On May 24, the appeals court ruled in COMMONWEALTH vs. LISA VIRGILIO 79 Mass. App. Ct. 570 (2011) that a party arrested in her driveway for OUI was not on a “way” as required by statute to satisfy the arrest. The critical point, however is what separates it from Commonwealth v. Belliveau, 76 Mass. App. Ct. 830 (2010). Justice Sikora, writes a very good dissent in the case that I recommend as well.
The court in ruling stated “At the trial of a criminal complaint charging operating a motor vehicle under the influence of intoxicating liquor, in violation of G. L. c. 90, § 24(1)(a)(1), there was insufficient evidence to sustain the defendant’s conviction, where the circumstances of the place in question, i.e., a private driveway and parking area that served only two residences containing three dwelling units in total, that neither contained nor led to any business or public accommodation, and that did not give an impression to the general public or members thereof that it was anything other than a private driveway or that public use was invited (notwithstanding that it was neither gated nor posted), foreclosed consideration of it as a matter of law as a way or place to which the public had access as invitees or licensees. SIKORA, J., dissenting.
Discussion. We examine the evidence introduced at trial in the light most favorable to the Commonwealth and ask whether the evidence was sufficient to warrant a rational trier of fact in concluding beyond a reasonable doubt, Commonwealth v. Latimore, 378 Mass. 671 , 676-678 (1979), that the location at which the defendant was found to have been operating her motor vehicle on the evening in question is a “way or . . . place to which members of the public have access as invitees or licensees.” G. L. c. 90, § 24(1)(a)(1), as appearing in St. 1994, c. 25, § 3. In our view, the record evidence is not sufficient to sustain the denial of the defendant’s motion for a required finding of not guilty.
Prior to its amendment by St. 1961, c. 347, G. L. c. 90, § 24(1)(a)(1), applied only to operation of a motor vehicle “upon any way or in any place to which the public has a right of access.” Commonwealth v. Smithson, 41 Mass. App. Ct. 545 , 552 (1996). “The original version of the statute was ‘passed for the protection of travelers upon highways,’ and ‘was not intended to make criminal the use of a motor vehicle [while intoxicated] in all places within the Commonwealth.’ ” Ibid., quoting from Commonwealth v. Clarke, 254 Mass. 566 , 568 (1926), and Commonwealth v. Clancy, 261 Mass. 345 , 348 (1927). In Commonwealth v. Paccia, 338 Mass. 4 , 6 (1958), the Supreme Judicial Court construed that language to encompass only public ways or ways in which the general public held an easement, and not private ways used by the public merely as licensees or business invitees. In so holding the court said that “[i]f the Legislature had wished to include areas like [the road at issue], to which members of the public have access only as business invitees or licensees, within the penal prohibitions of § 24, it would have been appropriate for it to have made a clear and specific provision to this effect.” Id. at 6. In response, the Legislature amended the statute to add: “any place to which members of the public have access as invitees or licensees.” See St. 1961, c. 347; Commonwealth v. Callahan, 405 Mass. 200 , 203 (1989). This additional language has been the subject of several subsequent opinions. See, e.g., Commonwealth v. George, 406 Mass. 635 , 639 (1990); Commonwealth v. Hart, 26 Mass. App. Ct. 235 , 237-238 (1988); Commonwealth v. Muise, 28 Mass. App. Ct. 964 , 965 (1990); Commonwealth v. Smithson, 41 Mass. App. Ct. at 549; Commonwealth v. Brown, 51 Mass. App. Ct. 702 , 712-713 (2001); Commonwealth v. Kiss, 59 Mass. App. Ct. 247 , 250 (2003); Commonwealth v. Stoddard, 74 Mass. App. Ct. 179 , 181-183 (2009); Commonwealth v. Belliveau, 76 Mass. App. Ct. 830 , 832 (2010); Commonwealth v. Cabral, 77 Mass. App. Ct. 909 , 910 (2010).
In assessing whether a particular private way falls within the statute, “[i]t is the status of the way, not the status of the driver, which the statute defines . . . i.e., it is sufficient if the physical circumstances of the way are such that members of the public may reasonably conclude that it is open for travel to invitees or licensees.” Commonwealth v. Hart, 26 Mass. App. Ct. at 237-238. Accordingly, an individual may be held in violation of the statute even if his presence on the way is without benefit of a specific license or invitation. See ibid; Commonwealth v. Brown, 51 Mass. App. Ct. at 712-713. Whether a particular way is accessible to the public as invitees or licensees, within the meaning of the statute, is a legal conclusion which we consider independently. See Commonwealth v. Smithson, supra at 549; Commonwealth v. Brown, supra at 709-710.
“If the invitation or license is one that extends (or appears, from the character of the way, to extend) to the general public, the way is covered; if instead the license or invitation is privately extended to a limited class, the way is not covered.” Stoddard, supra at 182-183. “Moreover, it is the objective appearance of the way that is determinative of its status, rather than the subjective intent of the property owner.” Smithson, supra at 549. Some of the typical physical circumstances that may bear on the question whether a way is accessible to the public within the meaning of the statute are the presence of street lights, hydrants, curbing, and paving. We recognize, however, that the absence of these elements is not dispositive, as some public roadways in many rural communities lack lighting, curbing, and hydrants. See, e.g., Muise, supra (paved private road without curbing furnishing access to trailer park was covered by statute); Smithson, supra (unpaved way furnishing access to business not covered by statute during weekend when business not open, but strongly implying it would be covered during business operating hours); Kiss, supra (shopping center parking lot covered by statute where presence of pay phones, automatic teller machine, and newspaper distribution boxes “created the reasonable expectation among members of the public that they were welcome to operate their vehicles in the parking lot in order to access those services that were uniquely available when the shops were closed”).
Here, the place in question is a private driveway and parking area that only serves two residences, containing three dwelling units in total. It neither contains nor leads to any businesses or public accommodations. There is nothing in the appearance of the driveway or parking area that would give an impression to the general public or members thereof that it is anything other than a private driveway or that public use was invited, notwithstanding that it is neither gated nor posted. In our view, these circumstances foreclose its consideration, as matter of law, as a way or place to which the public has access as invitees or licensees.
Despite the ways and places to which subsequent case law has extended the statute’s reach, it has yet to extend it to all places that an operator may have physical access. See Commonwealth v. George, 406 Mass. at 639-640 (1990). In no case brought to our attention has mere physical accessibility by one operating a motor vehicle and who is not a trespasser been deemed minimally sufficient, as matter of law, to qualify as a “way or place to which members of the public have access as invitees or licensees.” G. L. c. 90, § 24(1)(a)(1). See Smithson, supra (where the court found that the characteristics of the road on a holiday weekend were not such that members of the public could reasonably infer they had an invitation to travel despite the fact the public had physical access to the road). Here, in our view, the facts beyond its physical accessibility by nontrespassers, namely, that the driveway and parking area were shared by and accessible to the occupants and guests of two residential buildings, are not sufficient to bring these places under the statute’s reach. To decide otherwise would be to essentially overrule the requirement that, in cases such as this, members of the public must be able to reasonably conclude, from the physical circumstances of the way, that it is open for travel to invitees or licensees. Doing so would read the word “public” out of the statute or treat as superfluous this word of limitation included by the Legislature, or add words to a statute beyond those the Legislature has chosen to include. See Boone v. Commerce Ins. Co., 451 Mass. 192 , 197, 199 (2008). We are mindful of the reasons expressed by our colleague in dissent, and as he expressed in a recent concurring opinion in Commonwealth v. Belliveau, 76 Mass. App. Ct. at 836; however, for the foregoing reasons, based upon the uncontested facts of this record and applying the case law that has developed concerning this element of the offense since the governing statute was last amended, members of the public cannot conclude, as matter of law, that this driveway is open to them for travel as invitees or licensees. See Commonwealth v. Smithson, 41 Mass. App. Ct. at 549; contrast Commonwealth v. Kiss, 59 Mass. App. Ct. at 250. The defendant’s motion for a required finding of not guilty should have been allowed.
For the foregoing reasons, the judgment is reversed, the verdict is set aside, and judgment shall enter for the defendant.
Attorney Ronald A. Sellon