OUI Appeal - Driveway Not Public Way Says Mass Court

Some states only apply drunken driving laws to 'public ways' or 'highways' or 'public places'. Massachusetts restricts their law to a way to which members of public have access as invitees or licensees. In Commonwealth v. Virgilio, --- N.E.2d ----, Mass.App.Ct. , 2011 WL 1988395 (Mass.App.Ct.) the defendants vehicle was located on the driveway that is used by only two houses to reach their respective parking places. The court found that such a driveway was not a 'public way' within the meaning of the statute, and reversed the conviction:

"In no case brought to our attention has mere physical accessibility by one operating a motor vehicle and who is not a trespasser been deemed minimally sufficient, as matter of law, to qualify as a “way or place to which members of the public have access as invitees or licensees.” G.L. c. 90, § 24(1)( a )(1). See Smithson, supra (where the court found that the characteristics of the road on a holiday weekend were not such that members of the public could reasonably infer they had an invitation to travel despite the fact the public had physical access to the road). Here, in our view, the facts beyond its physical accessibility by nontrespassers, namely, that the driveway and parking area were shared by and accessible to the occupants and guests of two residential buildings, are not sufficient to bring these places under the statute's reach. To decide otherwise would be to essentially overrule the requirement that, in cases such as this, 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, or add words to a statute beyond those the Legislature has chosen to include."

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