Instruction 5.310, Criminal Model Jury Instructions for Use in the District Court

OPERATING UNDER THE INFLUENCE OF INTOXICATING LIQUOR

G.L. c. 90, § 24

The defendant is charged with operating a motor vehicle while

under the influence of intoxicating liquor (in the same complaint that

charges the defendant with operating a motor vehicle with a blood

alcohol level of .08% or greater).

To prove the defendant guilty of this offense, the

Commonwealth must prove the following 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 while operating the vehicle, the defendant was under

the influence of intoxicating liquor.

At this point, the jury must be instructed on the definitions of “Operation of a Motor

Vehicle” (Instruction 3.200), “Public Way” (Instruction 3.280), and under the influence of

intoxicating liquor (which follows), unless the defendant has stipulated to these elements.

See instruction below regarding stipulations.

The third element which the Commonwealth must prove beyond

a reasonable doubt is that the defendant was under the influence of

intoxicating liquor while operating a motor vehicle. What does it

mean to be “under the influence” of alcohol? It is not illegal to drive

after consuming alcohol as long as the operator is not under the

influence of alcohol. However, neither does someone have to be

drunk to be under the influence of alcohol. A person is under the

influence of alcohol if they have consumed enough alcohol to reduce

their ability to operate a motor vehicle safely, by decreasing their

alertness, judgment, and ability to respond promptly and effectively to

unexpected emergencies. It means that a person has consumed

enough alcohol to reduce their mental clarity, self-control and

reflexes, and thereby left them with a reduced ability to drive safely.

The Commonwealth is not required to prove that the defendant

actually drove in an unsafe or erratic manner, but it is required to

prove that their ability to drive safely was diminished by alcohol. The

amount of alcohol necessary to do this may vary from person to

person. You may rely on your experience and common sense about

the effects of alcohol. You should consider any believable evidence

about the defendant’s alleged consumption of alcohol, as well as the

defendant’s appearance, condition, and behavior.

Limited use of breath test result of .08 or greater. You may also consider

whether a (breath) (blood) test showed that the defendant

had consumed any alcohol. However, no matter what the

reading is, the (breath) (blood) test is not sufficient by itself

to prove that the defendant was under the influence of

alcohol.

A result of .08 or greater is not admissible on the issue of impairment without “expert

testimony establishing a relationship between the rest results and intoxication as a

foundational requirement of the admissibility of such results.” Commonwealth v. Colturi,

448 Mass. 809, 818 (2007); Commonwealth v. Hubert, 71 Mass. App. Ct. 661, 663, aff’d,

453 Mass. 1109 (2009). The evidence of a breath test is admissible only on the issue of

whether the defendant consumed alcohol.

If the Commonwealth initially proceeds under both portions of the statute and the judge

subsequently allows a motion for required finding on the per-se portion of the offense, the

judge must determine whether or not to strike any breath test evidence, absent expert

testimony. See Colturi, supra (“if the per se and impaired ability theories of criminal

liability are charged in the alternative. . . and so tried, we see no prejudice in the

admission of breathalyzer test results without expert testimony. . . If, however, the

Commonwealth were to proceed only on a theory of impaired operation and offered a

breathalyzer test result of .08 or greater, . . . it must present expert testimony establishing

a relationship between the test result and intoxication as a foundational requirement of

the admissibility of such tests” since otherwise “the jury would be left to guess at its

meaning”). If the breath test results are allowed to remain in evidence, the above

insertion should be incorporated.

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) (that the defendant

was under the influence of intoxicating liquor), 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 while the defendant was operating the vehicle, they

were under the influence of intoxicating liquor.

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 opinion evidence about the defendant’s sobriety (optional). You have

heard testimony of (an opinion) (opinions) about the defendant’s

sobriety. Ultimately, it is for you as the jury to determine whether the

defendant was under the influence of alcohol according to the

definition I have provided. You may consider any opinion you have

heard and accept it or reject it. In the end, you and you alone must

decide whether the defendant was under the influence of intoxicating

liquor.

2. If there is evidence of field sobriety tests or roadside assessments.

1

You have heard

evidence in this case that the defendant performed (field sobriety

tests) (roadside assessments). You may accept or reject a police

officer’s testimony (opinion) about a person’s performance on (field

sobriety tests) (roadside assessments). It is for you to decide if those

(tests) (assessments) assist you in determining whether the

defendant’s ability to operate a motor vehicle safely was diminished.

You may give it such weight as you think it deserves. In evaluating

the evidence, you may consider the nature of the (tests)

1 If the Commonwealth intends to proceed both upon a charge of OUI-alcohol and OUI-drugs, the Court

should order that sobriety tests be referred to in both cases as roadside assessments. See

Commonwealth v. Gerhardt, 477 Mass. 775, 785 (2017).

(assessments), the circumstances under which they were given and

performed, and all the other evidence in this case.

3. If the Commonwealth portrays a police officer as an “expert”. A police officer's

opinion about a driver's [sobriety] [performance on (field sobriety

tests) (assessments)] like that testified to in this case is not an expert

opinion based on scientific, technical, or other specialized knowledge

but, rather, testimony based on the officer's experience, which you

may accept or reject.

See Commonwealth v. Canty, 466 Mass. 535, 543-544 (2013); Commonwealth v.

Moreno, 102 Mass. App. Ct. 321, 324-325 (2023) (use of term “sobriety test” did not

transform police sergeant’s testimony into expert opinion, even coupled with testimony

about his training and experience in OUI cases); Commonwealth v. Dow, 101 Mass. App.

Ct. 1113 (2022) (unpublished) (admission of officers’ opinions that defendant was

“intoxicated” and “clearly drunk” not error, and, while improper for Commonwealth to

suggest that officers’ training made them more qualified to assess intoxication than a

layperson, error did not create substantial risk of a miscarriage of justice).

4. Absence of breathalyzer (“Downs”) instruction only where requested by the defendant.

You are not to consider in anyway whatsoever, either for or against

either side, that there is no evidence of a breathalyzer. You may not

speculate or guess about it because there is no evidence of it. Do not

consider that in any way. Do not mention it. And put it completely

out of your mind.

5. If there is evidence the defendant was not offered a field sobriety test. There is

evidence that there were no (field sobriety tests) (roadside

assessments). This is a factor you may consider in evaluating the

evidence presented in this case. With respect to this factor, you

should consider three questions:

First: Whether the omitted (tests) (assessments) were standard

procedure or steps that would otherwise normally be taken under the

circumstances;

Second: Whether the omitted (tests) (assessments) could

reasonably have been expected to lead to significant evidence of the

defendant’s guilt or innocence; and

Third: Whether the evidence provides a reasonable and

adequate explanation for the omission of the (tests) (assessments) or

other actions.

If you find that any omissions in the investigation were

significant and not adequately explained, you may consider whether

the omissions tend to affect the quality, reliability, or credibility of the

evidence presented by the Commonwealth.

All of these considerations involve factual determinations that

are entirely up to you, and you are free to give this matter whatever

weight, if any, you deem appropriate based on all the circumstances.

A motorist’s refusal to perform sobriety tests when requested to do so by the police may

not be admitted in evidence, since such evidence violates the privilege against self-incrimination under art. 12 of the Massachusetts Declaration of Rights. Commonwealth

v. McGrail, 419 Mass. 774 (1995).

This supplemental instruction is available in the different situation where the police did

not offer the defendant an opportunity to perform field sobriety tests, and the defendant

argues to the jury that this deprived the defendant of an opportunity to generate

exculpatory evidence. See Commonwealth v. Ames, 410 Mass. 603, 609 (1991). The

judge may also wish to consider leaving the matter to the parties to argue, see

Commonwealth v. Ly, 19 Mass. App. Ct. 901, 901-02 (1984), unless an instruction is

necessary to correct a suggestion that such tests are legally required. This instruction is

based upon Instruction 3.740 (“Omissions in Police Investigation”).

In instructing that such tests are not legally mandatory, the judge must avoid negating the

defendant’s right to build a defense on the grounds that available, probative testing was

not performed by police. See Commonwealth v. Bowden, 379 Mass. 472, 485-86 (1980).

6. If there is evidence both of alcohol and drug use. If the Commonwealth has

proved beyond a reasonable doubt that the defendant’s ability to

operate safely was diminished by alcohol, then they have violated the

law even if some other factor tended to magnify the effect of the

alcohol or contributed to their diminished capacity to operate a

vehicle safely. Alcohol need not be the only exclusive cause. It is not

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

alcohol was one of the causes of the defendant’s diminished capacity

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).

7. If breath test result of .05 or less is in evidence. If the percentage of alcohol

by weight in the defendant’s blood was .05 percent or less, that is

evidence from which you may infer that the defendant was not under

the influence of intoxicating liquor. You are not required to reach that

conclusion. You may consider the test result along with all the other

evidence in the case to determine whether the Commonwealth has

met its burden of proving beyond a reasonable doubt that the

defendant was under the influence of intoxicating liquor.

8. If breath test result of .06 or .07 is in evidence. If the percentage of alcohol

by weight in the defendant’s blood was .06 percent or .07 percent, that

is evidence which you may consider in determining whether the

defendant had consumed any alcohol. However, you may not draw

any inference from those results as to whether or not the defendant

was under the influence of alcohol. To determine that issue, you

must look to all the evidence in the case.

“In any prosecution for a violation of [G.L. c. 90, § 24(a)], evidence of the percentage, by

weight, of alcohol in the defendant’s blood at the time of the alleged offense, as shown by

chemical test or analysis of his blood or as indicated by a chemical test or analysis of his

breath, shall be admissible and deemed relevant to the determination of the question of

whether such defendant was at such time under the influence of intoxicating liquor. . . . If

such evidence is that such percentage was five one-hundredths or less, there shall be a

permissible inference that such defendant was not under the influence of intoxicating

liquor. . . . [;] if such evidence is that such percentage was more than five one-hundredths but less than eight one-hundredths there shall be no permissible inference.”

G.L. c. 90, § 24(1)(e).

See Colturi, 448 Mass. at 817, as to instructing the jury on these statutory inferences.