Instruction 5.300, Criminal Model Jury Instructions for Use in the District Court

OF .08% OR GREATER

OPERATING WITH A BLOOD ALCOHOL LEVEL OF .08% OR GREATER

The defendant is charged with operating a motor vehicle while having

a blood alcohol level of .08 percent or greater (and with operating a motor

vehicle while under the influence of alcohol).

In order to prove the defendant guilty of operating a motor vehicle

while having a blood alcohol level of .08 percent or greater, the

Commonwealth must prove three 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); and

Third: That at the time of operation, the percent of alcohol in the

defendant’s blood was .08 or greater.

At this point, the jury m ust be instructed on the definitions of “Operation of a Motor Vehicle”

(Instruction 3.200), “Public W ay” (Instruction 3.280), and percentage of alcohol in the defendant’s

blood (which follows), unless these are stipulated. See instruction below regarding stipulations.

The third element that the Commonwealth must prove beyond a

reasonable doubt is that at the time of operation the percent of alcohol in

the defendant’s (breath) (blood) was .08 or greater. The law allows a

OF .08% OR GREATER

defendant’s blood alcohol level to be shown by a chemical test or analysis

of (his) (her) 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;

• whether the person who gave the test was properly certified,

and your assessment of (his) (her) credibility;

• the pre-test procedures that were employed;

• whether the testing device was in good working order

at the time the test was administered;

• whether the test was administered properly;

• and any other evidence pertaining to the

administration of the test.

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

Supplemental Instruction 1.

If any elements are stipulated. Because the parties have stipulated

(that the defendant was operating a motor vehicle) (and) (that

OF .08% OR GREATER

the location was a public way) (that the location was one to

which the public had a right of access) (and) (that the percent of

alcohol in the defendant’s blood was .08 or greater), the only

element(s) the Commonwealth must prove beyond a reasonable

doubt (is) (are) that the defendant (elements). If the

Commonwealth has proved (that) (those) element(s) beyond a

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

not, you must find the defendant not guilty.

If there are no stipulations. So there are three things that the Commonwealth

must prove 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); and

Third: That at the time (he) (she) operated the vehicle, the percent of

alcohol in the defendant’s blood was .08 or greater.

OF .08% OR GREATER

If the Commonwealth has proven all three elements beyond a

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

Commonwealth has failed to prove one or more of these elements beyond

a reasonable doubt, you must return a verdict of not guilty.

SUPPLEMENTAL INSTRUCTIONS

1. If there is an issue regarding any delay in testing. A passage of up to

three hours between testing and the time of operation may be

reasonable, however the facts and circumstances of the case

may suggest that a greater or lesser time period might apply.

Ultimately it is up to you to decide what is reasonable.

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 regulation, the result of the defendant’s test is the lower

reading. You may consider the additional sample(s) only on the

issue of whether the test result was accurate.

OF .08% OR GREATER

The Com m onwealth m ay not introduce m ore than one test result.

Commonwealth v. Steele, 455 Mass. 209, 213-14 (2009); see 501 C.M.R.

§ 2.15(2)(b).