Commonwealth v. Virgilio (May 24, 2011)
Docket No. 10 – P – 519
Appeals Court of Massachusetts.
The defendant was convicted of operating a motor vehicle under the influence of intoxicating liquor. She appeals and contends that the judge denied her motion for a required finding of not guilty and that the judge gave her an excessive sentence.
Facts: The defendant resides in a single-family cottage. Next door to her house is a two-story, two-family dwelling, in which resides the owner of the other car involved in this scenario. Between the two houses is a paved driveway that widens and ends in a parking area. Only the occupants of the two houses park in this area. There are no businesses or public services of any kind along the driveway parking area.
Issue: Whether the place on which the defendant was operating the vehicle was “public way” within the meaning of the relevant statute, G.L. c. 90, § 24(1)(a)(1).
No. Here the place in question is a private driveway and parking area that only serves two residences, containing three dwelling units in total. It neither contains nor leads to any businesses or public accommodations. There is nothing in the appearance of the driveway or parking area that would give an impression to the general public or members of thereof that it is anything other than a private driveway or that public use was invited, notwithstanding that it is neither gated nor posted. These circumstances foreclose its consideration, as matter of law, as a way or place to which the public has access as invitees or licensees. To decide otherwise would be to essentially overrule the requirement that members of the public must be able to reasonably conclude from the physical circumstances of the way that it is open for travel to invitees or licensees. Doing so would read the word “public” out of the statute or treat as superfluous this word of limitation included by the Legislature.
Judgment reversed.
Prepared by YK
