Com. v. Otmishi
| Decision Date | 15 July 1986 |
| Citation | 398 Mass. 69,494 N.E.2d 1350 |
| Parties | COMMONWEALTH v. Ebrahim OTMISHI. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John E. Conwell, Boston (Barbara Bogasian, with him), for defendant.
Ann E. Rascati, Asst. Dist. Atty. (Pamela Droukas, Asst. Dist. Atty., with her), for Com.
Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and LYNCH, JJ.
Ebrahim Otmishi was convicted by a judge of the Hingham District Court of operating a motor vehicle while under the influence of intoxicating liquor. G.L. c. 90, § 24(1)(a )(1) (1984 ed.). His conviction arose from the following incident. About 6:05 A.M. Thanksgiving Day, 1983, a Scituate police officer came upon an automobile parked at an angle with its motor running and headlights on, approximately six feet away from the curb on Grasshopper Lane. The officer saw Otmishi sitting in the driver's seat with his eyes closed. For two to three minutes, the police officer pounded on the window and yelled to get Otmishi's attention. When Otmishi rolled down the window, the officer asked him what he was doing parked in the middle of the road. Otmishi answered that he was resting and that he believed he was in a driveway. The officer asked him where he had come from. Otmishi replied that he had come from the Gannet Bar and that he had been visiting someone in Scituate. The police officer noticed a strong odor of alcohol on Otmishi's breath, and noticed that his eyes were glassy and bloodshot and his speech was slurred. He arrested Otmishi and took him to the police station. There Otmishi was given a breathalyzer test which showed a blood-alcohol concentration of 0.13%.
Otmishi has appealed from the denial of his motion for a required finding of not guilty made at the close of the Commonwealth's case. In his appeal, Otmishi raises three arguments: (1) sleeping in the driver's seat of an automobile cannot be considered "operation" of a motor vehicle; (2) expanding the meaning of the term "operation" in the statute to include sleeping in the driver's seat would deprive the defendant of his constitutional right to adequate notice of what conduct is illegal; and (3) public policy considerations dictate that an intoxicated motorist not be punished for choosing to stop his automobile and sleep, rather than attempting to proceed.
We need not address either of Otmishi's arguments as to the proper construction of the term "operation," 1 for we believe the circumstantial evidence to have been sufficient to permit the judge to infer that Otmishi in fact drove the automobile to its location on Grasshopper Lane while intoxicated. In a similar case decided this day, we held that an intoxicated person who had driven an automobile that was found parked awry, where the evidence warranted a finding that she had not become intoxicated after parking the automobile, might be convicted of operating a motor vehicle while intoxicated. Commonwealth v. Hilton, 398 Mass. 63, 494 N.E.2d 1347 (1986). The Commonwealth's case against Otmishi is even stronger. Otmishi said that he had come from a bar some distance away. He was alone in the automobile. It was reasonable to infer that he admitted having driven the automobile. The manner in which the automobile was parked, askew in the street, several feet from the curb, lights on and motor running, together with the defendant's intoxication at the time of...
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...their vehicles, except as passengers." State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977), quoted with approval in Commonwealth v. Otmishi, 398 Mass. 69, 72, 494 N.E.2d 1350 (1986). The thrust of the Uski decision is that the public hazard contemplated by G.L. c. 90, § 24, extends beyond intox......
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