Instruction 7.860, Criminal Model Jury Instructions for Use in the District Court

SCHOOL ZONE DRUG VIOLATION

G.L. c. 94C, § 32J

(for violations of sections 32, 32A, 32B, 32C,32D, 32E,32F, or 32I)

First instruct on the underlying offense.

If you find the defendant guilty of the charge of, you

must go on to consider whether the Commonwealth has proven beyond a

reasonable doubt two additional elements:

First: That that the offense was committed in, on, or within 300 feet of

a (public preschool) (private accredited preschool) (public headstart

facility) (private accredited headstart facility) (public or private elementary

school) (public or private vocational school) (public or private secondary

school);

Commonwealth v. Thomas, 71 Mass. App. Ct. 323, 325 (2008) (evidence of accreditation is only

necessary for private preschools and headstart facilities); Commonwealth v. Bell, 442 Mass. 118,

125-126 (2004) (“secondary school” does not require Department of Education accreditation);

Commonwealth v. Gonzales, 33 Mass. App. Ct. 728, 730 (1992) (Commonwealth must prove that

school is of type enumerated in statute; subject is not appropriate for judicial notice).

Second: That the offense occurred between five o’clock in the

morning and twelve o’clock midnight.

The distance which the Commonwealth must prove is measured from

where the offense occurred to the real property on which the (preschool)

(school) (facility) is located. However, the Commonwealth is not required

to prove that the defendant knew that they were within 300 feet of that

property. Nor is it required to prove that the (preschool) (school) (facility)

was in session at the time of the offense.

Commonwealth v. Roucoulet, 413 Mass. 647 (1992) (defendant need not intend to distribute drugs

within school zone; sufficient to have possessed drugs within school zone with intent to distribute

them anywhere);.