Where a defendant has been convicted of operating under the influence of intoxicating liquor, G.L.c. 90, S24(1)(a)(1), and negligent operation of a motor vehicle, G.L.c 90, S24(2)(a), the convictions should be affirmed because (1) a resort parking lot on which the defendant was driving constituted a "public way or place" and (2) the evidence of the defendant's physical characteristics, belligerent behavior and erratic driving was sufficient to show the defendant's impairment and negligent operation.
"...We conclude that a parking lot that members of the public may use to visit a restaurant, bar, shop, and beach, all open to the public, is a public way or place...
"The Sea Crest Beach Hotel is a resort in North Falmouth consisting of nine buildings, including a hotel, a restaurant, a bar, a retail shop, and a public beach. The restaurant, bar, shop, and beach are open to the public...
"To prove either the crime of operating under the influenene or negligent operation, the Commonwealth must prove that the defendant operated a motor vehicle upon a public way or place...
"Here, the facts viewed in the light most favorable to the Commonwealth established a public place, because members of the public were permitted to access the parking lot. The evidence established that members of the public who were not staying at the hotel were permitted to use the parking lot to visit the restaurant, bar, shop, or beach. At the time of the incident, the restaurant and bar were opened to the public...
"The existence of a gatehouse does not negate the public nature of the parking lot. The gatehouse was unattended at the time of the incident, but even an attended gatehouse would not make a parking lot nun-public where, as here, members of the public are routinely permitted to drive by the gatehouse and park in the the parking lot.
"At the time of the incident, the signs restricting parking to hotel guests and beach club membes were not on display. At night, the availability of parking was not an issue and thus there were no restrictions. In any event, the defendant's focus on parking is misplaced. A public place is not a place the public is allowed to park, but rather a place that the public is allowed to travel. So long as the public is allowed to access the place, even merely to drop off a passenger, it is a public place...
"As in (Commonwealth v. Brown, 51 Mass. App. Ct. 702 (2001), the parking lot of the Sea Crest Hotel was similarly accessible to members of the public wishing to use the parking lot to visit the restaurant, bar, shop, or beach. No restriictive signage indicated that the property was closed to the public at the time of the incident. Moreover, the signs placed during the day on busy weekends restricted only parking, not access. Accordingly, the trial judge heard sufficient evidence to reasonably conclude that the parking lot in which the defendant drove was a public place."
