Instruction 5.500, Criminal Model Jury Instructions for Use in the District Court

OPERATING UNDER THE INFLUENCE OF LIQUOR / .08

CAUSING SERIOUS INJURY

I. FELONY BRANCH - G. L.c. 90, § 24L(1)

The defendant is charged with causing serious bodily injury by

operating a motor vehicle [under the influence of intoxicating liquor]

[with a blood alcohol level of .08 percent or greater] and by operating

it [recklessly] [negligently so that the lives or safety of the public

might be endangered].

To prove the defendant guilty of this offense, the

Commonwealth must prove five things beyond a reasonable doubt:

First: That the defendant operated a motor vehicle;

Second: That the defendant operated it (on a 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 the vehicle, the defendant [was

under the influence of intoxicating liquor] [had a blood alcohol level

of .08 percent or greater];

Fourth:

Based on the complaint, use only one of the following, unless they are both alleged

in the alternative.

A. Reckless operation. That the defendant operated the vehicle

recklessly;

B. Negligent operation. That the defendant operated the vehicle

negligently;

and Fifth: That the defendant’s actions caused serious bodily

injury to 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 not only while doing all

of the well-known things that drivers do as they travel on a street or

highway, but also when doing any act which directly tends to set the

vehicle in motion. The law is that 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. Additional

instruction on what constitutes a “motor vehicle” may be found in Instruction 3.210.

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.

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.

To prove the third element, the Commonwealth must prove that,

when operating the vehicle, the defendant [was under the influence of

intoxicating liquor] [had a blood alcohol level of .08 percent or

greater].

Under the Influence

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, a person does not 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 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.

Percent of alcohol .08 or greater

The law allows the Commonwealth to prove a

person’s blood alcohol level by a chemical test or analysis

of the defendant’s 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 their 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.

To prove the fourth element, the Commonwealth must prove

beyond a reasonable doubt that the defendant operated the vehicle

[recklessly] [negligently].

Recklessly. A person drives recklessly when they ignore

the fact that their manner of driving is very likely to result

in death or serious injury to someone, or they are

indifferent to whether someone is killed or seriously

injured. It is not enough for the Commonwealth to prove

that the defendant acted negligently — that is, acted in a

way that a reasonably careful person would not. It must be

shown that the defendant’s actions went beyond mere

negligence and amounted to recklessness. The defendant

was reckless if they knew, or should have known, that

such actions would pose a grave danger of death or

serious injury to others, but they chose, nevertheless, to

run the risk and go ahead.

In determining whether the defendant drove

recklessly in a manner that might have endangered the

lives or safety of other people, you should take into

account evidence, if any, about: the defendant’s rate of

speed and manner of operation; the defendant’s physical

condition and how well they could see and control their

vehicle; the condition of the defendant’s vehicle; the kind

of a road it was and who else was on the road; the time of

day, the weather, and the road conditions; what any other

vehicles or pedestrians were doing; and any other factors

that you think are relevant. The defendant must have

intended their acts, in the sense that the acts were not

accidental. But it is not necessary that the defendant

intended or foresaw the consequences of those acts, as

long as a reasonable person would know that the acts were

so dangerous that death or serious injury to other people

would probably result.

Negligently. A person acts negligently when they fail to use

due care, that is, when they act in a way that a reasonable

person would not act. This can happen either by doing

something that a reasonable person would not do under

the circumstances, or by failing to do something that a

reasonable person would do. The defendant acted

negligently if they drove in a way that a reasonable person

would not have, and by doing so created an unnecessary

danger to other people, a danger that they could have

avoided by driving more carefully.

The defendant’s intent is not relevant in determining

negligence. The Commonwealth is not required to prove

that the defendant intended to act negligently. The issue

here is whether or not the defendant drove as a reasonable

person would have under the circumstances.

In determining whether the defendant drove

negligently in a manner that might have endangered the

lives or safety of other people, you should take into

account evidence, if any, about: the defendant’s rate of

speed and manner of operation; the defendant’s physical

condition and how well they could see and control their

vehicle; the condition of the defendant’s vehicle; the kind

of a road it was and who else was on the road; the time of

day, the weather, and the road conditions; what any other

vehicles or pedestrians were doing; and any other factors

that you think are relevant.

To prove the fifth element, the Commonwealth must prove

beyond a reasonable doubt that the defendant’s actions caused

serious bodily injury to another person. This requires the

Commonwealth to prove two things. First, the Commonwealth must

prove that the defendant caused the injury. Second, the

Commonwealth must prove that the injury was serious.

To prove that the defendant’s act(s) caused the injury, the

Commonwealth must prove beyond a reasonable doubt that the injury

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 injury. If the injury would have occurred

without the defendant’s act(s), the defendant is not responsible for

that injury.

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 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 injury

was a natural and probable consequence of the defendant’s act(s).

Second, the Commonwealth must prove that the injury was

serious. A bodily injury is “serious” if it had any one of the following

four characteristics: (1) it created a substantial risk of death; (2) it

involved total disability; (3) it involved the loss of any bodily function

for a substantial period of time; or (4) it involved substantial

impairment of any bodily function for a substantial period of time.

If the Commonwealth has proven each of the elements beyond a

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

Commonwealth failed to prove one or more elements beyond a

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

SUPPLEMENTAL INSTRUCTION

Possible verdicts involving lesser included offenses. There are four possible

verdicts that you may render in this case. Depending on

your evaluation of what has been proved, you will find the

defendant either guilty as charged, or not guilty of all

charges, or guilty only of one or the other of two lesser

included offenses. The first possibility is returning a

verdict of guilty of the offense as charged if you find that

the Commonwealth has proved all five elements of this

offense beyond a reasonable doubt.

The second possibility is, if the Commonwealth has

failed to prove that the defendant drove (recklessly)

(negligently so that the lives and safety of the public might

have been endangered), but has proved the other four

elements beyond a reasonable doubt — that the defendant

operated a motor vehicle (on a public way) ([substitute for public

way) [while under the influence of intoxicating liquor] [with a

blood alcohol level of .08 percent or greater], and thereby

caused another person serious bodily injury — then you

should return a verdict that the defendant is guilty of that

lesser offense, as indicated on the verdict slip.

The third possibility is that the Commonwealth has

not proved that the defendant caused serious bodily injury

to anyone but has proved beyond a reasonable doubt that

the defendant operated a motor vehicle (on a public way)

([substitute for public way]) [while under the influence of

intoxicating liquor] [with a blood alcohol level of .08

percent or greater]. In that case, you should return a

verdict that the defendant is guilty of the lesser offense of

operating a motor vehicle [under the influence of

intoxicating liquor] [with a blood alcohol level of .08

percent or greater].

Finally, if the Commonwealth has not proved all of the

following things beyond a reasonable doubt — that the

defendant operated a motor vehicle (on a public way)

([substitute for public way]) [while under the influence of

intoxicating liquor] [with a blood alcohol level of .08

percent or greater] — then you must find the defendant not

guilty.

Where both lesser included offenses are instructed on, see the appendix to this

instruction for a sample jury verdict slip.

If the Commonwealth has not separately charged the defendant with negligent or

reckless operation, the judge may also instruct the jury that these are lesser included

offenses, subject to the objections of the parties.

I. MISDEMEANOR BRANCH – G. L. c. 90, § 24L(2)

The defendant is charged with causing serious bodily injury by

operating a motor vehicle [while under the influence of intoxicating

liquor] [with a blood alcohol level of .08 percent or greater]. 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 operated it (on a 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 the vehicle, the defendant [was

under the influence of intoxicating liquor] [had a blood alcohol level

of .08 percent or greater]; and

Fourth: That the defendant’s actions caused serious bodily

injury to another person.

The judge should further instruct the jury about elements 1, 2, 3 and 5 of the

instructions above.