Instruction 5.710, Criminal Model Jury Instructions for Use in the District Court

OPERATING A BOAT WHILE

UNDER THE INFLUENCE OF INTOXICATING LIQUOR

G.L. c. 90B, § 8(a)(1)

The defendant is charged with operating a (boat) (vessel) while under

the influence of intoxicating liquor.

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 (boat)(vessel);

Second: That the defendant did so on the waters of the

Commonwealth; and

Third: That while operating the (boat)(vessel), the defendant was

under the influence of intoxicating liquor.

To prove the first element, the Commonwealth must prove the

defendant operated a (boat)(vessel). A person operates a (boat)(vessel)

when he (she) navigates, pilots, drives or otherwise controls the movement

of it.

(The statutory definition for operation in 90B, § 1, is to “navigate or otherwise use a motorboat or vessel.”)

If necessary, instruct on whichever definition below applies:

Boat

A boat, also referred to as a motorboat, is a watercraft propelled by

machinery, whether or not such machinery is the principal source of

propulsion.

G.L. c. 90B, § 1

Vessel

A vessel is a craft for traveling on water. It includes watercraft of

every description, (except a seaplane) used or capable of being used as a

means of transportation on the water. Ships, boats, and jet skis are

examples of vessels.

G.L. c. 90B, § 1

To prove the second element of the offense, the Commonwealth must

prove that the (boat)(vessel) was operated on the waters of the

Commonwealth.

Instruct on whichever definition below applies:

Inland Waters The waters of the Commonwealth include all inland waters

except ponds that are less than ten acres in area, owned by one person,

and not open to the public.

Coastal Waters

The waters of the Commonwealth include all coastal waters

within the rise and fall of the tide and the marine limits of the jurisdiction of

the Commonwealth.

G.L. c. 90B, § 1

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 (boat) (vessel). What does it mean to

be “under the influence” of alcohol? Someone does not have to be drunk

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

alcohol if he has consumed enough alcohol to reduce his (her) ability to

operate a (boat) (vessel) safely, by decreasing his alertness, judgment, and

ability to respond promptly. It means that a person has consumed enough

alcohol to reduce his (her) mental clarity, self-control and reflexes, and

thereby left him (her) with a reduced ability to operate safely.

The Commonwealth is not required to prove that the defendant

actually operated in an unsafe or erratic manner, but is required to prove

that his (her) ability to operate 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 at the time.

If there are stipulations

Because the parties have stipulated (that the defendant

was operating a (boat) (vessel) (and) (that the location was the waters of

the Commonwealth) (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 [element(s)]. 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 (boat)(vessel);

Second: That the defendant did so on the waters of the

Commonwealth; and

Third: That while operating the (boat)(vessel), the defendant was

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.

[If the per se offense is charged, add language from model Instruction 5.700.]

SUPPLEMENTAL INSTRUCTIONS

1. If there is evidence both of alcohol and drug usage. The defendant may be found

guilty of this offense if his (her) ability to operate a (boat) (vessel) safely

was diminished, and alcohol was one contributing cause of that diminished

ability. It is not necessary that alcohol was the only or exclusive cause.

If the defendant’s ability to operate safely was diminished by alcohol,

then he (she) has violated the statute even if some other factor tended to

magnify the effect of the alcohol or contributed to his (her) diminished

capacity to operate safely. 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 to operate safely.

If alcohol was not one of the causes of the defendant’s diminished

capacity to operate safely, the defendant must be found not guilty.

Commonwealth v. Stathopoulos, 401 Mass. 453, 457 (1988).

2. Waters within the jurisdiction of the Commonwealth

The waters of the commonwealth extend to the outer limits of the

territorial sea of the United States. The territorial sea of the United States

extends 12 nautical miles from the baseline shore. The baseline shore is

defined by the low water mark.