50 RI Bar J., No. 2, Pg. 17 (November, 2001). Defending the Rhode Island Licensee Charged with Drunk Driving in Massachusetts.

• Author: ROBERT H. HUMPHREY, ESQ.

Rhode Island Bar Journal

Volume 50.

50 RI Bar J., No. 2, Pg. 17 (November, 2001).

Defending the Rhode Island Licensee Charged with Drunk Driving in Massachusetts

Defending the Rhode Island Licensee Charged with Drunk Driving in Massachusetts ROBERT H. HUMPHREY, ESQ.

RICHARD S. HUMPHREY, ESQ.Robert and Richard Humphrey practice at the Law Offices of Richard H. Humphrey in Tiverton.

As the result of the relatively small size of Rhode Island and the convenient proximity of the Commonwealth of Massachusetts, many Rhode Island attorneys have the opportunity to practice law in both court systems. As the public, the press, and the legislatures in both states continue to strive for more stringent drunk driving laws, police departments in both states are diligently apprehending drunk driving suspects. This in turn creates opportunities for attorneys who primarily practice in Rhode Island to experience the Massachusetts court system in the defense of Rhode Island citizens apprehended in Massachusetts. This article will review certain relevant Rhode Island and Massachusetts statutes and cases to highlight some of the similarities, differences, defenses and nuances to be considered while defending a Rhode Island licensee charged with operating a motor vehicle under the influence of liquor (OUI) in Massachusetts.

1. THE CRIME DEFINED

   Rhode Island General Laws (R.I. Gen. Laws) 31-27-2 states, "[w]hoever operates or otherwise drives any vehicle in the state while under the influence of any intoxicating liquor shall be guilty of a violation or a misdemeanor..."

   Massachusetts General Laws Chapter (M.G.L.c.) 90, § 24 states "[w]hoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle while under the influence of intoxicating liquor...shall be punished..."

   Therefore, the prosecution in both states has the burden of proving, beyond a reasonable doubt, the three separate and distinct elements as follows:

   1. -the defendant was operating a motor vehicle;

   2. - -in the State of Rhode Island or upon a public way in the Commonwealth of Massachusetts;

   3. -while under the influence of intoxicating liquor.

2. OPERATION

   In both states there has been a considerable amount of case law concerning the issue of operation of a motor vehicle. The preeminent case concerning the issue of operation in Rhode Island is State v. Capuano.(fn1) In Capuano, the Rhode Island Supreme Court held that the defendant had not operated a motor vehicle while under the influence, because at the time of apprehension, he was merely sitting astride an idling motorcycle with the kickstand up.(fn2) The Court went on to state that R.I. Gen. Laws § 31-27-2 is a penal statute, and "must be strictly construed in favor of the party upon whom [the] penalty is to be imposed."(fn3) Therefore, the Court held that despite the fact that the defendant was intoxicated and in possession of a motor vehicle, under strict construction, he did not drive or operate a vehicle.(fn4)

   In the more recent case of State v. Perry,(fn5) the Rhode Island Supreme Court had the opportunity to review the issue of operation under the separate refusal to submit to a chemical test statute.(fn6) The Perry Court held that the arresting officer had reasonable suspicion to believe that the defendant had operated a motor vehicle, while under the influence of intoxicating liquor, even though the arresting officer never observed the defendant actually operating the vehicle. Furthermore, the Court held that:

   -the facts of this case are distinguishable from the facts of Capuano...the Capuano case involved a conviction for driving a motor vehicle under the influence of intoxicating liquor. Consequently, his operation of a motor vehicle was required to be proven beyond a reasonable doubt. Although the defendant was observed sitting on a motorcycle, he was not observed operating the motorcycle while in motion. In the case at bar, we deal with a separate statute that authorizes a police officer to direct a suspect to submit to a breathalyzer test if the officer has "reasonable grounds" to believe that such person has been driving a motor vehicle within this state while under the influence of intoxicating liquor.(fn7)

   Massachusetts Instruction 3.06 of Model Jury Instructions cites as authority Commonwealth v. Ginnetti,(fn8) and states the following:

   -[a] person "operates" a motor vehicle not only while doing all of the well-known and easily recognized things that drivers do as they travel on a street or highway, but also when doing any act which directly tends to set a vehicle in motion. The law is that a person is "operating" the motor vehicle whenever he or she manipulates some mechanical or electrical part of the vehicle - like the ignition or the gear shaft - which, alone or in sequence, will set the vehicle in motion.(fn9)

   However, the Court's broad interpretation of operation in Ginnetti can be contrasted to the holding in Commonwealth v. Plowman.(fn10) In Plowman, the Appeals Court held that the defendant had not operated a motor vehicle while under the influence, because "sleeping in the driver's seat of a parked vehicle, with the keys in the ignition and the engine running, does not constitute 'operating' a motor vehicle for the purpose of the OUI statute..."(fn11)

   Frequently the issue of operation becomes crucial in cases where a person is behind the wheel but the vehicle is not moving or in the case of a one vehicle accident. In Commonwealth v. Leonard,(fn12) the Supreme Judicial Court applied the long-standing evidentiary rule that a confession to a crime must be supported with independent corroboration. Therefore, the Court held that although the defendant was impaired and engaged in an argument with his wife while standing outside of his vehicle on the side of the road and admitted that he was the operator, his admission was not supported with sufficient corroborative evidence to support his conviction. In Rhode Island, the mere fact that a person admits to driving is normally not enough. The state must establish prima facie proof of the corpus delicti prior to the defendant's admission being admitted into evidence at trial.(fn13)

3. OPERATION WITHIN THE STATE OR UPON A PUBLIC WAY

   Proof of operation within the State of Rhode Island(fn14) or upon a public way(fn15) in the Commonwealth of Massachusetts is usually an easy element for the prosecution to prove. However, defense counsel should be wary of stipulating to any element necessary to be proven by the prosecution.

4. RHODE ISLAND EXTRATERRITORIAL WARRANTLESS ARRESTS

   Often the question which arises is not whether the defendant operated a motor vehicle within the state or upon a public way, but rather did the arresting officer have the authority to apprehend the defendant in another jurisdiction. R.I. Gen. Laws § 12-7-19 refers to close pursuit by a Rhode Island officer and states the following:

   -Arrest after close pursuit by officers from cities or towns. - Any member of a duly organized municipal peace unit of another city or town of the state who enters any city or town in close pursuit, and continues within any city or town in such close pursuit, of a person in order to arrest him or her on the grounds that he or she had violated the motor vehicle code in the other city or town, shall have the same authority to arrest and hold in custody the person as members of a duly organized municipal peace unit of any city or town have, to arrest and hold in custody a person on the grounds that he or she violated the motor vehicle code in any city or town.

   The intent of R.I. Gen. Laws § 12-7-19 is to allow police officers from one Rhode Island community to enter into another Rhode Island community if in close pursuit of a suspect for an arrestable offense.(fn16) The intent of the statute has been upheld in the recent case of State v. Kinder.(fn17) The statute does not grant Rhode Island police officers authority to cross over the territorial boundaries of the state for the purpose of conducting a warrantless misdemeanor arrest. Therefore, Rhode Island police officers are not empowered to pursue a suspected drunk driver into another state to conduct a warrantless misdemeanor arrest.

   In State v. Baton,(fn18) the Rhode Island Supreme Court had the opportunity to review the arrest of a defendant in Connecticut by the Rhode Island State Police. The Court determined that the arrest was legal because the arrest "was made under the aegis of a local police officer who had probable cause to arrest the defendant because he had knowledge of the arrest warrant issued by the Rhode Island District Court..."(fn19) The Court went on to state that even if the Rhode Island State Police "had acted unilaterally, the arrest was legal because the officer, acting as a private person in Connecticut who had probable cause to believe the arrestee had committed a felony, had the right to make an arrest."(fn20)

5. MASSACHUSETTS EXTRATERRITORIAL WARRANTLESS ARRESTS

   M.G.L.c. 41, § 98A refers to fresh pursuit by a Massachusetts officer and states the following:

   -Arrest on fresh and continued pursuit. A police officer of a city or town who is empowered to make arrests within a city or town may, on fresh and continued pursuit, exercise such authority in any other city or town for any offense committed in his presence within his jurisdiction for which he...