Have you or your loved one been charged with the above-reference offense? If so, call Attorney Scambio for a free consultation at 508-796-5737.
The Massachusetts Legislature defines child endangerment while OUI under Massachusetts General Law Chapter 90 Section 24V as follows:
Section 24V. (a) Whoever violates paragraph (a) of subdivision (1) of section 24, subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of subsection (b) of said section 24G, section 24L, subsection (a) of section 8 of chapter 90B, or section 8A or 8B of chapter 90B, or section 131/2 of chapter 265 with a child 14 years of age or younger in the motor vehicle or vessel shall also be guilty of child endangerment while operating a motor vehicle or vessel under the influence and shall be punished by an enhanced penalty of a fine of not less than $1,000 nor more than $5,000 and by imprisonment in the house of correction for not less than 90 days nor more than 21/2 years. If a defendant has previously violated this subsection or a like offense in another jurisdiction preceding the date of the commission of the offense for which he has been convicted, he shall be punished by a fine of not less than $5,000 nor more than $10,000 and by imprisonment in the house of correction for not less than 6 months nor more than 21/2 years or by imprisonment in state prison for not less than 3 years but not more than 5 years. The sentence of imprisonment imposed upon such person shall not be reduced to less than 6 months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served at least 6 months of such sentence but the commissioner of correction may, on the recommendation of the warden, superintendent or other person in charge of a correctional institution, or of the administrator of a county correctional institution, grant to an offender committed under this subsection a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at the institution; or to engage in employment pursuant to a work release program. A sentence imposed under this subsection shall be served consecutively to and not concurrently with the predicate violation of said paragraph (a) of subdivision (1) of section 24, subsection (a) of section 24G, subsection (b) of section 24G, section 24L, subsection (a) of section 8 of chapter 90B, or section 8A or 8B of chapter 90B, section 131/2 of chapter 265. Section 87 of chapter 276 and sections 1 to 9, inclusive, of chapter 276A shall not apply to a person charged with a violation of this subsection. Prosecutions commenced under this subsection shall not be placed on file or continued without a finding.
(b) The registrar shall suspend the license or right to operate of person who violates this section for a period of 1 year for a first offense, and for a period of 3 years for a second or subsequent violation.
The model jury instructions for use in the District Court requires the Commonwealth to prove the following in order for the Commonwealth to prove each element of the offense. The Commonwealth must prove each of the following elements beyond a reasonable doubt at trial:
First: That the defendant operated a motor vehicle;
Second: That the defendant did so (on a public way) (or) (in a place where the public has a right of access) (or) (in a place where members of the public have access as invitees or licensees); and
Third: That while the defendant was operating the vehicle, he (she) was under the influence of intoxicating liquor, and Fourth: That while the defendant was operating the vehicle, there was a child present in the vehicle who was fourteen years of age or younger.
In order to prove the defendant guilty of this offense, the Commonwealth must prove the same three elements that I have described to you on the charge of operating a motor vehicle while under the influence of alcohol. It must also prove beyond a reasonable doubt that while the defendant was operating the vehicle, there was a child who was fourteen years of age or younger present in the vehicle.
The third element which the Commonwealth must prove beyond a reasonable doubt is that the defendant was under the influence of intoxicating liquor while operating a motor vehicle. What does it mean to be “under the influence” of alcohol? It is not illegal to drive after consuming alcohol as long as the operator is not under the influence of alcohol. However, neither does someone have to be drunk to be under the influence of alcohol. A person is under the influence of alcohol if they have consumed enough alcohol to reduce their ability to operate a motor vehicle safely, by decreasing their alertness, judgment, and ability to respond promptly and effectively to unexpected emergencies. It means that a person has consumed enough alcohol to reduce their mental clarity, self-control and reflexes, and thereby left them with a reduced ability to drive safely. The Commonwealth is not required to prove that the defendant actually drove in an unsafe or erratic manner, but it is required to prove that their ability to drive safely was diminished by alcohol. The amount of alcohol necessary to do this may vary from person to person. You may rely on your experience and common sense about the effects of alcohol. You should consider any believable evidence about the defendant’s alleged consumption of alcohol, as well as the defendant’s appearance, condition, and behavior.
If you have been charged with this offense and need a trial attorney with real trial experience and trial solutions, or if you have any questions related to this criminal offense, call Attorney Scambio today at 508-796-5737. Remember, before you decide whether to make any statements to law enforcement, discuss that decision with a competent attorney. Attorney Scambio is available six (6) days a week and will take your call to discuss assisting you in your criminal matter.