Instruction 7.670, Criminal Model Jury Instructions for Use in the District Court

CARRYING A LOADED FIREARM ON ONE’S PERSON

OR HAVING CONTROL OVER A LOADED FIREARM

IN A VEHICLE WHILE UNDER THE INFLUENCE

G.L. c. 269, § 10H

The defendant is charged with (carrying a loaded firearm on his

person) (having a loaded firearm under his (her) control in a motor

vehicle) while under the influence of (intoxicating liquor) (marijuana)

(narcotic drugs) (depressants) (stimulant substances).

To prove the defendant guilty of this offense, the

Commonwealth must prove the following three things beyond a

reasonable doubt:

First: That the defendant (carried a weapon on their person)

(had a weapon under their control in a vehicle) that met the legal

definition of a firearm;

Second: That the firearm was loaded with ammunition; and

Third: That the defendant was under the influence of

(intoxicating liquor) (marijuana) (narcotic drugs) (depressants)

(stimulant substances) while they (carried the firearm on their person)

(had the firearm under their control in a motor vehicle).

To prove the first element, the Commonwealth must prove the

defendant (carried a weapon on their person) (had a weapon under

their control in a vehicle) and that the weapon met the legal definition

of a “firearm.”

The legal definition of a firearm has three parts. First, it must be

a weapon; Second, it must be capable of discharging a shot or bullet;

and Third, it must have a barrel length of less than 16 inches. The

term “barrel length” refers to “that portion of a firearm. . . through

which a shot or bullet is driven, guided or stabilized, and [includes]

the chamber.”

G.L. c. 140, § 121

If it is alleged that the defendant carried a firearm

To prove the first element, the Commonwealth must also prove

the defendant carried a firearm. A person carries something when

they move it, no matter how slight that movement might be. Such

movement requires no more than momentary possession of the

object.

One carries an object on their person when the object is

physically handled by or attached to the person, or is in the

person’s clothing.

Whether the defendant carried a firearm on their person is

something that you must determine from all the facts and any

reasonable inferences that you choose to draw from those facts.

If it is alleged the defendant had control over a firearm in a vehicle

To prove the first element, the Commonwealth must also prove

the defendant had control over a firearm in a vehicle. It is not enough

for the Commonwealth to prove that the defendant was present in the

same vehicle as the firearm. To prove control over the firearm, the

Commonwealth must also prove that the defendant knew that the

firearm was there, and that the defendant had both the ability and the

intention to exercise control over it. The Commonwealth is not

required to prove that the defendant had exclusive control over the

firearm.

Whether the defendant had control over a firearm in a vehicle is

something that you must determine from all the facts and any

reasonable inferences that you choose to draw from those facts.

To prove the second element, the Commonwealth must prove

the firearm was loaded with ammunition. Ammunition is any

(cartridge or cartridge case) (primer) (igniter) (bullet) (propellant

powder) designed for use in a firearm. A firearm is loaded if

ammunition is contained in the weapon or within a feeding device

attached to it.

G.L. c. 269, § 10(o)

To prove the third element, the Commonwealth must prove that

at the time the defendant (carried a loaded firearm on their person)

(had a loaded firearm under their control in a vehicle), the defendant

was under the influence of (alcohol) (marijuana) (narcotic drugs)

(depressants) (stimulant substances).

If the substance is alleged to be alcohol

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 (she) has

consumed enough alcohol to reduce their ability to safely (carry a

loaded firearm on their person) (have a loaded firearm under their

control in a motor vehicle), by decreasing their alertness or judgment.

It means that a person has consumed enough alcohol to reduce their

mental clarity, self-control or reflexes, and thereby left them with a

reduced ability to (carry) (have under their control) a loaded firearm in

a safe manner. The Commonwealth is not required to prove that the

defendant actually (carried a loaded firearm) (had a loaded firearm

under his [her] control) in an unsafe manner, but it is required to

prove that the defendant’s ability to safely (carry a loaded firearm)

(have a loaded firearm under their control) was diminished by the

consumption of alcohol. The amount of alcohol necessary to do this

may vary from person to person. You may rely on your own

experience and common sense about the effects of alcohol on a

person. 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 and

place in question.

Commonwealth v. Veronneau, 90 Mass. App. Ct. 477, 479-80 (2016) (the standard for

intoxication for the crimes of operating a motor vehicle under the influence and carrying a

loaded firearm while under the influence are not necessarily the same).

See Commonwealth v. Riley, 48 Mass. App. Ct. 463, 465 (2000) (noting that the words

“mental clarity, self-control, and reflexes” are “merely examples or factors that the jury

may use in determining whether the consumption of alcohol diminished the defendant’s

capacity [to carry a loaded firearm]” and that the Commonwealth is not required to prove

any of these examples or factors beyond a reasonable doubt).

If there is evidence of a breath or blood test and no per se OUI charge You may

also consider whether a (breath) (blood) test showed that the

defendant had consumed any alcohol. However, the (breath) (blood)

test is not sufficient by itself to prove that the defendant was under

the influence of alcohol.

[As a preliminary matter, in the absence of a judge taking judicial notice upon request of

what a breathalyzer measures, a judge should consider what foundational evidence must

be introduced before admitting breath or blood test evidence. Commonwealth v. Colturi,

448 Mass. 809, 811 (2007) (breath test evidence); Commonwealth v. Filoma, 79 Mass.

App. Ct. 16, 20-21 (2011) (same). See also Commonwealth v. Dyer, 77 Mass. App. Ct.

850, 857 (2010) (blood test evidence).]

If there is evidence of a breath or blood test and defendant is charged with per se OUI

You may also consider whether a (breath) (blood) test showed that

the defendant had consumed any alcohol. However, unlike the

offense of operating under the influence, 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 while (carrying a loaded

firearm on their person) (having a loaded firearm under their control

in a vehicle).

See note 4, infra.

If the substance is alleged to be marijuana, narcotic drugs, depressants, or stimulants)

What does it mean to be “under the influence” of (marijuana)

(narcotic drugs) (depressants) (stimulant substances)? A person is

under the influence of (marijuana) (narcotic drugs) (depressants)

(stimulant substances) if they have used enough of the substance to

reduce their ability to safely (carry a loaded firearm on their person)

(have a loaded firearm under their control in a motor vehicle), by

decreasing their alertness or judgment. It means that a person has

used enough of the substance to reduce their mental clarity, self-control or reflexes, and thereby left them with a reduced ability (to

carry) (have under their control in a motor vehicle) a loaded firearm in

a safe and responsible manner. The Commonwealth is not required

to prove that the defendant actually (carried a loaded firearm) (had a

loaded firearm under their control in a vehicle) in an unsafe manner,

but it is required to prove that their ability to safely (carry a loaded

firearm) (have a loaded firearm under their control in a vehicle) was

diminished by the use of (marijuana) (narcotic drugs) (depressants)

(stimulant substances).

You are to decide this from all the believable evidence in

this case, together with any reasonable inferences that you draw

from the evidence. You may consider evidence about the

defendant's appearance, condition and behavior at the time, in

order to determine whether the defendant’s ability to (carry)

(have under their control in a motor vehicle) a loaded firearm in

a safe manner was diminished by (marijuana) (narcotic drugs)

(depressants) (stimulant substances).

So in summary there are three elements the Commonwealth

must prove beyond a reasonable doubt:

First: That the defendant (carried a weapon on their person)

(had a weapon under their control in a vehicle) that met the legal

definition of a firearm;

Second: That the firearm was loaded with ammunition; and

Third: That the defendant was under the influence of

(intoxicating liquor) (marijuana) (narcotic drugs) (depressants)

(stimulant substances) while they (carried the firearm on their person)

(had the firearm under their control in a motor vehicle).

If the Commonwealth proved all three elements beyond a

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

Commonwealth failed to prove any element beyond a reasonable

doubt, you must find the defendant not guilty.

SUPPLEMENTAL INSTRUCTIONS

1. Roadside Assessments

You heard testimony in this case that the defendant, at the

request of a police officer, performed or attempted to perform various

roadside assessments. These roadside assessments are not

scientific tests of impairment by (alcohol) (marijuana) (narcotic drugs)

(depressants) (stimulant substances) use. A person may have

difficulty performing these tasks for many reasons unrelated to the

consumption of (alcohol) (marijuana) (narcotic drugs) (depressants)

(stimulant substances).

It is for you to decide if the defendant’s performance on these

roadside assessments indicate that their ability to (carry) (have under

their control in a motor vehicle) a loaded firearm in a safe manner was

diminished by (alcohol) (marijuana) (narcotic drugs) (depressants)

(stimulant substances).

You may consider this evidence solely as it relates to the

defendant’s balance, coordination, mental clarity, ability to retain and

follow directions, ability to perform tasks requiring divided attention,

and other skills you may find are relevant to safely (carrying) (having

under their control in a motor vehicle) a loaded firearm.

It is for you to determine how much, if any, weight to give the

roadside assessments. In making your determination, you may

consider what the officer asked the defendant to do, the

circumstances under which they were given and performed, and all of

the other evidence in this case.

Finally, evidence of how a defendant performed in roadside

assessments, standing alone, is never enough to convict a defendant

of (carrying) (having under their control in a motor vehicle) a loaded

firearm while under the influence.

See Commonwealth v. Gerhardt, 477 Mass. 775, 785, 789 (2017).

2. Factors that may affect reliability of breath or blood testing

In deciding whether to rely on evidence about a (breath) (blood)

test, 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 (his) (her) 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.

3. If there is an issue regarding any delay in blood or breath testing

A passage of up to three hours between testing and the time of the

alleged offense may be reasonable, however the facts and

circumstances of the case may suggest that a greater or lesser time

period might apply. Ultimately it is up to you to decide what is

reasonable.