Instruction 5.164, Criminal Model Jury Instructions for Use in the District Court

MOTOR VEHICLE HOMICIDE

(MISDEMEANOR – OUI DRUGS)

G.L. c. 90, § 24G(b)

The defendant is charged with motor vehicle homicide. To

prove the defendant guilty of this offense, the Commonwealth must

prove four 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 the defendant was operating the vehicle, the

defendant was under the influence of [marihuana] [a

narcotic drug] [a depressant] [a stimulant] [if the alleged act was

committed before April 13, 2018 - the vapors of glue] [if the alleged

act was committed on or after April 13, 2018 - the fumes of any

substance having the property of releasing toxic vapors that

are smelled or inhaled for the purposes of causing a

condition of intoxication, euphoria, excitement, exhilaration,

stupefaction, or dulled senses or nervous system]; and

Fourth: 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, of 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 [marihuana] [a narcotic drug, namely: ___________] [a

depressant, namely: ___________] [a stimulant, namely: __________]

[if the alleged act was committed before April 13, 2018 - the vapors of glue] [if the

alleged act was committed on or after April 13, 2018 - the fumes of any

substance having the property of releasing toxic vapors that are

smelled or inhaled for the purposes of causing a condition of

intoxication, euphoria, excitement, exhilaration, stupefaction, or

dulled senses or nervous system]. In determining whether the

Commonwealth has done so, you may consider all the relevant

evidence.

When the substance is alleged to be (narcotic drug) (depressant) (stimulant), and if the facts permit the

taking of judicial notice that the particular substance meets the definition of narcotic drug, depressant or

stimulant substance as provided by G.L. c. 94C, § 1:

I instruct as a matter of law that ___________ is a [narcotic drug]

[depressant] [stimulant].

If the facts do not permit the taking of judicial notice that the particular substance meets the definition of

narcotic drug, or depressant or stimulant substance as provided by G.L. c. 94C, § 1:

Section 1 of chapter 94C of our General Laws defines:

Narcotic Drug “narcotic drug” as any of the following substances,

whether produced directly or indirectly by extraction of substances of

vegetable origin, or independently by means of chemical synthesis, or

by a combination of extraction and chemical synthesis: (a) opium and

opiate, and any salt, compound, derivative, or preparation of opium or

opiate; (b) any salt, compound, isomer, derivative, or preparation

thereof which is chemically equivalent or identical with any of the

substances referred to in clause (a), but not including the

isoquinoline alkaloids of opium; (c) opium poppy and poppy straw;

(d) coca leaves and any salt, compound, derivative, or preparation of

coca leaves, and any salt, compound, isomer, derivative, or

preparation thereof which is chemically equivalent or identical with

any of those substances, but not including decocainized coca leaves

or extractions of coca leaves which do not contain cocaine or

ecgonine;

Depressant or stimulant substance “depressant or stimulant substance” as (a) a

drug which contains any quantity of barbituric acid or any of the salts

of barbituric acid; or any derivative of barbituric acid which the United

States Secretary of Health, Education, and Welfare has by regulation

designed as habit forming; or (b) a drug which contains any quantity

of amphetamine or any of its optical isomers; any salt of

amphetamine or any salt of an optical isomer of amphetamine; or any

substance which the United States Attorney General has by

regulation designated as habit forming because of its stimulant effect

on the central nervous system; or (c) lysergic acid diethylamide; or

(d) any drug except marihuana which contains any quantity of a

substance which the United States Attorney General has by

regulation designated as having a potential for abuse because of its

depressant or stimulant effect on the central nervous system or its

hallucinogenic effect.

What does it mean to be “under the influence” of [marihuana]

[narcotic drugs] [depressants] [stimulants] [if the alleged act was committed

before April 13, 2018 - the vapors of glue] [if the alleged act was committed on or

after April 13, 2018 - the fumes of any substance having the property of

releasing toxic vapors]? A person is under the influence of such a

substance if they have consumed enough of it 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. This would include anyone who has

consumed enough [marihuana] [narcotic drugs] [depressants]

[stimulant substances] [if the alleged act was committed before April 13, 2018 -

the vapors of glue] [if the alleged act was committed on or after April 13, 2018 -

the fumes of any substance having the property of releasing toxic

vapors] to reduce their mental clarity, self-control and reflexes, and

thereby left them with a reduced ability to drive safely.

You are to decide this from all the believable evidence in this

case, together with any reasonable inferences that you draw from the

evidence. You may consider evidence about the defendant’s

appearance, condition, and behavior, in order to determine whether

the defendant’s ability to drive safely was impaired.

To prove the fourth 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 four of the elements of the

offense beyond a reasonable doubt, you should return a verdict of

guilty. If the Commonwealth has failed to prove one or more of the

elements beyond a reasonable doubt, you must find the defendant

not guilty.

SUPPLEMENTAL INSTRUCTIONS

1. Roadside Assessments. You heard testimony in this case that the

defendant, at the request of a police officer, performed or attempted

to perform various roadside assessments, such as [here, outline the

nature of the evidence, e.g., walking a straight line, balancing on one foot].

These roadside assessments are not scientific tests of impairment by

[name of drug] use. A person may have difficulty performing these

tasks for many reasons unrelated to the consumption of [name of the

drug].

It is for you to decide if the defendant’s performance on these

roadside assessments indicate that their ability to operate a motor

vehicle safely was impaired by [marihuana] [narcotic drugs]

[depressants] [stimulants] [if the alleged act was committed before April 13,

2018 - the vapors of glue] [if the alleged act was committed on or after April 13,

2018 - the fumes of any substance having the property of releasing

toxic vapors]. You may consider this evidence solely as it relates to

the defendant’s balance, coordination, mental clarity, ability to retain

and follow directions, ability to perform tasks requiring divided

attention, and other skills you may find are relevant to the safe

operation of a motor vehicle.

It is for you to determine how much, if any, weight to give the

roadside assessments. In making your determination, you may

consider what the officer asked the defendant to do, the

circumstances under which they were given and performed, and all

of the other evidence in this case.

Finally, evidence of how a defendant performed in roadside

assessments, standing alone, is never enough to convict a defendant

of operating under the influence of [name of drug].

See Commonwealth v. Gerhardt, 477 Mass.775, 776, 785, and Appendix (2017).

2. If there is evidence of drugs and other substances. If the

Commonwealth has proved beyond a reasonable doubt that the

defendant’s ability to operate a motor vehicle safely was reduced by

[name of substance], then they have violated the law even if some

other factor tended to magnify the effect of the [name of substance] or

contributed to their reduced ability to operate safely. [Name of

substance] need not be the only or exclusive cause. It is not a

defense that there was a second contributing cause so long as the

[name of substance] was one of the causes of the defendant’s

diminished capacity 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).