Instruction 5.166, Criminal Model Jury Instructions for Use in the District Court

MOTOR VEHICLE HOMICIDE

(MISDEMEANOR - > .08 BAC)

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 operating a motor vehicle, the percent of alcohol

in the defendant’s blood was .08 or greater; 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, 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 at the time of operation the percent of

alcohol in the defendant’s (breath) (blood) was .08 or greater. The

Commonwealth may prove a person’s blood alcohol level by a

chemical test or analysis of their breath or blood. In deciding whether

the Commonwealth has proved the defendant’s blood alcohol level

beyond a reasonable doubt, you may consider evidence, if any, about:

• whether the test was administered within a reasonable time of

operation of the motor vehicle;

• whether the person who administered the test was properly

certified;

• whether and how the pre-test procedures were followed and

employed;

• whether the testing device was working properly at the time the

test was administered; and

• whether the test was administered properly.

You may also consider any other evidence pertaining to the test

or the test results.

If there is a challenge whether the breath test was administered within a reasonable time, see

Supplemental Instruction 1.

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 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. If there is an issue regarding any delay in testing. A breathalyzer test

result obtained within three hours of a person’s operation of a motor

vehicle is considered reasonable unless the evidence convinces you

otherwise. Ultimately it is up to you to decide what, if any, to weight

to give the test result.

2. If the defendant is permitted to introduce additional test samples. You have

heard testimony) (A document has been introduced in evidence

reporting) that the defendant gave more than one breath sample, and

that the results were [results of each sample].

By law, the result of the defendant’s test is the lower reading.

You may consider the additional reading(s) only on the issue of

whether the lower reading was accurate. If it was not accurate, it

must be disregarded.