Massachusetts Appeals Court Reverses OUI Conviction of Woman Having Sex in Truck When Confronted by Police

The Massachusetts Appeals Court today reversed the conviction of a woman who was found guilty of operating under the influence of alcohol after a police officer came upon her having sex in a truck on the side of Route 9 in Ware.  The name of the case is Commonwealth v. Beltrandi

Following an evening of questionable choices, the defendant was arrested and charged with OUI on May 29, 2012.  At around 2:30 a.m., the police received a report that there was a pickup truck stopped on the side of the road.  Part of the truck was over the fog line and when a police officer arrived, the truck’s engine was running, its lights were out, and its windows were fogged.  The defendant was sitting in the driver’s seat and a man was sitting in the passenger seat.  The officer testified that the parties were “separating” as he walked up to the truck and they were both only partially clothed.  The officer got the defendant out of the truck and concluded, based on the failure of field sobriety tests, that she was intoxicated.

There was no dispute at the trial that the defendant was extremely drunk (her blood alcohol content was an amazing 0.35 percent, which is more than four times the legal limit).  The issue was whether the defendant had been operating the truck prior to its stopping on the side of the road.  The defendant testified she and her companion had been at a bar and when they left, she asked him to drive because she was intoxicated.  During the ride, he stopped on the side of the road and she climbed on top of him to have sex.  When the police cruiser arrived, the man slid into the passenger’s seat and she found herself in the driver’s seat.  As if the facts of the case weren’t already scandalous enough, the truck was registered to the defendant’s husband (who was not the man she was having sex with in the truck).  The jury convicted the defendant of OUI.

The defendant argued on appeal that the Commonwealth had not proven beyond a reasonable doubt she had been the driver.  While acknowledging it was a close call, the Appeals Court ruled the evidence was sufficient for the jury to have concluded the defendant was driving.  The Court based its opinion on the fact that the defendant was in the driver’s seat when the officer approached and the defendant was drunk (and the manner in which the vehicle was parked suggested it had been driven by a drunk driver).  It’s an extraordinarily weak case that should have resulted in an acquittal.  The Appeals Court recognized the defendant’s story could have been consistent with the officer’s observations.  However, the Court said it was reasonable for the jury to draw the opposite conclusion, which resulted in the defendant properly being convicted.

So why then was the conviction reversed?  Because the prosecutor made a completely inappropriate statement in his closing argument.  The man who was in the truck with the defendant had subsequently moved to California and he was unavailable to testify at the trial.  The prosecutor snidely argued it was “convenient” the man was not present to testify and suggested he would have been able to provide relevant testimony at the trial.  In some cases, a party can argue the jury should draw an adverse inference against the opponent for failing to call a witness.  However, there are rules that apply to making a missing-witness argument.  Here, the prosecutor would have needed to prove the witness was available to the defendant, not hostile to the defendant, and there was no logical reason why the defendant did not call him as a witness.  The prosecutor did not establish any of these elements and the Court said his closing argument had improperly invited the jury to speculate about why certain evidence was not admitted at the trial.

The end result is that another jury will be entertained by the crazy facts of this case and hopefully the defendant will receive a better result.