Commonwealth v. Virgilio

(dissenting). My colleagues have composed a characteristically thorough survey of the case law. However, I must respectfully decline to join in its application to the undisputed facts presented by this appeal. In my view, this case harbors a significant issue of first impression: 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 Commonwealth’s primary statute prohibiting driving impaired by alcohol. G. L. c. 90, § 24(l)(a)(l). None of the cited precedents has addressed that categorical question.1 It lies open for analysis. The language of the statute permits its application to such places; *576and its public safety purpose powerfully commends the coverage of those places by the act. The contrary interpretation artificially partitions the field of danger created by the impaired driver.

Factual background. Some elaboration of the facts is useful. In addition to testimony, the undisputed evidence at trial included two photographic exhibits depicting the scene of the collision. They show two residential buildings set back from a main road. The defendant’s single-unit cottage is situated to the left; a two-story, two-unit building is located at the right. The two structures face inward toward each other with their sides toward the main road.

The main road has no sidewalks. A paved wide-mouthed entryway (accommodating two to three car widths) leads directly from the main road, expands to form an apron of about six car widths between the structures, and then enlarges further toward the rear and diagonally behind the buildings. The breadth of the rear apron between and behind the dwellings would accommodate six to eight parked vehicles. No barriers or signs appear at the mouth of the entryway or at any point in the apron. No markings designate or separate any portion of the entire paved area. Four mailboxes stand on the main road to the left of the entryway. Practicably, any visitor by motor vehicle to any of the *577residential units would drive through the entryway and park at the rear of the apron.

At trial it was undisputed that all the tenants within the two buildings had access to the driveway and parking area and that none of them could restrict access to those places. It was undisputed also that the defendant had driven her automobile into the side of the parked car of a resident of the two-unit building. The defendant failed field sobriety tests administered by the responding police officer. She failed also a subsequent breathalyzer test. Before trial she stipulated to operation under the influence of alcohol. The sole issue at trial was the nature of the location of that operation. Consequently the breathalyzer reading did not come into evidence. In the course of sentencing, the trial judge described it as “extremely high.”

The judge imposed a sixty-day license suspension and ordered the defendant to complete a fourteen-day inpatient program and thereafter a period of supervised probation to include attendance at ninety Alcoholics Anonymous meetings. Successful completion of her probationary program would make her eligible for dismissal of the criminal charge. G. L. c. 90, §§ 24D, 24E.

Analysis. Our case turns on the meaning of the statutory clause, “Whoever, 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.” G. L. c. 90, § 24(l)(a)(l), as appearing in St. 1994, c. 25, § 3. For the following reasons I conclude that the intoxicated defendant collided with her neighbor’s car “in [a] place to which members of the public have access as invitees or licensees.” Three methods of construction lead me to that conclusion, all of them approved as traditional guidance: the language of the provision; the cause or occasion for its enactment; and the discoverable legislative intent or purpose.2

*5781. Literal analysis. We are dealing with a “place” and not a “way” because the common area apron does not constitute an artery of traffic. The clause refers to two places: “any place to which the public has a right of access” and “any place to which members of the public have access as invitees or licensees.” We give effect to each substantive term and typically treat none as superfluous. Baystate Med. Center v. Blue Cross of Mass., Inc., 382 Mass. 485, 491 (1981). Commonwealth v. Shea, 46 Mass. App. Ct. 196, 197 (1999), and cases cited. Consequently we have two different categories of “place.” The word “any” modifies each and indicates comprehensive categories. The first designates broadly locations to which the public at large has a right of access. The second designates more specifically locations to which “members” within the public have access not by right but by invitation or permission. The word “members” denotes a class smaller than the general public. The assimilated common-law concepts of invitee and licensee will receive their usual meanings. See Commonwealth v. Olivo, 369 Mass. 62, 67 (1975), and cases cited (common-law terms appearing in criminal statutes retain their common-law definitions).

Upon those terms, an individual member of the public specifically invited or permitted to drive onto the apron by the owner or by a tenant of the residential buildings here falls within the operation of the clause. Nothing in the language of the clause indicates that a specific invitee or licensee, as distinguished from a random invitee or licensee, no longer qualifies as a “member[] of the public.”3 As I propose below, much of the purpose of the statute contradicts that assumption.

*5792. The cause and occasion of enactment. In Commonwealth v. Paccia, 338 Mass. 4, 6 (1958), the court concluded that a privately owned paved area surrounding a restaurant and a market building and connecting two public ways, and admittedly the location of the defendant’s impaired driving, did not qualify under the existing language of the statute as “a place to which the public has a right of access.” The reasoning was

“that the Legislature has not included within the scope of § 24 privately owned places, not shown to be subject to any general public easement of right. Criminal laws are to be strictly construed and are not to be extended merely by implication. ... If the Legislature had wished to include areas like [the place at issue], to which members of the public have access only as business invitees or licensees, within the penal prohibitions of § 24, it would have been appropriate for it to have made a clear and specific provision to this effect.”

Three years later the Legislature answered by addition of the current second phrase, “or upon any way or in any place to which members of the public have access as invitees or licensees.” St. 1961, c. 347.4 Significantly the Legislature did not use the limiting phrase suggested by the court, “business invitees or licensees” (emphasis supplied). Instead it employed the unmodified phrase, “invitees or licensees.” At Massachusetts common law that phrase encompasses both business and social visitors. See Mounsey v. Ellard, 363 Mass. 693, 704-706 (1973) and cases cited. “And if a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.” Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947). See Commonwealth v. Olivo, supra. The Legislature’s use of “invitees or licensees” was an expansive reaction to the limiting rationale of the Paccia decision. The amended statute includes places of both commercial and residential character. It *580applies to places both public and privately owned. See note 1, supra. The purpose of the presence of the endangered person or of his or her connection to the place bears no rational relationship to the culpability of the impaired driver or the vulnerability of the potential victim. The law’s concern is the range of openness and the resulting degree of danger at the place of impaired operation.

3. Legislative purpose. The context of critical words will typically bring their purpose into sharper focus. “There is need to keep in view also the structure of the statute, and the relation, physical and logical, between its several parts.” Duparquet Co. v. Evans, 297 U.S. 216, 218 (1936) (Cardozo, J.). See Commonwealth v. Baker, 368 Mass. 58, 68 (1975) (relating the disputed terms to “the associated words and phrases in the statutory context”); Negron v. Gordon, 373 Mass. 199, 201 (1977) (examining “other parts of the statute” to determine its “general meaning and object”), quoting from Holbrook v. Hol-brook, 1 Pick. 248, 250 (1823); Commonwealth v. Hampe, 419 Mass. 514, 518-520 (1995) (surveying the “statutory scheme” of which the contested provision was a part).

a. Danger or mischief to be remedied. For decades Massachusetts decisions in various settings have emphasized the lethal risk of impaired driving. See, e.g., Commonwealth v. Brooks, 366 Mass. 423, 425-426 (1974):

“In this century the automobile has become a major implement of life and death. . . . Periodic empirical studies have confirmed the intuitively obvious: persons who drive while under the influence are likely to kill or injure themselves or others. A three year study (1963-1965) of 100 single car fatalities conducted by the Massachusetts State Division of Alcoholism, for example, revealed that over seventy-five per cent of the dead drivers had been drinking. See 1968 Senate Doc. No. 980.”

See also, e.g., Irwin v. Ware, 392 Mass. 745, 756 (1984) (applying the Massachusetts Tort Claims Act, G. L. c. 258, § 2; “the threat [of intoxicated driving] is immediate; it threatens serious physical injury”; those endangered have “no chance to protect themselves”); Commonwealth v. Blais, 428 Mass. 294, 298 *581(1998) (“A drunk driver let loose on the highways is a deadly menace ... to anyone sharing the highways with him”); Commonwealth v. Fortune, 57 Mass. App. Ct. 923, 924 (2003) (“Police officers have a duty to investigate citizen reports of criminal activity, particularly if the conduct implicates the safety of the public, as drunk driving does”); Commonwealth v. Davis, 63 Mass. App. Ct. 88, 91 (2005) (driving under the influence poses an extreme danger to the public).

Recidivism multiplies the peril of impaired driving. The addictive nature of alcoholism and the habitual character of abusive social drinking have received legislative recognition in a scheme of progressive sanctions. Within G. L. c. 90, § 24(l)(a)(l), the Legislature prescribes graduated punishments (fines, incarceration, and mandatory commitments) for second, third, and fourth or more convictions or assignments to education, treatment, or rehabilitation programs. Id. at first, fourth, fifth, sixth and seventh pars.

The legislative response, developed over decades (often after episodic tragedies) and codified in G. L. c. 90, § 24(1) through (4), and adjoining provisions, has accumulated an array of measures aimed at the criminal law’s objectives5 of deterrence, incapacitation,6 and reformation7 of the perpetrator.

b. Deterrence. “The purpose of G. L. c. 90, § 24, is to . . . *582‘deter individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.’ ” Commonwealth v. McGillivary, 78 Mass. App. Ct. 644, 647 (2011), quoting from Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 320-321 (1994). See Commonwealth v. Ginnetti, 400 Mass. 181, 184 (1987).

The words of § 24(l)(a)(l) establish three components of the offense of operating under the influence (OUI): operation of a motor vehicle; impairment by intoxicating liquor; and location accessible to members of the public. The case law has defined operation inclusively. It can extend to any intentional action by an occupant using a mechanical or electrical means that alone, or in sequence, will set in motion “the motive power” of the vehicle. Commonwealth v. Uski, 263 Mass. 22, 24 (1928). See Commonwealth v. Merry, 453 Mass. 653, 661 (2009), and cases cited; Commonwealth v. Sudderth, 37 Mass. App. Ct. at 319. Operation can occur even if the vehicle is motionless or the engine turned off. Commonwealth v. Clarke, 254 Mass. 566, 568 (1926) (defendant merely shifted gears). It is enough for the impaired defendant to have inserted the ignition key and turned it to the “on” position even without activation of the engine. Commonwealth v. McGillivary, 78 Mass. App. Ct. at 646.

The expansive meaning given to the concept of operation reflects the legislative purpose. “Given the well-established relationship between intoxicating liquor and motor vehicle injuries and fatalities [citations omitted], it does no violence to G. L. c. 90, § 24, to conclude that the real purpose of such statutes” is deterrence of the very entry onto the driver’s seat of the impaired operator. Commonwealth v. Sudderth, supra at 320-321. Accord Commonwealth v. McGillivary, supra at 646-647.

c. Lenity. While the purpose of deterrence has characterized the interpretation of the element of operation of the vehicle, a rule of lenity has accompanied the interpretation of the location of its operation. The ambivalent development of the case law has resulted in a seemingly incongruous treatment of the act’s *583purpose of public safety: a stringent definition of operation but a lenient definition of the location of the impaired operation.8 Even after the Legislature’s response to the Paccia decision in 1961, the court applied the principle of strict construction for the benefit of the accused, or lenity, to the issue of location. It viewed the amended language to refer primarily to “public parking lots or chain store parking lots.” Commonwealth v. Callahan, 405 Mass. 200, 205 (1989).

For multiple reasons, a rule of lenity should have limited application to the definition of a “place” within the meaning of § 24(l)(o)(l) and to similar provisions employing the same words to proscribe operating under the influence. First, the rule of lenity operates against ambiguous statutory language depriving an accused of fair warning of punishable conduct. Commonwealth v. Ryan, 79 Mass. App. Ct. 179, 185-186 (2011). A modem automobile driver does not need more specific notice than the words of the current statutes. Getting behind the wheel in a state of impairment has the character of conduct malum in se. Certainly one could not reason that the defendant in this case would have driven more responsibly if only the statute had provided her a more precise definition of a publicly accessible place.

Second, the incidence of recidivism militates against the delayed identification of the impaired driver. His avoidance of sanction by reason of the less publicly, but still sufficiently publicly, accessible location of operation will delay both deterrence and rehabilitation and prolong the exposure of the public to repeated danger.

Finally, the courts and the Legislature have already created available measures of leniency for defendants undertaking genuine efforts of reform. A judge may order a continuance without a finding conditioned upon successful completion of an educational or treatment program, see G. L. c. 90, § 24(l)(o)(l), eighth par.; Commonwealth v. Quispe, 433 Mass. 508, 510-512 (2001), or order probationary periods encompassing treatment *584programs and interim loss of license, and enabling subsequent dismissal of charges upon successful completion of probation. See G. L. c. 90, §§ 24(4), 24D, 24E. Indeed, in this case, the judge employed a blend of moderate probationary sanctions for a first offense, comprised of a sixty-day license suspension, a fourteen-day inpatient program, and attendance at Alcoholics Anonymous meetings. Successful completion of probation would make the defendant eligible for discretionary dismissal of the original charge of GUI. See G. L. c. 90, § 24E, first and fifth pars.

The rule of lenity “is a guide for resolving ambiguity, rather than a rigid requirement that we interpret each statute in the manner most favorable to defendants.” Simon v. Solomon, 385 Mass. 91, 102-103 (1982) (Hennessy, C.J.). To the same effect, see Commonwealth v. Roucoulet, 413 Mass. 647, 652-653 (1992). In short, the culpability of the conduct, the gravity of its danger, the risk of recidivism, and the array of calibrated sanctions available from the Legislature and the trial judge’s sound discretion support the earliest possible identification of the offending driver. A grudging definition of the location of impaired driving obstructs that identification. The rule of lenity toward the impaired driver should not become a policy of laxity toward the public safety.

4. Flawed premises. From this view of the statute, several premises of the “place” decisions relied upon by my colleagues operate improbably and should reach a rational boundary line in this case. The first and most fundamental flawed premise is that specific invitees and licensees to the place of a common entryway and parking area do not constitute “members of the public.”9 Such an exclusion by the Legislature is unlikely. No doubt exists that an invitee or licensee several yards away on a main road qualifies as a member of the public. No sound *585reason indicates that the social guest, the deliveryman, or the visiting nurse should lose the status of a member of the public at the instant when he or she turns from the roadway into the entryway and parking area of the several residences here. Their safety is no less valuable from the one moment to the next.

The rationale may be that the impaired driver cannot fairly expect to encounter members of the public in the common area. The defendant is not entitled to that expectation. The common character of the driving and parking area negates it.10 It is a place of reasonably foreseeable multiple drivers, both residents and their visitors. It is not unfair or surprising for the law to require the defendant to regard their safety. The character of public access would be more obvious and less disputable if we were addressing the common entryway and parking areas of a condominium complex of several multi-unit buildings or of a garden apartment building. Nonetheless the common driveway, apron, and parking spaces of the two buildings and three units here fall on one side of a principled distinction: they are a place in which multiple operators will lawfully and foreseeably drive their vehicles by invitation or permission beyond the control and prediction of the defendant. That place falls within the concern of the statute. The visible concern is the range of access and therefore the degree of danger generated there by the impaired driver toward persons lawfully present.

Finally, the contrary view accepts the questionable notion of private enclaves of driving reliably separate from public areas. Few such places would seem to exist. Few impaired drivers will be able to operate their vehicles with discriminating choice between public and private locations. Their mental state and the interconnection of roadways belie the idea of harmless impaired driving in private locales. Here the apron site of the accident fed directly into a public roadway. The defendant was inferably driving to or from the road. She was yards and seconds away from it when she collided with her neighbor’s car. The spot of the accident was a fortuity, and not a place of purposeful legis*586lative exemption from irresponsible behavior. Its adjacency to a main roadway supports its character as a place of public access within the reach of the statute’s public safety concern.

Conclusion. The accessible common area at issue here falls within the letter and purpose of the law against driving under the influence of intoxicating liquor. The statute is concerned with the probable aggregation of persons and not with the mechanical classification of places. The latter emphasis in the case law appears to be a residue of an unsuited rule of lenity already rejected by the Legislature. I would affirm the judgment of guilt and the resulting sentence.11