1 crash = 2 counts of operating to endanger

On March 15, 2010 the Appeals court decided that because there were two victims in the vehicle crash, that the defendant could be convicted of two counts of operating to endanger in COMMONWEALTH vs. KELLY J. FLANAGAN, 76 Mass. App. Ct. 456.

In deciding the case the court stated “The defendant was convicted of two counts of causing serious bodily injury while operating a motor vehicle negligently and while under the influence of an intoxicating substance, G. L. c. 90, § 24L(1); and one count of reckless operation of a motor vehicle, G. L. c. 90, § 24(2)(a). [Note 1] She argues that (1) her conviction for two violations of G. L. c. 90, § 24L(1), based upon injury to two different victims, violates her rights under the double jeopardy clause of the Fifth Amendment to the United States Constitution; (2) the reckless operation charge was a lesser included offense of the G. L. c. 90, § 24L(1), charges, resulting in duplicative convictions.

The defendant makes two, unsuccessful, double jeopardy arguments: first, she maintains that although there were two people injured, she cannot be convicted of two separate violations of G. L. c. 90, § 24L(1), causing serious bodily injury while operating negligently and under the influence of alcohol, [Note 5] because there was only one accident. She argues that the gravamen of the offense is causing an accident while under the influence of intoxicants; the serious bodily injury element is an aggravating factor only. Thus, she concludes, receiving two separate convictions, and two sentences, punishes her twice for committing the same offense. [Note 6] Her second claim is that her conviction for reckless operation of a motor vehicle under G. L. c. 90, § 24(2)(a), [Note 7] is an impermissible lesser included offense of the § 24L(1) charges.

“The double jeopardy clause of the Fifth Amendment to the United States Constitution protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.” Commonwealth v. Crawford, 430 Mass. 683 , 686 (2000), quoting from Mahoney v. Commonwealth, 415 Mass. 278 , 283 (1993). In this case, like the court in Commonwealth v. Crawford, we “are concerned with the third category of protection, which requires us to determine whether the Legislature intended to authorize imposition of multiple punishments for concurrent violations of the same statute arising out of a single transaction.” Commonwealth v. Crawford, supra.

(1) G. L. c. 90, § 24L(1). Massachusetts cases interpreting various provisions of chapter 90 draw a distinction between those statutes addressed, on the one hand, to an action such as the operation of the vehicle or leaving the scene of an accident without making one’s self known, and, on the other hand, to those primarily addressed to the resulting harm. Thus, in a prosecution for leaving the scene of an accident after causing injuries resulting in death, G. L. c. 90, § 24(2)(a 1/2 )(2), the Supreme Judicial Court in Commonwealth v. Constantino, 443 Mass. 521 , 524 (2005), held “that the proper ‘unit of prosecution’ under the statute is the act of leaving the scene of the accident, not the number of accident victims. . . . [T]he proscribed act is scene related, not victim related.”

In Constantino, the court also held that for the crime of operating to endanger under G. L. c. 90, § 24(2)(a), “the proper unit of prosecution is the single act of operating a vehicle so as to endanger, not the number of victims of any ensuing accident. . . . As it is the conduct of operating a vehicle in a negligent manner so as to endanger the public that is proscribed, not the act of harming another, the defendant can be convicted only once.” Id. at 527 (emphasis supplied). Significantly, the court noted that “a person may operate a vehicle in such a way that would endanger the public although no other person is on the street.” Id. at 526-527.

In contrast, this court concluded in a motor vehicle homicide case, Commonwealth v. Meehan, 14 Mass. App. Ct. 1028 , 1029 (1981), that “the Legislature intended that each death caused in one accident in violation of [G. L. c. 90,] § 24G[,] could be prosecuted and punished thereunder as a separate offense.” The language of the statute at issue, § 24L(1), closely tracks the language of § 24G, the motor vehicle homicide statute, substituting the words “serious bodily injury” for the words “causing the death of another person.” The defendant argues that the use of the words “another person” distinguishes § 24G from § 24L(1), and she finds some support in the language of Commonwealth v. Meehan, which states that the “deliberate use of [the] words [‘another person’] signifies a legislative determination that the gravamen of the offense is the killing of a human being as distinguished from unlawful operation of a motor vehicle.” Ibid. (internal citation omitted). Nevertheless, we are more persuaded that the gravamen of § 24L(1) is the injury caused to the person.

The language of the two statutes, § 24G and § 24L(1), is essentially the same. Moreover, as the Commonwealth points out, § 24L(1) was enacted in 1986, well after this court’s 1982 Meehan decision. We presume that when the Legislature enacts a statute “it is ‘aware of the prior state of the law as explicated by the decisions of [the] court,’ Commonwealth v. Callahan, 440 Mass. 436 , 441 (2003), and where it has reenacted statutory language without material change, they are ‘presumed to have adopted the judicial construction put upon it.’ Nichols v. Vaughan , 217 Mass. 548 , 551 (1914).” Commonwealth v. Colturi, 448 Mass. 809 , 812 (2007). When the Legislature tracked the language of § 24G in enacting § 24L(1), we reasonably infer it intended to adopt the judicial construction of the Meehan court that the appropriate unit of prosecution was the number of victims seriously injured by a defendant’s negligent and intoxicated driving.
The language of § 24L(1) itself supports that view: “Whoever . . . operates a motor vehicle . . . while under the influence of intoxicating liquor . . . and so operates a motor vehicle recklessly or negligently so that the lives or safety of the public might be endangered, and by any such operation so described causes serious bodily injury . . . .” G. L. c. 90, § 24L(1) (emphasis supplied). Each of the three verbs in § 24L(1) describing the proscribed conduct is separated by “and,” making each clause, including “causes serious bodily injury,” an equal element of the crime described. Thus, the unit of prosecution is the injury caused to a victim by the defendant’s impaired and negligent driving.


The defendant tried to argue that although two victims were injured, she should only be charged once as it was one transaction that produced two victims. By doing that they would have us accept that it is the act, not the number of victims produced that should guide the number of charges they face.

Attorney Ronald A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to RSellon@PoliceLegalPromotions.com
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