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Massachusetts Appeals Court: Defendant Too Drunk to Carry a Gun, But Sober Enough to Drive

The Massachusetts Appeals Court today affirmed a district court judge’s verdicts that a defendant was not guilty of operating a motor vehicle while under the influence of alcohol but guilty of carrying a loaded firearm while under the influence of alcohol.  The name of the case is Commonwealth v. Veronneau

On May 23, 2013, a state trooper saw the defendant driving his car in New Bedford.  The defendant was driving an estimated 82 miles per hour in a 50 mile-per-hour zone.  The trooper watched the defendant weave through traffic without using his turn signal, drive in the breakdown lane, and drift off to the side of the road.  The trooper pulled over the defendant and ordered him to get out of the car (after noticing the defendant smelled like alcohol and had glassy eyes).  As he exited, the defendant had to grab onto the car for balance.  The trooper saw an item in the defendant’s pants pocket that appeared to be a gun.  The defendant told the trooper he was carrying a loaded pistol and he had a license to carry (which was confirmed by the trooper).  The trooper administered a series of field sobriety tests to the defendant on the side of the road and the defendant failed the two balancing tests.  As the defendant was being arrested, he admitted to drinking three vodka tonics and begged the trooper to give him a break.  Upon arrival at the barracks, the defendant chose to take the Breathalyzer and blew a .07 (below the legal limit of .08).  The defendant was charged with operating under the influence of alcohol (OUI) and carrying a loaded firearm under the influence of alcohol (FUI).  He waived his right to a jury trial and chose to have a trial before just a judge (a bench trial).  The judge found the defendant not guilty of OUI but guilty of FUI.  The defendant appealed.

The defendant’s primary argument on appeal was that the judge’s decision to acquit on the OUI but convict on the FUI created fatally inconsistent verdicts.  Because both statutes use the phrase “under the influence,” the defendant contended the judge must have applied a lower standard of proof to the FUI charge.  The Appeals Court disagreed and concluded the same level of intoxication could create an unacceptable risk for someone to handle a gun while being acceptably safe for the same person to drive.  The Appeals Court said the trial judge could have reasonably concluded the Commonwealth had not proven the defendant consumed enough alcohol to render his operation of the motor vehicle unsafe (particularly given that the defendant blew below the legal limit on the Breathalyzer).  The judge also could have reasonably concluded, according to the Appeals Court, that the defendant’s lack of coordination (proven by his lack of balance when exiting his car and attempting to perform field sobriety tests) created an unacceptable risk that he would mistakenly cause his loaded pistol to discharge.  Verdicts are considered legally inconsistent when they could not have resulted from any set of facts.  Given the Appeals Court’s analysis, the verdicts in this case were not legally inconsistent and accordingly the defendant’s conviction for FUI was affirmed.

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