After a jury trial, the defendant, Michael Riley, was convicted of operating a motor vehicle while under the influence of intoxicating liquor. On appeal, the defendant does not contest the sufficiency of the evidence to support his conviction; he argues only that the judge misinstructed the jury on the elements of the crime.
A brief summary of the evidence will serve to place the issue raised by the defendant in perspective. On February 4, 1996, at approximately 2:35 a.m., a State trooper patrolling in Everett was nearly forced off the road by a pickup truck operated by
The defendant’s eyes were red and glassy and his speech was slurred. He admitted to having had two beers. The trooper had the defendant step out of his truck to perform field sobriety tests, which the defendant failed. Thereupon the trooper arrested the defendant for operating a motor vehicle while under the influence of intoxicating liquor.
General Laws c. 90, § 24(1)(a)(1), as appearing in St. 1994, c. 25, § 3, provides in relevant part:
“Whoever, upon any way or in any place to which the public has a right of access, . . . operates a motor vehicle while under the influence of intoxicating liquor . . . shall be punished . . . .”
The parties had stipulated to the elements of operation and operating on a public way. Therefore, the only issue remaining before the jury was whether the defendant’s ability to operate was impaired by the consumption of alcohol.
The judge instructed the jury on the meaning of the phrase “under the influence of intoxicating liquor” by quoting almost verbatim from Instruction 5.10 of the Model Jury Instructions for Use in the District Court (1995). A portion of the judge’s instruction was as follows: ’’The purpose of the statute is to protect the public from any driver whose alertness, judgment, and ability to respond properly have been lessened by alcohol.™ This would include someone who is drunk, but it would also include anyone who has consumed enough alcohol to reduce his mental clarity, self-control, and reflexes and thereby left him with a reduced ability to drive safely” (emphasis supplied). There was no objection to the instruction.
After the jury began deliberating, they returned with a question, asking the judge to “redefine impairment or all elements required to be beyond a reasonable doubt.”
The judge reinstructed the jury that of the three elements
Obviously referring to the three examples of mental clarity, self-control, and reflexes, the judge stated that if the thrust of the jury’s question was whether they had to find all three examples beyond a reasonable doubt (the judge, at this point in her instructions, changed from using the word “examples” to the word “factors”), it was not necessary to find all three “factors” beyond a reasonable doubt, but rather it was necessary to find only one “factor” beyond a reasonable doubt.
The defendant objected to the reinstruction and argues that “mental clarity, self-control, and reflexes” are essential elements of “impairment” and all must be proved beyond a reasonable doubt, not just one.
There was no error in the judge’s instructions. The words “mental clarity, self-control, and reflexes” used in the Model Jury Instruction are merely examples or factors that the jury may use in determining whether the consumption of alcohol diminished the defendant’s capacity to operate his motor vehicle safely. Commonwealth v. Connolly,
Judgment affirmed.
The Model Jury Instruction used here appears to paraphrase the language in Commonwealth v. Connolly,