Commonwealth v. Soule

• Docket Number: 22-P-1261
• Decision Date: 27 December 2023
• Parties: COMMONWEALTH v. JENNIFER L. SOULE.
• Court: Appeals Court of Massachusetts

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COMMONWEALTH
v.
JENNIFER L. SOULE.

No. 22-P-1261

Appeals Court of Massachusetts

December 27, 2023

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

Vuono, Meade & Walsh, JJ. ^[6]

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury-waived trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of narcotic drugs, in violation of G. L. c. 90, § 24 (1) (a) (1).^[1] On appeal, she claims that her motion for a required finding of not guilty should have been allowed because there was no evidence from which a rational trier of fact could have found beyond a reasonable doubt that she was under the

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influence of a narcotic drug as defined by G. L. c. 94C, § 1 (§ 1). We agree and reverse the judgment of conviction.

Background.

We summarize the facts as the judge could have found them, in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). At approximately 6:30 P.M., on January 7, 2020, Sergeant Patrick Mortimer of the Lancaster Police Department received a dispatch regarding the erratic operation of a motor vehicle on Route 117 and proceeded to that location. By the time he arrived, the vehicle in question had crossed over the marked divider into oncoming traffic and collided with another car. Sergeant Mortimer approached and spoke with the driver, subsequently identified as the defendant, who was outside of her car inspecting the damage. Sergeant Mortimer testified that the defendant "was acting very erratically. She was speaking very slowly and walking very slowly, then all of a sudden she was speaking very rapidly." The defendant began to walk quickly around her car to the point where Sergeant Mortimer became concerned that she might be hit by another vehicle. Sergeant Mortimer asked the defendant what happened, to which she responded that "she was driving home from work and her dog jumped into her lap, causing her to swerve." Sergeant Mortimer then asked if she was using any drugs. The defendant replied that she took Suboxone that morning and that she had a

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prescription for it. Thereafter, the defendant agreed to participate in some roadside assessments, which she could not complete to Sergeant Mortimer's satisfaction. The defendant was arrested and transported to the police station. The police subsequently found numerous pill bottles in the defendant's car and purse. Sergeant Mortimer believed that Suboxone was also found in the car; the Suboxone was returned to the defendant because she had a prescription for it.^[2]

Discussion.

The statutory crime of operating a motor vehicle while under the influence of narcotic drugs "does not criminalize operation under the influence of all narcotics, stimulants, or depressants, but only those 'defined in section one of chapter ninety-four C.' Absent proof that the defendant's operation was impaired by a drug, depressant, or stimulant that is among those so defined, no statutory violation arises." Commonwealth v. Ferola, 72 Mass.App.Ct. 170, 170 (2008), quoting G. L. c. 90, § 24 (1) (a) (1).

As an initial matter, we note that the defendant agrees that the evidence was sufficient to warrant a finding that she operated a motor vehicle on a public way and that her ability to operate the vehicle was impaired. Her sole contention on appeal

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is that because there was no evidence that Suboxone, the substance she ingested, qualified as a prohibited substance under § 1, there could be no violation and, consequently, the judge erred when he denied her motion for a required...