Instruction 5.140, Criminal Model Jury Instructions for Use in the District Court

MOTOR VEHICLE HOMICIDE

(FELONY – OUI LIQUOR and RECKLESSNESS)

G.L. c. 90, § 24G(a)

The defendant is charged with motor vehicle homicide. To

prove the defendant guilty of this offense, the Commonwealth must

prove five things beyond a reasonable doubt:

First: That the defendant operated a motor vehicle;

Second: That the defendant did so (on a public way) (or) (in a place

where the public has a right of access) (or) (in a place where

members of the public have access as invitees or

licensees);

Third: That while operating a motor vehicle, the defendant was

under the influence of intoxicating liquor;

Fourth: That while operating a motor vehicle, the defendant did so

recklessly so that the lives or safety of the public might be

endangered; and

Fifth: That the defendant’s act(s) caused the death of another

person.

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the defendant was operating a motor

vehicle. A person “operates” a motor vehicle while doing all of the

well-known things that drivers do as they travel on a street or

highway, and also when doing any act which directly tends to set the

vehicle in motion. A person is “operating” a motor vehicle whenever

they are in the vehicle and intentionally manipulate some mechanical

or electrical part of the vehicle — like the gear shift or the ignition —

which, alone or in sequence, will set the vehicle in motion.

Additional instructions on “operation” may be found in Instruction 3.200 (Revised January

2013). Additional instruction on what constitutes a “motor vehicle” may be found in

Instruction 3.210 (Revised May 2017).

To prove the second element, the Commonwealth must prove

beyond a reasonable doubt that the defendant operated a motor

vehicle on a public way. Any street or highway that is open to the

public and is controlled and maintained by some level of government

is a “public way.” This would include, for example, interstate and

state highways as well as municipal streets and roads. In determining

whether any particular street or road is a public way, you may

consider evidence, if any, about whether it has some of the usual

indications of a public way — for example, whether it is paved,

whether it has streetlights, street signs, curbing and fire hydrants,

whether there are buildings along the street, whether it has any

crossroads intersecting it, and whether it is publicly maintained.

Public way is an element of the vehicular homicide statute. See Commonwealth v.

Angelo Todesca Corp., 446 Mass. 128, 142-143 (2006). Additional instructions on

“public way”, including language related to a public “right of access” or access as

“invitees or licensees”, may be found in Instruction 3.280 (Revised 2009).

To prove the third element, the Commonwealth must prove

beyond a reasonable doubt that the defendant was under the

influence of intoxicating liquor, that is, alcohol, while operating a

motor vehicle. What does it mean to be “under the influence” of

alcohol? It is not illegal to drive after consuming alcohol as long as

the operator is not under the influence of alcohol. However, neither

does someone have to be drunk to be under the influence of alcohol.

A person is under the influence of alcohol if they have consumed

enough alcohol to reduce their ability to operate a motor vehicle

safely, by decreasing their judgment, alertness, and ability to respond

promptly and effectively to unexpected emergencies. It means that a

person has consumed enough alcohol to reduce their mental clarity,

self-control and reflexes, and thereby left them with a reduced ability

to drive safely. The amount of alcohol necessary to do this may vary

from person to person. You may rely on your own experience and

common sense about the effects of alcohol. You should consider any

believable evidence about the defendant’s alleged consumption of

alcohol, as well as the defendant’s appearance, condition, and

behavior.

See Commonwealth v. Tynes, 400 Mass. 369, 374-375 (1987); Commonwealth v.

Connolly, 394 Mass. 169, 173 (1985); Commonwealth v. Lyseth, 250 Mass. 555, 558

(1925).

It is correct to charge that a person need not be drunk to be under the influence of liquor,

but it is error to instruct that the defendant need only be “influenced in some perceptible

degree” by liquor, Connolly, supra, since “a conviction may rest only on proof that alcohol

affected him in a particular way, i.e., by diminishing his capacity to drive safely”

(emphasis in original). Tynes, supra. “[T]he Commonwealth must prove beyond a

reasonable doubt that the defendant’s consumption of alcohol diminished the defendant’s

ability to operate a motor vehicle safely. Connolly, supra. The model instruction

appropriately uses the phrase “mental clarity, self-control, and reflexes” as examples or

factors that the jury may use in determining whether the defendant’s capacity to operate

safely was impaired. See Commonwealth v. Riley, 48 Mass. App. Ct. 463, 465 (2000).

The Commonwealth must prove such impairment beyond a reasonable doubt, but is not

required to prove any of those particular three factors. Id.

To prove the fourth element, the Commonwealth must prove

beyond a reasonable doubt that the defendant drove recklessly in a

manner that might have endangered the lives or safety of other

people. A person drives recklessly when they ignore the fact that

their manner of driving is very likely to result in death or serious

injury to someone, or they are indifferent to whether someone may be

killed or seriously injured.

It is not enough for the Commonwealth to prove that the

defendant acted negligently — that is, acted in a way that a

reasonably careful person would not. Rather, it must be shown that

the defendant’s actions went beyond negligence and amounted to

recklessness. The defendant was reckless if they knew, or should

have known, that such actions would pose a grave danger of death or

serious injury to others, but they chose, nevertheless, to run the risk

and drive in the manner that they did.

In determining whether the defendant drove recklessly in a

manner that might have endangered the lives or safety of other

people, you should take into account evidence, if any, about: the

defendant’s rate of speed and manner of operation; the defendant’s

physical condition and how well they could see and control their

vehicle; the condition of the defendant’s vehicle; the kind of a road it

was and who else was on the road; the time of day, the weather, and

the road conditions; what any other vehicles or pedestrians were

doing; and any other factors that you think are relevant.

The defendant must have intended their acts, in the sense that

the acts were not accidental. But it is not necessary that the

defendant intended or foresaw the consequences of those acts, as

long as a reasonable person would know that the acts were so

dangerous that death or serious injury to other people would

probably result.

See Commonwealth v. Catalina, 407 Mass. 779, 789 (1990) (subjective awareness of

reckless nature of conduct unnecessary; conduct which a reasonable person in similar

circumstances would recognize as reckless suffices); Commonwealth v. Olivo, 369 Mass.

62, 67 (1975) (recklessness depends on facts of case); Commonwealth v. Horsfall, 213

Mass. 232, 235 (1913) (reckless operation can occur even on deserted street);

Commonwealth v. Welansky, 316 Mass. 383, 396-401 (1944) (definition of recklessness);

Commonwealth v. Sullivan, 29 Mass. App. Ct. 93, 96 (1990) (same); Commonwealth v.

Papadinis, 23 Mass. App. Ct. 570, 574-575 (1987), aff’d, 402 Mass. 73 (1988) (same).

To prove the fifth element, the Commonwealth must prove

beyond a reasonable doubt that the defendant’s act(s) caused the

death of another person. This requires the Commonwealth to prove

two things. First, the Commonwealth must prove beyond a

reasonable doubt that the death would not have occurred but for the

defendant’s act(s). The Commonwealth must prove that the

defendant’s conduct was necessary to bring about the death. If the

death would have occurred without the defendant’s act(s), the

defendant is not responsible for that death.

Second, the Commonwealth must also prove beyond a

reasonable doubt that a reasonable person in the defendant’s

position would have foreseen that their conduct could result in

serious injury or death to a person. The Commonwealth does not

have to establish that the defendant foresaw, or should have

foreseen, the exact manner in which the injury occurred; but the

Commonwealth must establish that the death was a natural and

probable consequence of the defendant’s act(s).

"The appropriate standard of causation to be applied in a negligent vehicular homicide case

under § 24G is that employed in tort law." Commonwealth v. Angelo Todesca Corp., 446 Mass.

128, 141 (2006), quoting Commonwealth v. Berggren, 398 Mass. 338, 340 (1986). See also

Doull v. Foster, 487 Mass. 1, 17-20 (2021).

Note: principles of comparative or contributory negligence do not apply, and are

not a defense, to the crime of motor vehicle homicide. See end note #6.

In the rare circumstance where there are multiple sufficient simultaneous causes

of death, the jury should be instructed as follows:

It may be that there are two or more events that occur at

the same time and each is sufficient to have caused a person’s

death. By way of example:

Two people were independently camping in a heavily

forested campground. Each one had a campfire, and each failed

to ensure that they put the fire out before going to bed. Due to

unusually dry forest conditions and a strong wind, both

campfires escaped their sites and began a forest fire. The two

fires, burning out of control, joined together and burned down a

hunting lodge. Either fire alone would have destroyed the lodge.

Each person’s act is a factual cause of the destruction of the

hunting lodge.

A defendant whose act was fully capable of causing a

person’s death should not be acquitted simply because of

another sufficient cause, like the second fire, operating at the

same time. The causation requirement is satisfied when there

are two or more competing causes like the twin fires, each of

which is sufficient without the other to cause the death and each

of which is in operation at the time a person’s death occurs.

In such a case, the Commonwealth does not have to prove

that the death would not have occurred but for the defendant’s

act(s). Instead, it must prove that the defendant’s conduct was

capable of causing a person’s death. In other words, if the

Commonwealth proves that – without the other cause – the

defendant’s act was necessary to bring about the death, then the

Commonwealth has met its burden of proof.

See Doull, 487 Mass. at 18 & n. 23.

If the Commonwealth has proven all five elements of this offense

beyond a reasonable doubt, you should return a verdict of guilty. If

the Commonwealth has failed to prove any one or more of the

elements beyond a reasonable doubt, you must return a verdict of

not guilty.

SUPPLEMENTAL INSTRUCTIONS

1. Evidence of an accident. The fact that an accident occurred is not

by itself evidence that the defendant was reckless. You must

examine all the evidence about how the accident happened in order

to determine whether recklessness was involved, and if so, whether

the recklessness was the defendant’s.

See Anderson v. Peter Pan Bus Lines, Inc., 56 Mass. App. Ct. 919, 921 (2002) (affirmed

instruction to jury that “[t]he mere happening of an accident is not proof of negligence.”)

2. Emergency situation. In determining whether the defendant’s

conduct was reckless, you may consider whether there was a sudden

emergency which required rapid decision. The defendant is not

guilty if the defendant acted as a reasonable person would under

similar emergency circumstances.

See Newman v. Redstone, 354 Mass. 379, 383 (1968) (“[T]he emergency condition is a

factor in determining the reasonable character of the defendant's choice of action.”) See

also Hallett v. Wrentham, 398 Mass. 550, 559 (1986).

3. If there is opinion evidence about the defendant’s sobriety (optional). You

have heard testimony of (an opinion) (opinions) about the

defendant’s sobriety. Ultimately, it is for you as the jury to determine

MOTOR VEHICLE HOMICIDE (FELONY – OUI LIQUOR and NEG)

whether the defendant was under the influence of alcohol according

to the definition I have provided. You may consider any opinion you

have heard and accept it or reject it. In the end, you and you alone

must decide whether the defendant was under the influence of

alcohol.

4. If there is evidence of field sobriety tests or roadside assessments. 1

1 If the Commonwealth intends to proceed both upon a charge of OUI-alcohol and OUI-drugs, the Court

should order that sobriety tests be referred to in both cases as roadside assessments. See

Commonwealth v. Gerhardt, 477 Mass. 775, 785 (2017).

You

have heard evidence in this case that the defendant performed (field

sobriety tests) (roadside assessments). You may accept or reject a

police officer’s testimony (opinion) about a person’s performance on

(field sobriety tests) (roadside assessments). It is for you to decide if

those (tests) (assessments) assist you in determining whether the

defendant’s ability to operate a motor vehicle safely was diminished.

You may give it such weight as you think it deserves. In evaluating

the evidence, you may consider the nature of the (tests)

(assessments), the circumstances under which they were given and

performed, and all the other evidence in this case.

5. If the Commonwealth portrays a police officer as an “expert”: A police

officer's opinion about a driver's [sobriety] [performance on (field

sobriety tests) (assessments)] like that testified to in this case is not

an expert opinion based on scientific, technical, or other specialized

knowledge but, rather, testimony based on the officer's experience,

which you may accept or reject.

See Commonwealth v. Canty, 466 Mass. 535, 543-544 (2013); Commonwealth v.

Moreno, 102 Mass. App. Ct. 321, 324-325 (2023) (use of term “sobriety test” did not

transform police sergeant’s testimony into expert opinion, even coupled with testimony

about his training and experience in OUI cases); Commonwealth v. Dow, 101 Mass. App.

Ct. 1113 (2022) (unpublished) (admission of officers’ opinions that defendant was

“intoxicated” and “clearly drunk” not error, and, while improper for Commonwealth to

suggest that officers’ training made them more qualified to assess intoxication than a

layperson, error did not create substantial risk of a miscarriage of justice).

6. Absence of breathalyzer (“Downs”) instruction only where requested by the

defendant. You are not to consider in anyway whatsoever, either for or

against either side, that there is no evidence of a breath or blood test

in this case. You may not speculate or guess about why there is no

evidence of it. Do not consider that in any way. Do not mention it

during your deliberations. Put it completely out of your mind.

Commonwealth v. Wolfe, 478 Mass. 142, 149-150 (2017) (“defendant should be able to

elect whether the jury are instructed about the absence of alcohol-test evidence”; error to

give instruction over defendant’s objection); Commonwealth v. Downs, 53 Mass. App. Ct.

195, 198 (2001). It is error to give it over the defendant’s objection. See Wolfe, supra. It

likewise should not be given even when a jury inquires about a missing breath test unless

assented to by the defendant. Id. The judge may instruct only that the jury must not

speculate about matters about which there is no evidence. Id at 150, n. 13. See also

Commonwealth v. Moreno, 102 Mass. App. Ct. 321, 327-328 (2023) (giving Downs

instruction in response to jury question about lack of breathalyzer evidence not error

where judge consulted defense counsel, who agreed to instruction, and jury affirmatively

requested explanation; better practice is to simply instruct jury not to speculate about

facts not in evidence).

7. If there is evidence the defendant was not offered field sobriety tests. There

is evidence that there were no (field sobriety tests) (roadside

assessments) in this case. This is a factor you may consider in

evaluating the evidence presented. With respect to this factor, you

should consider three questions:

First: Whether the omitted tests were standard procedure or

steps that would otherwise normally be expected under the

circumstances;

Second: Whether the omitted tests could reasonably have been

expected to lead to significant evidence of the defendant’s guilt or

innocence; and

Third: Whether the evidence provides a reasonable or adequate

explanation for the omission of the tests or other actions.

If you find that any omissions in the investigation were

significant and not adequately explained, you may consider whether

the omissions tend to affect the quality, reliability, or credibility of the

evidence presented by the Commonwealth.

All of these considerations involve factual determinations that

are entirely up to you, and you are free to give this matter whatever

weight, if any, you deem appropriate based on all the evidence.

A motorist’s refusal to perform sobriety tests when requested to do so by the police may

not be admitted in evidence, since such evidence violates the privilege against self-incrimination under art. 12 of the Massachusetts Declaration of Rights. Commonwealth v.

McGrail, 419 Mass. 774, 778-780 (1995).

This supplemental instruction is available in the different situation where the police did

not offer the defendant an opportunity to perform field sobriety tests, and the defendant

argues to the jury that this deprived the defendant of an opportunity to generate

exculpatory evidence. See Commonwealth v. Ames, 410 Mass. 603, 609 (1991). The

judge may also wish to consider leaving the matter to the parties to argue, see

Commonwealth v. Ly, 19 Mass. App. Ct. 901, 901-02 (1984), unless an instruction is

necessary to correct a suggestion that such tests are legally required. This instruction is

based upon Instruction 3.740 (Omissions in Police Investigation, Revised 2009)).

In instructing that such tests are not legally mandatory, the judge must avoid negating the

defendant’s right to build a defense on the grounds that available, probative testing was

not performed by police. See Commonwealth v. Bowden, 379 Mass. 472, 485-86 (1980).

8. If there is evidence both of alcohol and drug use. If the Commonwealth

has proved beyond a reasonable doubt that the defendant’s ability to

operate safely was reduced by alcohol, then they have violated the

law even if some other factor tended to magnify the effect of the

alcohol or contributed to their reduced ability to operate a motor

vehicle safely. Alcohol need not be the only exclusive cause. It is

not a defense that there was a second contributing cause so long as

alcohol was one of the causes of the defendant’s reduced ability to

operate safely.

Commonwealth v. Stathopoulos, 401 Mass. 453, 456-457 & n.4 (1988) (“It is enough if

the defendant's capacity to operate a motor vehicle is diminished because of alcohol,

even though other, concurrent causes contribute to that diminished capacity.”);

Commonwealth v. Bishop, 78 Mass. App. Ct. 70, 74-75 (2010).

9. If breath test result of .05 or less is in evidence. If the percentage of

alcohol by weight in the defendant’s blood was .05 percent or less,

that is evidence from which you may infer that the defendant was not

under the influence of alcohol. You are not required to reach that

conclusion. You may consider the test result along with all the other

evidence in the case to determine whether the Commonwealth has

met its burden of proving beyond a reasonable doubt that the

defendant was under the influence of alcohol.

10. If breath test result of .06 or .07 is in evidence. If the percentage of

alcohol by weight in the defendant’s blood was .06 percent or .07

percent, that is evidence which you may consider in determining

whether the defendant had consumed any alcohol. However, you

may not draw any inference from those results as to whether or not

the defendant was under the influence of alcohol. To determine that

issue, you must look to the other evidence in the case.

“In any prosecution for a violation of [G.L. c. 90, § 24(a)], evidence of the percentage, by

weight, of alcohol in the defendant’s blood at the time of the alleged offense, as shown by

chemical test or analysis of his blood or as indicated by a chemical test or analysis of his

breath, shall be admissible and deemed relevant to the determination of the question of

whether such defendant was at such time under the influence of intoxicating liquor. . . . If

such evidence is that such percentage was five one-hundredths or less, there shall be a

permissible inference that such defendant was not under the influence of intoxicating

liquor.. . . [;] if such evidence is that such percentage was more than five one-hundredths

but less than eight one-hundredths there shall be no permissible inference.” G.L. c. 90, §

24(1)(e). See Commonwealth v. Colturi, 448 Mass. 809, 817-818 (2007), as to

instructing the jury on these statutory inferences.