Instruction 5.750, Criminal Model Jury Instructions for Use in the District Court

OPERATING A (MOTOR VEHICLE) (BOAT)

UNDER THE INFLUENCE OF (ALCOHOL) (DRUGS)

WHILE (LICENSE) (RIGHT TO OPERATE) WAS

(SUSPENDED) (REVOKED) FOR OUI

BIFURCATED TRIAL

G.L. c. 90, § 23, ¶4

[This instruction is for use during the second part of a bifurcated trial

when, to avoid potential prejudice, the judge has bifurcated the trial

for the present offenses of OUI and Operating After Suspension and the trial

for the aggravated offense of Operating after Suspension for OUI.]

This model instruction is drafted for the offense of Operating Under the Influence of Alcohol while

Operating with a License Suspended for OUI. Based on the many possible theories of this offense, see

note 2, the judge should make appropriate adjustments to the instruction where necessary. The word

“drugs” may be substituted for the word “alcohol,” the word “boat” may be substituted for the word “motor

vehicle,” and the word “revocation” or “revoked” may be substituted for the word “suspension” or

“suspended”. The statute applies to dispositions under §§ 24D, 24E, 24G, 24L and 24N as well as to

pleas of nolo contendere and admissions to sufficient facts.

Even without a motion to bifurcate this charge, the court should take care to evaluate whether to

bifurcate the aggravated portion of this offense that relies on a prior conviction. If the court chooses not

to bifurcate, the judge should use the alternate instruction, Instruction 5.760, OUI while Operating with

License Suspended for OUI (Unbifurcated).

You have returned a verdict that the defendant is guilty of

operating a motor vehicle on [date of present offense] while under the

influence of alcohol.

The Commonwealth alleges that, at the time of that offense, the

defendant’s (license) (right) to operate a motor vehicle was

(suspended) (revoked) as a result of having previously been

convicted of operating a motor vehicle while under the influence of

alcohol.

To prove the defendant guilty of this offense, the

Commonwealth must prove two things beyond a reasonable doubt:

First: That at the time of operation, the defendant’s (license)

(right) to operate a motor vehicle was (suspended) (revoked) as a

result of a previous Massachusetts conviction for operating a motor

vehicle while under the influence of alcohol; and

Second: That the defendant had been notified of the

(suspension) (revocation).

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that, at the time of operation, the

defendant’s (license) (right) to operate a motor vehicle was

(suspended) (revoked) as a result of a conviction in a Massachusetts

court for the crime of operating a motor vehicle while under the

influence of alcohol.

If a CWOF: I instruct you that the (term “continued without a

finding” is) (letters C-W-O-F are) a legal term which for

purposes of this case constitutes a conviction.

The Commonwealth must prove beyond a reasonable doubt that

the person previously convicted of operating a motor vehicle while

under the influence of alcohol is actually the same person as the

defendant in the present case. You must carefully examine and

consider the evidence to make these determinations.

You may examine the evidence in the case, all of the

surrounding circumstances, and any reasonable inferences you draw

from that evidence, to help you determine whether this defendant’s

(license) (right) to operate was (suspended) (revoked) at the time of

the alleged offense on [date of present offense], because of the prior

conviction in a Massachusetts court for operating while under the

influence of alcohol.

To prove the second element, the Commonwealth must prove

beyond a reasonable doubt that the defendant was notified of the

(suspension) (revocation). I instruct you as a matter of law that the

(suspension) (revocation) begins on the date of conviction.

If additional instruction on notice is appropriate: The Commonwealth may

prove notice by proving beyond a reasonable doubt that an

agent of the defendant such as a household member or

employer was notified, provided, however, that the agent

household member or employer was one who would

reasonably be expected to notify the defendant.

You may examine the evidence in the case, all of the

surrounding circumstances, and any reasonable inferences you draw

from that evidence, to help you determine whether the defendant

received notice that their right to operate was (suspended) (revoked)

due to the conviction.

If the Commonwealth has proved each of the elements beyond a

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

Commonwealth has failed to prove any element beyond a reasonable

doubt, you must return a verdict of not guilty. 1