Com. v. Brown, 51 Mass. App. Ct. 702, 712, 748 N.E.2d 972, 980 (2001).

Facts: On June 11, 1997, shortly after midnight, the defendant was arrested by a Massachusetts State police trooper on the grounds of the Otis Air National Guard Base (air base) for operating a motor vehicle while under the influence of intoxicating liquor. The air base is located on the Massachusetts Military Reservation (reservation) on Cape Cod. The trooper was called to the scene by military security police who had stopped the defendant's vehicle after it sped past a guardhouse and proceeded through a security gate into the restricted air base.

The air base is a highly secure, enclosed area containing approximately 3,600 acres within the larger reservation. The base houses the 102d Fighter Wing, which maintains seventeen F-15 fighter jets at that location. It is surrounded by a perimeter fence and is guarded by armed Massachusetts Air National Guard security officers twenty-four hours a day. Access to this area is highly restricted. It was on these premises that the defendant was ultimately stopped and detained by security police. The reservation has also hosted numerous other facilities, including three town of Bourne public elementary schools, a Bourne public junior high school, a little league baseball field, a BMX bike facility, the Otis Golf Club, a waste transfer facility, and a waste water treatment plant.

When the defendant was first observed, he was driving through the reservation at a fast rate of speed on South Outer Road which leads to the air base. He was seen by an armed Massachusetts Air National Guard security officer who was stationed in a guardhouse located at the front gate of the base. The front gate of the air base is located on South Outer Road at a point approximately sixty to seventy yards from where that road intersects Simpkins Road. Simpkins Road begins at the Falmouth entrance to the reservation and continues to the intersection with South Outer Road.

The two intersecting roads, like the other roadways of the reservation, are paved with asphalt. Each has two lanes traveling in opposite directions separated by a painted median line. The edges of both roads are outlined with painted lines, and guardrails are installed at different locations along the sides of each. There is a set of blinking red and yellow traffic lights where the roads intersect. As are the other roadways in the reservation, Simpkins Road and South Outer Road are plowed and maintained by the Massachusetts Army and Air National Guard. They are also routinely patrolled by the Massachusetts State police, who enforce the traffic control provisions of M.G.L.A. c. 90, with respect to motorists using the roadways of the reservation.

Cars and trucks gain access to the reservation through the three entrances located around its perimeter. There is both a guardhouse and a gate located at each entrance; the guardhouses have been unmanned since 1995, and each gate is routinely left in the “open” position. There is no access to the reservation except by means of one of the three gates through which any person seeking to enter the reservation may pass unimpeded. Several non-illuminated signs are present at each entrance, some apparently dating to the period when the United States Air Force maintained an active presence on the reservation. One warns that persons entering the gate require permission of the commander of the “U.S. Air Force Installation,” which is no longer extant. Similarly, next to each vacant guardhouse is a sign indicating “authorized personnel only” and “ID card and or decal required.” (The Court noted that, in the absence of a guard regularly posted at that location, there was no mechanism for determining whether a person entering the reservation had the described documentation.) Finally, a smaller “no trespass” sign was also located in the vicinity of each gate.

Held: The “characteristics of the way” are such that the roads of the reservation all share a number of traits indicating their accessibility to the public. In addition to being extensively used by business visitors and others, they are paved and contain multiple lanes of travel. They also have painted lines, guard rails, stop signs, speed limit signs, and blinking red and yellow lights. The Commonwealth also presented evidence establishing that the roads of the reservation are in fact accessed by numerous persons as invitees or licensees of the various institutions and enterprises located there. Indeed, the universe of people that routinely travel the roadways of the reservation is considerable and is commensurate with the many activities on the site that involve participation by the public such as public schools, a golf club, a baseball field, a recreational bike facility, hunting areas, government offices, and a national cemetery. In addition, those facilities are also serviced by business and commercial vehicles, constituting another source of public access to the reservation. NOTE: Since this case the status of entry onto Otis and other military installations has changed dramatically. The previously unmanned guard houses are now manned by military police with M-16 automatic weapons and permission must be granted to enter the base. It is unlikely that the area beyond such a checkpoint would be considered a public way.

Com. v. George, 406 Mass. 635, 550 N.E.2d 138 (1990).

Facts: On the evening of July 7, 1986, the defendant and a female companion purchased a six-pack of beer. She drove the defendant's pick-up truck to Brockton's West Junior High School where she parked the truck on the grass in centerfield of the school's baseball field. The couple consumed several bottles of beer. At approximately 11 P.M., while making a routine patrol through the school parking lot, Officer James Snyder of the Brockton police department observed the defendant's truck parked on the field. Officer Snyder drove onto the field via a dirt and gravel path, which connects the parking lot with the field. The defendant was sitting in the truck's driver's seat. After a brief conversation, Officer Snyder told them to leave the area. The officer then drove away. As the defendant began to drive from the baseball field, he made a sharp turn on the damp grass, which caused the truck to roll over, landing on the driver's side.

At approximately 11:10 P.M., Brockton police officer Michael Dadak observed the defendant's overturned truck on the field, with the defendant still behind the steering wheel. The defendant climbed out of the truck, carrying a brown paper bag, which he tossed away from the truck. After an admission to consuming alcohol and failing field sobriety tests the defendant was arrested for violation of M.G.L.A. c. 90, §24(1)(a)(1), as well as other charges.

The baseball field is owned and maintained by the city of Brockton. During the summer, members of the public can use the field for baseball and softball games if they first obtain a permit from the city parks department. Members of the public are invited to attend these games and to park their cars in the school parking lot. Seating is provided at the field for spectators.

Held: The record did not reveal any of the usual “indicia of accessibility to the public,” such as street lights, paving, curbing, abutting houses or businesses, crossroads, traffic, street signs, or hydrants. The record indicated that the baseball field was not a public way or a way to which the public had a right of access as invitees or licensees. Surrounded on three sides by a golf course, the baseball field was located at the rear of the school parking lot, northwest of the school building itself. The jury could have found that, in order to enter the baseball field by motor vehicle, an operator would have to drive over a berm (curb) on the edge of the parking lot. The grass area of the field was connected to the parking lot via two separate entrances. One entrance was paved, but was blocked by a barrier that prevented entry to the field by a motor vehicle. The other was not blocked by any gate or chain, but was unpaved and intended only for use by city equipment servicing the field. Two “no trespassing” signs were posted on the school building, a couple of hundred feet from the baseball field. One read, “No trespassing of unauthorized personnel, including motor vehicles, per order of Brockton School Department.” The other sign said, “No cars beyond this point.” 

There was no basis for a determination that the baseball field was open for travel in an automobile. The facts did not disclose any basis for a member of the public to assume reasonably he or she could properly drive a motor vehicle onto the baseball field. Because there was no evidence the defendant drove the pick-up truck on a public way, a way to which the public had a right of access, or a way to which the public had a right of access as invitees or licensees, the court held that the defendant's motion for a required finding of not guilty should have been allowed.

(Taken from Drunk Driving Defense in Massachusetts, pg. 30-32