Instruction 5.305, Criminal Model Jury Instructions for Use in the District Court

.08% OR GREATER

ENDANGERING A CHILD WHILE OPERATING WITH A BLOOD

ALCOHOL LEVEL OF .08% OR GREATER

(when OUI per se is also charged)

G.L. c. 90, § 24V

The defendant is also charged with endangering a child while

operating a motor vehicle while having a blood alcohol level of .08

percent or greater (and with endangering a child while operating a

motor vehicle while under the influence of alcohol).

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

Commonwealth must prove the same three elements that I have

described to you on the charge of operating a motor vehicle while

having a blood alcohol level of .08 percent or greater. It must also

prove beyond a reasonable doubt that while the defendant was

operating the vehicle, there was a child who was fourteen years of

age or younger present in the vehicle.

I instruct you that you cannot return a verdict of guilty on this

offense unless you first find the defendant guilty on the charge of

operating a motor vehicle while under the influence of alcohol.

.08% OR GREATER

If there are stipulations. Because the parties have stipulated

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

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

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

the percentage of alcohol in the defendant’s blood was .08

or greater) (that a child fourteen years of age or younger

was present in the vehicle), 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. There are four things that the Commonwealth

must prove beyond a reasonable doubt to obtain a conviction on this

charge:

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

.08% OR GREATER

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

percentage of alcohol in the defendant’s blood was .08 or greater, and

Fourth: That while the defendant was operating the vehicle,

there was a child present in the vehicle who was fourteen years of age

or younger.

If the Commonwealth has proven all four 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.