 24 (2) (a.). We affirm.
August 19, 2017, State Trooper Gregory Furtado observed the
defendant driving between five and ten miles per hour in an
area with a posted speed limit of thirty miles per hour. The
defendant was manipulating a cell phone one foot away from
his face and appeared to be reading something on the screen.
Trooper Furtado "ran the license plate" and learned
"there was no inspection results on the vehicle."
Trooper Furtado followed the defendant for approximately one
block. During this time, the defendant turned left onto a
residential street. Trooper Furtado then activated his
emergency lights to initiate a motor vehicle stop. The
defendant immediately reduced his speed and safely brought
his car to a complete stop. In the time the trooper observed
the defendant operating a motor vehicle, the defendant did
not weave, drift, or swerve; he did not strike any curb or
another vehicle. There was nothing out of the ordinary in how
the defendant made the left turn.
approaching the car, Trooper Furtado observed the
defendant's cell phone on the defendant's lap with
the "GPS"function open. The defendant explained
that he was using the cell phone's GPS to find his
friend's house. Trooper Furtado detected the smell of
alcohol coming from inside the car and noted that the
defendant's eyes were bloodshot and his speech was
slurred. After requesting the defendant's license and
registration, Trooper Furtado observed the defendant fumble
with his wallet and pass over his license several times.
defendant admitted to having consumed two beers that evening
and agreed to perform field sobriety tests. When exiting the
vehicle, defendant was unbalanced and swayed back and forth.
When performing the one-leg stand, the defendant did not keep
his foot six inches above the ground as instructed and placed
his foot on the ground after eight and then eleven seconds,
rather than after thirty seconds as instructed. On the
nine-step walk and turn, the defendant had difficulty
following instructions, did not touch his heel to his toe on
some steps, stepped on his own toes, and took ten steps
instead of nine.
defendant was tried by a jury on a complaint charging him
with (1) operating a motor 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. The jury
acquitted the defendant of OUI and convicted him of negligent
operation.On appeal the defendant challenges the
sufficiency of the evidence supporting that conviction.