Commonwealth v. Faherty (Lawyers Weekly No. 11-043-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-1486 Appeals Court COMMONWEALTH vs. KEVIN J. FAHERTY. No. 16-P-1486. Middlesex. December 8, 2017. – April 11, 2018. Present: Sacks, Ditkoff, & Singh, JJ. Motor Vehicle, Operating under the influence. Evidence, Prior conviction, Intoxication, Blood alcohol test. Practice, Criminal, Prior conviction, Assistance of counsel, Sentence, Required finding. Constitutional Law, Assistance of counsel. Due Process of Law, Assistance of counsel, Blood alcohol test. Intoxication. Complaint received and sworn to in the Woburn Division of the District Court Department on December 14, 2015. The case was tried before David E. Frank, J. Tasha Kates for the defendant. Gabriel Pell, Assistant District Attorney, for the Commonwealth. DITKOFF, J. A District Court jury convicted the defendant, Kevin J. Faherty, of operating under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1). At a subsequent jury-waived trial, a District Court judge convicted the defendant as a fourth offender. We are faced with the question whether a subsequent offense may be based on a prior conviction for which the defendant was not entitled to (and presumably did not receive) appointed counsel because the prior offense carried no risk of incarceration. Concluding that it may be, and rejecting the defendant’s challenge to the sufficiency of the evidence, we affirm. Background. At approximately 2:30 P.M. on July 4, 2015, the defendant was injured while riding his motorcycle on Pond Street in Stoneham. A Massachusetts State trooper at the scene of the accident noticed a strong odor of alcohol and later discovered four unopened nip bottles of Jim Beam bourbon in the defendant’s saddle bag. The defendant was transported to a hospital. Hospital records recorded that the defendant’s serum alcohol level was 359 milligrams per deciliter. An expert from the Office of Alcohol Testing at the Massachusetts State Police Crime Laboratory testified that this was the equivalent of a blood alcohol level of between .30 percent and .32 percent. The defendant testified that the accident was caused by his hitting something in the road while momentarily distracted. He testified that he did not drink any alcohol prior to the accident but decided to drink six nip bottles of bourbon to dull the pain while waiting for medical assistance. The jury convicted the defendant on both a theory of impairment and a theory of having a […]