Commonwealth v. Ross, AC 16-P-1392

On May 23, 2014 at ~9:50 PM in Sherborn, an officer radar-recorded the defendant driving 50 mph in a 35 mph zone on Western Avenue, a narrow two-lane residential road with unpaved shoulders and no breakdown lane.
The road segment was lined with trees, telephone poles, and residential fences; the stop occurred at night and the officer described the stop location as "well-lit by streetlights," though defense testimony disputed that.
The officer smelled a strong odor of alcohol when the defendant lowered his window and observed glossy eyes; there were two passengers in the car on the start of Memorial Day weekend.
The officer administered three field sobriety tests; he testified the defendant was unsteady, slurred speech, smelled of alcohol, and failed or poorly performed the tests.
The defendant was tried on OUI (G. L. c. 90, § 24(1)(a)(1)) and negligent operation (G. L. c. 90, § 24(2)(a)); jury acquitted on OUI and convicted on negligent operation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence sufficed to prove negligent operation (that driving was negligent so lives/safety might be endangered)	Excessive speed (50 in 35) at night on a narrow, tree-/pole-/fence-lined residential road, with passengers and signs of intoxication, made loss of control and collision reasonably probable	Speeding alone is insufficient; no collision or near-collision occurred and defendant was not convicted of OUI	Held: Sufficient. Jury could reasonably find negligent operation given speed, road conditions, time (night), passengers, and evidence of impairment
Whether Commonwealth’s case deteriorated after defense evidence (i.e., whether later evidence undermined earlier proof)	Commonwealth: defense testimony about lack of streetlights did not negate elements and could be disbelieved; poor lighting would increase danger	Defense argued lack of streetlights made officer’s testimony unreliable and undercut proof	Held: No deterioration. Defense evidence was not so overwhelming as to render Commonwealth’s proof insufficient; jury could credit Commonwealth

Commonwealth v. Duffy, 62 Mass. App. Ct. 921 (use of negligent-operation elements to require proof that lives or safety might be endangered)
Commonwealth v. Ferreira, 70 Mass. App. Ct. 32 (negligent operation conviction upheld without collision where context made danger reasonable)
Commonwealth v. Woods, 414 Mass. 343 (evidence of drinking before driving with passengers is relevant to reasonable care)
Commonwealth v. Robicheau, 421 Mass. 176 (acquittal on OUI does not bar consideration of intoxication evidence on negligent-operation charge)
Commonwealth v. O'Laughlin, 446 Mass. 188 (standard for reviewing required-finding motions and considering deterioration)