Instruction 5.220, Criminal Model Jury Instructions for Use in the District Court

OPERATING AN UNINSURED MOTOR VEHICLE

The defendant is charged with having operated an uninsured motor

vehicle.

In order to prove the defendant guilty of this offense, the

Commonwealth must prove three things beyond a reasonable doubt:

First: That the defendant (operated a motor vehicle) (permitted

someone else to operate a motor vehicle);

Second: That the operation took place (on a public highway) (on a

private way laid out by statutory authority) (on a way dedicated to public

use) (on a way under the control of park commissioners or a body with

similar powers) (in a place to which the public has a right of access); and

Third: That the vehicle being operated was not insured at the time.

See Instruction 3.200 (Operation of a Motor Vehicle).

Compulsory insurance is required only “upon the ways of the commonwealth or in any place therein

to which the public has a right of access.” G.L. c. 90, § 34A. “Way” is defined as “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.

SUPPLEMENTAL INSTRUCTION

Registry certificate of absence of record of insurance. You may consider a

properly-executed certificate from the Registry of Motor Vehicles

as evidence of whether the vehicle was insured. You are not

required to accept such evidence, but you may.

The Commonwealth has the burden of proving as an element of a prosecution under

G.L. c. 90, § 34J that the defendant’s vehicle was uninsured, and cannot utilize G.L.

c. 278, § 7 to shift this burden to the defendant. Commonwealth v. Munoz, 384

Mass. 503, 426 N.E.2d 1161 (1981).

The Commonwealth will normally do this with a certificate from the Registry of Motor

Vehicles, which is required by G.L. c. 90, § 34I to maintain a record of all motor

vehicle insurance policies. General Laws c. 90, § 34J provides that “[i]n proceedings

under this section, written certification by the registrar of motor vehicles that the

registry of motor vehicles has no record of a motor vehicle liability policy or bond or

deposit in effect at the time of the alleged offense as required by the provisions of

this chapter for the motor vehicle alleged to have been operated in violation of this

section, shall be admissible as evidence in any court of the commonwealth and shall

raise a rebuttable presumption that no such motor vehicle liability policy or bond or

deposit was in effect for said vehicle at the time of the alleged offense. Such

presumption may be rebutted and overcome by evidence that a motor vehicle liability

policy or bond or deposit was in effect for such vehicle at the time of the alleged

offense.”

However, it is constitutionally impermissible to shift the burden of proof on any

element of an offense by means of a rebuttable presumption, Francis v. Franklin, 471

U.S. 307, 105 S.Ct. 1965 (1985); Commonwealth v. Claudio, 26 Mass. App. Ct. 218,

219-221, 525 N.E.2d 449, 450-451 (1988); Commonwealth v. Crawford, 18 Mass.

App. Ct. 911, 912, 463 N.E.2d 1193, 1194 (1984), and therefore the model

instruction accords only prima facie effect to such a certificate. See the notes to

Instructions 3.240 (Presumption) and 3.260 (Prima Facie Evidence).

Since registration of motor vehicles is presently staggered at two-year intervals in

Massachusetts, while compulsory insurance policies are in effect only for one year

unless sooner canceled, the judge should carefully examine the contents of any

certificate from Registry records before admitting it in evidence.

In cases where the authenticity of such a certificate is not disputed, jury confusion

may be avoided by soliciting such a stipulation from the parties.