Criminal law - failed the breathalyzer? Just contest the location of the stop - Commonwealth v. Virgilio, 947 N.E.2d 1112 (Mass. App. Ct. 2011).

• Author: Ketcham, Jillise

In Massachusetts, the criminal act of driving under the influence of an intoxicating liquor or controlled substance is governed by Massachusetts General Laws Chapter 90, [section] 24(1)(a)(1) (the "Massachusetts OUI Statute"). (1) In Commonwealth v. Virgilio, (2) the Massachusetts Appeals Court considered whether the common area entryways and parking zones of multiple unit residential buildings constitute "any place to which members of the public have access as invitees or licensees" within the meaning of the Massachusetts OUI Statute. (3) The court determined that members of the public would neither deem the driveway and conjoining parking lot as anything other than a private driveway nor infer that public use is invited and, therefore, it is not a place to which members of the public have access as invitees or licensees as provided by the governing statutory language. (4)

On May 16, 2009, Lisa Virgilio, while intoxicated, got into her car and backed into the side of her neighbor's car. (5) At the time, Virgilio was residing in a single family cottage located adjacent to the two-story, two-family dwelling where the owner of the other vehicle in the accident resided. (6) The incident occurred in a parking area located behind the two residences. (7) The parking area extended from a paved driveway traveling between the two residences stemming from a wide-mouthed entryway leading from the main road. (8)

All occupants of the two properties had access to the driveway and parking area and none of the residents could restrict access. (9) Additionally, there were no barriers or signs at the mouth of the entryway, nor were there any markings or partitions which separated any of the paved area spanning from the entryway from the main road through the parking area. (10) Any visitors travelling by motor vehicle seeking to visit the occupants of either building would drive through the entryway and park in the area located behind the residences. (11)

At trial, the sole issue was whether the location in which Virgilio was operating her motor vehicle was a "way or. . .place to which members of the public have access as invitees or licensees." (12) The trial judge denied Virgilio's motion for a required finding of not guilty and convicted her of operating a motor vehicle under the influence of intoxicating liquor. (13) Virgilio appealed this conviction, claiming the place on which she was operating her vehicle was not a way or place to which members of the public have access as invitees or licensees and, therefore, was not within the reach of the Massachusetts OUI Statute. (14) On appeal, the Massachusetts Appeals Court reversed Virgilio's conviction, finding that relevant case law had not extended the governing statute's reach to all places in which an operator may have physical access. (15) Furthermore, the court found that the lower court should have allowed Virgilio's motion for a required finding of not guilty because members of the public could not conclude the area was open to them for travel as invitees or licensees. (16)

Under its original language, the Massachusetts OUI Statute applied only to operation of a motor vehicle while under the influence "upon any way or in any place to which the public has a right of access." (17) The legislature enacted this original version of the statute to protect those traveling upon highways and it was not intended to criminalize operating a motor vehicle while intoxicated in all places within the Commonwealth. (18) The Massachusetts Supreme Judicial Court ("SJC") interpreted this language of the statute to include only public ways or ways in which the general public held an easement, not privately owned places used by the general public solely as licensees or business invitees. (19)

Responding to the SJC's interpretation of this language, the legislature amended the statute in 1961 to add "any place to which members of the public have access as invitees or licensees." (20) The purpose behind the statute is to address the dangerous risk of impaired driving while attempting to remedy the situation through deterrence, incapacitation, and reformation of the offender. (21) While the case law has not extended the statute's reach to all places that an operator may have physical access, the 1961 revision expanded the scope of the statute to include a greater number of possible offenders, and it illustrated the legislature's intent to further the underlying public safety concern inherent in the statute. (22)

When assessing whether a particular private way is encompassed under the revised statute, it is the status of the way, not the status of the driver, which is controlling. (23) Consequently, an impaired driver can be charged under the statute even if that driver does not have a specific license or invitation to be traveling on the way. (24) The operative test is whether the invitation or license is one that extends--or appears, from the character of the way, to extend--to the general public. (25)

In Commonwealth v. Virgilio, the Massachusetts Appeals Court considered whether the common area entryways and parking zones of multiple unit residential buildings constitute "any place to which members of the public have access as invitees or licensees" within the meaning of the Massachusetts OUI Statute. (26) The court applied the test set forth in Commonwealth v. Stoddard (27) in determining whether the way fell within the bounds of the statute: "if the invitation or license is one that extends (or appears, from the character of the way, to extend) to the general public, the way is covered." (28) In applying this test, the court determined that the physical accessibility of the driveway and parking area by occupants of two residential buildings was not enough to bring the way under the statute's reach. (29) The court then concluded that members of the public could not reasonably believe that the driveway was open to them for travel as invitees or licensees. (30)

In Commonwealth v. Virgilio, the Massachusetts Appeals Court incorrectly determined that the area in which Virgilio was operating her motor vehicle was not a way or place as provided by the Massachusetts OUI Statute. (31) In its analysis, the majority employed strict statutory interpretation and surveyed existing precedent, failing to recognize that the question presented before...