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Commonwealth v. Teixeira

Appeals Court of Massachusetts, Plymouth

May 24, 2019

COMMONWEALTH
v.
ISMAEL D. TEIXEIRA.

          Heard: April 2, 2019.

         Motor Vehicle, Operating to endanger. Alcoholic Liquors, Motor vehicle. Practice, Criminal, Required finding.

         Complaint 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.

          Jason C. Howard for the defendant.

          Danny F. Soto, Assistant District Attorney, for the Commonwealth.

          Present: Rubin, Henry, & Wendlandt, JJ.

          HENRY, J.

         The 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.

         Background.

         On 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.

         Upon approaching the car, Trooper Furtado observed the defendant's cell phone on the defendant's lap with the "GPS"[1]function open. The defendant explained that he was using the cell phone's GPS to find his friend's house.[2] 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.

         The 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.

         The 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.[3]On appeal the defendant challenges the sufficiency of the evidence supporting that conviction.

         D ...


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