Vehicle, Operating to endanger. Negligence, motor vehicle.
K. Oreste for the defendant.
Elizabeth M. Carey, Assistant District Attorney, for the
in the Barnstable Division of the District Court Department
convicted the defendant, Scott M. Zagwyn, of operating a
motor vehicle while under the influence of liquor (OUI), in
violation of G. L. c. 90, § 24 (1) (a) (1), and
negligent operation of a motor vehicle, in violation of G. L.
c. 90, § 24 (2) (a.) - The defendant appealed, and the
Appeals Court affirmed. See Commonwealth v. Zagwyn,
94 Mass.App.Ct. 1105 (2018). In his appeal, the defendant
argued that the trial judge erred in denying his motion for a
required finding of not guilty because the evidence was
insufficient to support the convictions. He also argued that
the arresting police officer's testimony on the ultimate
issue of guilt -- that the defendant was too intoxicated to
operate a motor vehicle -- was improper. In affirming the
convictions, the Appeals Court rejected the defendant's
argument that the evidence was insufficient. Additionally,
although the court agreed with the defendant that the
arresting officer's testimony was improper, the court
concluded that the testimony did not create a substantial
risk of a miscarriage of justice.
granted the defendant's application for further appellate
review. We did so principally in order to address the
negligent operation charge. For the reasons explained below,
we agree with the defendant that the evidence was
insufficient to support the conviction of that
conviction of negligent operation requires a showing that the
defendant operated the vehicle "negligently so that the
lives or safety of the public might be endangered." G.
L. c. 90, § 24 (2) (a.) . The statute "only
requires proof that the defendant's conduct [in operating
the vehicle] might have endangered the safety of the public,
not that it in fact did." Commonwealth v.
Ferreira, 70 Mass.App.Ct. 32, 35 (2007), and cases
cited. In other words, "it is the operation of the
vehicle itself that is the crime." Commonwealth v.
Constantino, 443 Mass. 521, 526 (2005). Here, the
arresting officer stopped the defendant's motor vehicle
after observing that one of the vehicle's headlights and
a rear license plate light were not working. He followed the
vehicle for approximately one to one and one-half miles
before stopping the vehicle, and during that time he did not
observe the vehicle speeding, swerving, or making any sudden
stops. When the officer initiated the stop, the defendant
moved the vehicle to a safe location. The stop itself
revealed evidence that the defendant was operating the
vehicle while under the influence of alcohol. The question
then becomes whether evidence of operating a motor vehicle
with a faulty headlight and rear license plate while under
the influence of alcohol is sufficient to prove negligent
operation, when there is no other evidence of negligent
case law on which the Commonwealth relies in support of its
position that there is sufficient evidence of negligent
operation here is inapposite. In Commonwealth v.
Daley, 66 Mass.App.Ct. 254 (2006), for example, which
involved convictions of both OUI and negligent operation,
there was evidence that the defendant "drove while
intoxicated, meandered back and forth over the fog line on
the left hand side of the road, crossed over two lanes of
traffic, straddled the breakdown lane for approximately 300
feet, and nearly struck a large road sign before swerving
back into the travel lane." Id. at 256.
fact that the defendant in the Daley case was
intoxicated may have been a factor, but there was abundant
other evidence that he operated his vehicle in a negligent
manner. Commonwealth v. Woods, 414 Mass. 343 (1993),
is likewise inapt. In that case, the defendant was convicted
of vehicular homicide by negligent operation. See
Id. at 344. In an earlier trial, a jury had acquitted
him of OUI, but evidence that he had been drinking before
driving was still relevant to the charge of negligent
operation. See Id. at 350. As in the Daley
case, however, there was other evidence of negligent
operation --specifically, that the vehicle "careened off
the road and struck a tree." Id. at 344. See,
e.g., Commonwealth v. Ross, 92 Mass.App.Ct. 377,
380-381 (2017) (evidence of intoxication combined with
evidence of excess speed at night on narrow, two-lane,
residential road, lined with trees, telephone poles, and
fences, supported conviction of negligent operation).
although evidence of an operator's intoxication is
relevant to a charge of negligent operation, a conviction of
negligent operation requires something more than just
operating a motor vehicle while under the influence of
alcohol. The two crimes are separate. In the circumstances
presented, the scant evidence of a broken headlight and a
broken license plate light, even when coupled with proof of
intoxication, is insufficient to warrant a finding that the
defendant actually operated his vehicle in such a way as to
endanger the lives or safety of the public when there is no
other evidence of negligent operation.
judgment of conviction as to negligent operation is therefore
reversed. The judgment of conviction of operating a motor
vehicle while under the influence is affirmed.
 He was also found responsible for an
equipment violation, in violation of G. L. c. 90, § 7.
In a separate, jury-waived trial on a subsequent offense
portion of the charge of operating a motor vehicle while
under the influence of liquor, the defendant was convicted of
operating a ...