on June 1st the Appeals court in COMMONWEALTH vs. GREGORY BELLIVEAU 76 Mass.App.Ct. 830 (2010) expanded the definition of “way” as defined under G. L. c. 90, § 24(1)(a) (1)
The court in deciding stated “The jury were warranted in finding the following facts: Pier 4 is located in the Charlestown Navy yard. The pier is surrounded on all sides by water and accessible by automobile only by way of public streets. Those streets end at Terry Ring Way. As described by a police officer, “Off of Terry Ring way, there is a short paved area that cars can go down and stop about fifty yards down.” Entry to the pier is then through a swinging gate. Next to the gate was a small, somewhat washed-out sign. According to the Commonwealth witnesses, signage to the pier stated that only authorized vehicles were allowed on the pier. The pier was paved and had streetlights.
2. Public way. In order to sustain an OUI conviction, the Commonwealth must prove that the offense took place “upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees.” G. L. c. 90, § 24(1)(a) (1). “Way” is further defined by statute to include “any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.” G. L. c. 90, § 1. This element has been further interpreted by the Supreme Judicial Court to require that the “public have a right of access by motor vehicle or access as invitees or licensees by motor vehicle.” SeeCommonwealth v. George, 406 Mass. 635, 637 (1990), citing Commonwealth v. Endicott, 17 Mass. App. Ct. 1025, 1026 (1984) (Brown J., concurring).
Moreover, “it is the objective appearance of the way that is determinative of its status, rather than the subjective intent of the property owner.”Commonwealth v. Kiss, 59 Mass. App. Ct. 247, 249-250 (2003). See Commonwealth v. Smithson, 41 Mass. App. Ct. 545, 549 (1996). In making that determination, we look to see if the “physical circumstances of the way are such that members of the public may reasonably conclude that it is open for travel . . . .” Commonwealth v. Hart, 26 Mass. App. Ct. 235, 238 (1988). Commonwealth v. Kiss, 59 Mass. App. Ct. at 250. “Some of the usual indicia of accessibility to the public include paving, curbing, traffic signals, street lights, and abutting houses or businesses.” Commonwealthv. Smithson, 41 Mass. App. Ct. at 549-550. See Commonwealth v. Stoddard, 74 Mass. App. Ct. 179, 182 (2009); Commonwealth v. Colby, 23 Mass. App. Ct. 1008, 1010 (1987) (marked traffic lanes and hydrants indicia of public accessibility). Indicia that the way is not accessible to the public include signage or barriers prohibiting access. See Commonwealth v. George, 406 Mass. at 639 (barriers and sign saying, “[N]o cars beyond this point”); Commonwealth v. Stoddard, 74 Mass. App. Ct. at 183 (“presence of a gate severely restricting general access to the campground is of great significance”). Deeds are also relevant considerations. See Commonwealth v. Hazelton, 11 Mass. App. Ct. 899, 900 (1980).
The focal point of the case was whether Pier 4 was a public way. To that end, the Commonwealth introduced evidence that there is an MBTA ferry stop on the pier, photographs showing indicia of accessibility including a paved passageway and streetlamps, a deed containing a covenant for the property “to provide access and egress to the general public foot or vehicle” (emphasis supplied), testimony that “[t]here were a variety of people, kids, and other people out on the pier as there are almost every evening,” and testimony regarding the presence on the pier of the Courageous Sailing Center, “a nonprofit organization that provides sailing opportunities to the youth of Boston,” which apparently was running sailing competitions on the day thedefendant was apprehended.
In the instant case, the presence of a gate and signage are strong indicators that restrictions on public vehicular access were in place. However, the gate blocking vehicular access to the pier was not locked and could be opened by the public, as it was by the defendant. Compare Commonwealth v.Stoddard, 74 Mass. App. Ct. at 180 (gate card access required). Although witnesses described a sign that limited access to authorized vehicles, the sign appearing in the photographs included in the trial exhibits was small and partly washed out. See Commonwealth v. Hart, 26 Mass. App. Ct. at 236-238 (public way found despite presence of “a sign [a little bigger than a standard no parking sign which also adorned the pole] that read: ‘Private Property/Chomerics Employees and Authorized Persons Only’ “). Compare Commonwealth v. Smithson, 41 Mass. App. Ct. at 550-551 (no public way where a sign listing business hours was “clearly visible from the road as one approache[d] the entrance” and physical circumstances did not suggest a public way). The deed also expressly provided for vehicular access to the public. The presence of a public water shuttle dock and a sailing center open to Boston youth also suggested that some parking for the public using those facilities could reasonably be expected nearby, at least in the absence of signage to the contrary.
We need not, however, resolve this close question because it was obvious that the defendant was driving under the influence of alcohol not only on the pier, but also on the public roads leading to the pier. As established by the photographs, maps, and plans introduced in evidence, as well as supporting testimony, there was no other way to get to the pier by automobile except by the public roads connecting to the pier. The defendant was alsoobserved driving quickly, close to the entrance of the pier, thereby allowing a reasonable inference that he, and not his passenger, was driving the pickup to the pier. Also it was reasonable to infer that the defendant was intoxicated while he was driving on those public roads before he arrived at the pier. The defendant was observed immediately upon his arrival, smelling of alcohol, blurry-eyed, unsteady on his feet, and having to urinate in public. Proof of operating under the influence on a public way may “rest entirely on circumstantial evidence.” Commonwealth v.Petersen, 67 Mass. App. Ct. 49, 52 (2006) (citation omitted). See Commonwealth v. Wood, 261 Mass. 458 (1927); Commonwealth v. Colby, 23 Mass. App. Ct. at 1011. Here there was sufficient circumstantial evidence to provide the necessary proof of all three elements of the offense: the public way, the driving, and the impairment.
SIKORA, J. (concurring). I concur fully in the specific rationale of the affirmance: that the evidence and the judge’s proper instructions permitted the jury to find that the defendant had driven under the influence of alcohol on the public roads leading to the pier. That analysis freed us from the need to resolve the “close question” whether the pier constituted “any way or . . . any place to which the public has a right of access, or . . . any way or . . . any place to which members of the public have access as invitees or licensees . . . .” G. L. c. 90, § 24(1)(a)(1), as amended through St. 2003, c. 28, § 1. The “close question” results from a line of precedent restrictively construing the statutory terms “way” and “place.” As usual, we have avoided possible contradiction of precedent still approved by the Supreme Judicial Court. At the same time, I believe that the evidence of this case exposes a deficiency in the current statutory construction and the need for examination of the underlying case law.”
The Concurring opinion has very strong language (as is usually the case with Justice Sikora) that is very helpful in future “close” cases.
Attorney Ronald A. Sellon