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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Kiss,
Present: Armstrong, C.J.,
Smith, & Duffly, JJ.
Complaint received and sworn to in
the Lawrence Division of the District Court Department on
The case was tried before Ellen Flatley,
J.
Stephen L. Jones (James M. Milligan, Jr., with him)
for the defendant.
Catherine Langevin Semel,
Assistant District Attorney, for the Commonwealth.
SMITH, J.
The defendant was tried by a jury of six in the
Lawrence District Court on a complaint charging him with operating a motor
vehicle while under the influence of alcohol. At the conclusion of the
Commonwealth's evidence, the defendant filed a motion for a required finding of
not guilty, which was denied. The jury subsequently returned a guilty verdict
on the complaint.
On appeal, the defendant claims error in
denying his motion for a required finding of not guilty. He also requests that
we adopt a "shelter defense" for those
persons who, while operating a motor vehicle after consuming alcohol, stop
their motor vehicles because they feel the effect of the alcohol.
1. The denial of the motion for a required finding of not guilty. The defendant
argues that the Commonwealth introduced insufficient evidence to demonstrate
that the defendant had operated his motor vehicle on a way "to which the
members of the public have access as invitees or licensees." G. L.
c. 90, § 24(1)(a)(1), first par., as
appearing in
We examine the evidence introduced at trial, in the light most favorable to the
Commonwealth. Commonwealth v. Latimore, 378
The defendant argues that because the stores in
the shopping mall were closed, the parking lot was not a way to which the
public had access as invitees or licensees.
The record discloses that the
The trial judge ruled, in denying the defendant's motion for a required finding
of not guilty, that even if all the stores in the mall were closed, there were
other amenities available to the general public after the stores' closing
hours, such as the ATM machine, pay telephones, and newspaper distribution
boxes. Therefore, the judge held that at the time the defendant was arrested,
the parking lot at the mall was a place to which the public had access as
invitees or licensees.
Prior to 1961, G. L. c. 90,
§ 24(1)(a), criminalized operation of a motor
vehicle upon a way or place "to which the public has a right of
access." See G. L. c. 90, § 24(1)(a),
as appearing in
In 1961, the Legislature amended the statute to include also "any way or
in any place to which members of the public have access
as invitees or licensees."[2]
In deciding whether a particular place is
included within the amendment, decisional law has outlined pertinent
considerations. For example, "[i]t is the status
of the way, not the status of the driver, which the statute defines . . . ."
Commonwealth v. Hart,
The characteristics of the North Andover shopping mall parking lot, even during
the hours that the mall shops are closed, place the parking lot within reach of
G. L. c. 90, § 24, as amended by St. 1961, c. 347. While the use
of the parking lot after closing hours would be significantly diminished, there
were services at the mall, such as pay telephones and newspaper distribution
boxes, which could be used without the presence of a storekeeper. There was no
suggestion that the ATM machine was not available. Thus, their presence created
the reasonable expectation among members of the public that they were welcome
to operate their vehicles in the parking lot in order to access those services
that were uniquely available when the shops were closed.
2. Public policy and the "shelter defense." The defendant argues for
the first time on appeal that as a matter of public policy, a person should not
be punished for the crime of operating a motor vehicle while under the
influence of alcohol if, once the operator feels the effect of alcohol, he or she
removes the vehicle from the roadway. Thus, the defendant requests that we
adopt a "shelter defense" for individuals who stop their vehicles
because they think they are under the influence of alcohol or drugs.
We realize that at least one jurisdiction,
Judgment affirmed.
FOOTNOTES:
[1] Officer Brush described the parking lot as a
"private way," but it is clear from his testimony that the public had
access to the parking lot.
[2] This language remains in the current statutory
scheme. See G. L. c. 90, § 24(1)(a)(1),
first par., as appearing in