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Massachusetts Appeals Court Clarifies Definition of Public Way in Affirming OUI Conviction

The Massachusetts Appeals Court today upheld convictions of operating under the influence of alcohol and negligent operation against a man who drunkenly drove around a North Falmouth parking lot during the early morning hours of August 3, 2017.  The name of the case is Commonwealth v. Tsonis.

There is a resort in North Falmouth called the Sea Crest Beach Hotel, and it contains nine buildings including a restaurant, a bar, a hotel, a retail shop, and a public beach, all of which are open to the public.  There is a parking lot adjacent to the buildings which is accessible by a Quaker Road, which is a public way.  To enter the parking lot, a driver must drive past a gatehouse that contains a sign reading “guest check in.”  Occasionally the parking lot is restricted to hotel guests and members of the beach club, and during those times the gatehouse displays a sign that parking is limited to hotel guests and beach club members.  This sign is never displayed during the nighttime (which is when the defendant was driving in the parking lot).

During the early morning hours of August 3, 2017, a resort employee saw the defendant slowly driving his truck in the parking lot.  The employee approached the truck and asked the defendant if he needed help.  The defendant didn’t initially answer but had a glazed look on his face.  Shortly thereafter, the employee again confronted the defendant and this time the defendant opened the door to his truck, lunged at the employee with clenched fists, and screamed incoherent threats at him.  The employee called the cops, who appeared and saw the defendant driving around the parking lot.  He was crossing marked spaces and almost struck parked cars.  An officer stopped his truck and asked the defendant to exit.  It was clear to the cop the defendant was drunk – he was unsteady on his feet, smelled like an alcoholic beverage, had glassy and bloodshot eyes, spoke with slurred speech, and was unable to answer the officer’s simple questions.  The officer placed the defendant under arrest and at a subsequent trial, the defendant was convicted of operating under the influence of alcohol and negligent operation.  He appealed and the Appeals Court affirmed.

In order to convict a defendant of operating under the influence of alcohol, the prosecutor must prove he: (1) operated a motor vehicle; (2) on a public way; (3) while under the influence of alcohol.  Likewise, the negligent operation statute requires the Commonwealth to prove public way.  Defendants usually contest the third element, as the first two elements are ordinarily obvious (most of the time, a police officer pulls over a defendant who is driving on a public roadway).  In this case, the defendant’s primary appellate argument was that the parking lot where he was driving was not a public way.  A public way is defined as any place where the public has a right of access or has access as a licensee or an invitee.  The Appeals Court here ruled the trial judge had correctly concluded the parking lot was a public way, because members of the public had access to the lot to visit the beach and the various businesses attached to it.  Although there was a gatehouse present at the beginning of the parking lot, drivers were still permitted to drive into the parking lot (and at the time of the incident, the gatehouse was unattended and there were no signs prohibiting entry by the public).  The Court pointed out that a public place is not necessarily only a place where the public can park – as long as the public has the right to travel on it.  Accordingly, the trial judge properly concluded the defendant had operated his motor vehicle on a public way and his convictions were affirmed.

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