1:5. Public way
Research References

West's Key Number Digest, Automobiles &key;332

C.J.S., Motor Vehicles §§1382 to 1394

The second element of the offense of operating under the influence is public way. M.G.L.A. c. 90, §24, defines public way as operation 1) upon any way or 2) in any place the public has a right of access or 3) in any place to which the public have access as invitees or licensees. In examining whether a way is a public way, “[i]t is the status of the way, not the status of the driver, which the statute defines.”  Moreover, it is the objective appearance of the way that is determinative of its status, rather than the subjective intent of the property owner. It is sufficient if “‘the physical circumstances of the way are such that members of the public
may reasonably conclude that it is open for travel to invitees or licensees.'

As expressed in M.G.L.A. c. 90, §24, there are three different “types” of public ways. The first is simply “any way.” Some usual indicia of a location being a public way include paved roads, absence of signs prohibiting access, street lights, curbing, abutting houses or businesses, crossroads, traffic, signs, signals, lighting and hydrants and that the area is maintained by a municipality, city or state. Another factor may include the patrolling of the area by the police. A photo of the way is also admissible to prove public way.

Where a running motor vehicle was parked with the left tires approximately one foot on a paved asphalt/concrete road with lane markings, fire hydrants and overhead street lights, there was sufficient evidence on the element of public way. Public way was clearly established where the defendant was involved in an accident on a rotary where five highways intersected together which was clearly marked with signs and blinking yellow lights.

The second type of public way is defined as operation in any place the public has a right of access. This “type” of public way was narrowly construed as being applicable only to property subject to any general public easement as of right. Thus, the second type of public way could not be “applied to a motorist apprehended on a privately owned road which was used by the public but in which the public had no general easement as of right.”

The legislature created the last type of public way to address problems of operation of a motor vehicle under the influence of alcohol on private property wherein the public had a right of access as licensees or invitees. The words “invitee” and “licensee” are terms borrowed from common law. These words were used to distinguish between the duties a landowner owed to a person who was on his land by “invitation,” one who was there by “license,” and one who was a trespasser.

An “invitee” is a person who is at a place, usually a business establishment, at the request or invitation of the owner and for the mutual benefit of both. For example, a potential customer of a restaurant is an “invitee.” A “licensee” is a person who is at a place with only the passive permission of the owner and usually for the licensees' benefit. For instance, a person driving on a private way that is commonly used by the public without the owner's objection is a “licensee”.

In examining the status of the third type of way it must be determined whether the public had access to the property only as trespassers who entered the land “without a privilege to do so, created by the possessor's consent or otherwise.” Mere failure to object by the owners is not necessarily the consent or permission needed to transform a trespass into presence by license. However, a way that is accessed only by trespassers is not a “way to which members of public have access as invitees or licensees.” It must be access as an invitees or licensees by means of a motor vehicle. For instance, the Supreme Judicial Court held a baseball field was not a public way because the facts did not disclose any basis for a member of the public to reasonably assume he or she could properly drive a motor vehicle onto the baseball field.

The most common method of proving public way is through the testimony of the arresting officer as to the characteristics of the way, including who maintains the area. The Commonwealth may also make a prime facie showing that a way is a public way through a certificate from the secretary of the public works commission in the case of a state highway or by a city or town clerk in the case of a city or town way.

While the appellate court gives substantial deference to a trial judge's ultimate findings on the question of whether the operation of a motor vehicle occurred on a way to which members of public have access as invitees or licensees, the legal rulings and conclusions of law of the trial judge are subject to independent review.

(Taken from Drunk Driving Defense in Massachusetts, pg. 26-28)