In a troubling decision delivered yesterday, the Massachusetts Appeals Court affirmed a man’s conviction for operating under the influence of alcohol where there was virtually no evidence to establish that he was impaired. The name of the case is Commonwealth v. Rarick.
The defendant was arrested and charged with operating under the influence of alcohol after being stopped by a Williamstown police officer at 3:04 a.m. on New Year’s Day in 2013. The officer stopped the defendant for driving 58 miles per hour in a 45 mile-per-hour zone. When the officer approached the defendant’s car, the defendant already had his license and registration in his hand to provide to the officer. The officer smelled a moderate odor of an alcoholic beverage emanating from the defendant and observed his eyes to be glassy and bloodshot. The officer asked the defendant if he had consumed any alcohol and the defendant said he drank a six-pack of beer earlier in the night, with his last drink being more than two hours before being pulled over. The defendant is six feet, three inches tall and weighs 230 pounds.
The officer asked the defendant to get out of the car and the defendant did so with no problem. There was no evidence that the officer asked the defendant to perform any field sobriety tests. The defendant was not swaying or staggering at any point during his interaction with the police and he never leaned against his vehicle for balance. There is nothing in the Appeals Court’s decision to suggest that the defendant had slurred speech or was confused in any way.
The defendant’s girlfriend, who was with him in the car, testified on his behalf. She told the jury that the defendant had gotten up very early the day before he was arrested and they had been attending a New Year’s Eve party prior to being stopped by the police. Over the course of about five and a half hours, the defendant drank six beers and ate a full dinner. She further testified that she did not believe the defendant was under the influence of alcohol.
The jury convicted the defendant and he appealed, arguing that the judge should have entered a finding of not guilty before the case went to the jury. In every criminal case, the defendant files what is called a “motion for a required finding of not guilty” immediately after the Commonwealth finishes presenting its case. The defendant is essentially arguing that no rational finder of fact could convict him based on the Commonwealth’s evidence. While these motions are filed in every case, they are granted by judges relatively infrequently, because the judge is required to consider the Commonwealth’s evidence “in the light most favorable to the Commonwealth.” Therefore, if the Commonwealth presents any evidence, however weak, that could support a conviction, the judge will deny the motion for a required finding and send the case to the jury.
The Appeals Court in this case emphasized that it was not commenting on the correctness of the jury’s verdict. Instead, it was concluding that a rational fact finder could have convicted the defendant based on the evidence produced at trial – namely that the defendant had bloodshot and glassy eyes, that a moderate odor of an alcoholic beverage was coming from him, that he said he had consumed six beers earlier in the evening, and that he was speeding.
This is an incredibly dangerous opinion, and could lead to a conviction for anyone who has a few drinks at dinner and is driving home. A driver does not have to be driving erratically or unsafely in order to be convicted of OUI. However, in cases where there is no erratic operation, there is typically much stronger evidence of impairment, such as slurred speech or failed field sobriety tests. In my view, the evidence in this case was legally insufficient to support a conviction and the judge should have entered a finding of not guilty.
This is another reminder of how dangerous it can be to speak to the police. If the defendant had not told the officer that he drank a six pack, that might have made a difference.