Com. v. Colby, 23 Mass. App. Ct. 1008, 505 N.E.2d 218 (1987).

Facts: When the police first saw the defendant's automobile with its engine running, its headlights on, and the defendant sleeping in the front seat, the two left wheels of the automobile were on East Mountain Road in Westfield. East Mountain Road is maintained by the city as a public way, and the traveled portion is paved with asphalt or concrete. It has traffic lanes marked on its surface. There are streetlights overhead, and there are hydrants along the shoulders of the road as a part of the public water system. The vehicle's left wheels were on the road's paved travel lane by one foot; the right wheels were on the shoulder of the road. The shoulder consisted of a strip of gravel, beyond which there was an area of pebbles, grass, and bushes or hedges. After police removed the defendant from the front seat of his automobile and placed him in one of their cruisers, they moved the defendant's automobile to a position entirely off the traveled road. The defendant was then taken to the police station.

Held: That where the vehicle's left wheels were on a public way, that evidence was sufficient to permit the jury to find that when the police first arrived the defendant's automobile was on a public way.

Com. v. Paccia, 338 Mass. 4, 153 N.E.2d 664 (1958).

Facts: The defendant operated a motor vehicle on Snell Place and an adjacent parking lot, both of which are owned by a Mrs. Reynolds. Snell Place runs east and west between South Main Street and Montello Street, both of which run north and south. At the north and south sides of the westerly entrance to Snell Place are a restaurant and a market building. The surface of Snell Place is black top. Behind the two buildings the black top area widens to form a parking space, which is maintained by Mrs. Reynolds and her lessees. 

Snell Place has been owned by the Reynolds family for some years. The black top surface was laid about three years ago. Within the past twenty years Snell Place has been blocked off several times to prevent the passage of vehicles entering from South Main Street and the establishment of prescriptive rights. Mrs. Reynolds has also removed on several occasions city of Brockton signs saying “Snell Place.” No taking of the place by eminent domain proceedings by any public body has ever been made. It is possible for vehicles to pass over the portion of Snell Place owned by Mrs. Reynolds from South Main Street to her eastern boundary, and then to continue east across an unsurfaced roadway to Montello Street. Such passing does take place from time to time and nothing is done to prevent it.

Held: At the time of this decision, the Legislature had not included within the scope of M.G.L.A. c. 90, §24 privately owned places, not shown to be subject to any general public easement as of right. Statutes are to be strictly construed and are not to be extended merely by implication. The court held that if the Legislature had wished to include areas like Mrs. Reynolds's portion of Snell Place, to which members of the public have access only as business invitees or licensees, within the penal prohibitions of §24, it would have been appropriate for it to have made a clear and specific provision to this effect.

Note: Shortly after this decision the Legislature amended M.G.L.A. c. 90, §24 to include areas open to invitees or licensees.

Com. v. Callahan, 405 Mass. 200, 539 N.E.2d 533 (1989).

Facts: A pickup truck driven by the defendant struck eleven year old Stephen Scofield, who was operating a “go cart” on privately owned property known as the “sand pits” in Norfolk. The “sand pits” were a thirty-three acre parcel owned by Carlo Musto of Westwood, and an adjoining “barren, wide, open, and sandy” parcel of unspecified size owned by Steven Small. The two parcels are separated by a ridge, approximately ten to fifteen feet high with sloping sides, that runs several hundred yards from Route 115 to the rear of the site. A thirty-to-sixty foot bluff borders the back of both parcels. There are no structures of any kind on either parcel, but there are tires on the property which form an obstacle course for recreational vehicles. This use was without the permission of the owners. All “No Trespassing” signs, except one, that had been posted at one time had, over the years, been vandalized and removed. The owners were aware that people had been using the sand pits, but they took no affirmative steps to exclude the public. They did notify the Norfolk Police who said that they would patrol the area. A stop sign had been placed on the property by the owners to help traffic exit onto Pine Street. No barriers were ever erected to prevent access to the property.

Held: The “sand pits” were not property to which the public had access as licensees within the meaning of the statutes under discussion. The owners of the property took no affirmative steps to exclude the public from their lots, and there were no barriers preventing access to the property, but the public use of the property “was without the permission of the owners.” The property had been posted with “No Trespassing” signs which were vandalized over the years. Also, the owners had notified the local police, who said that they would patrol the area. It is more reasonable to conclude for the purposes of this criminal case that members of the public had access to the property only as trespassers, who entered land “without a privilege to do so, created by the possessor's consent or otherwise.”

Com. v. Kiss, 59 Mass. App. Ct. 247, 794 N.E.2d 1281 (2003).

Facts: The police found the defendant sleeping or passed out behind the wheel of a motor vehicle in a parking space of a closed mall. The police officer testified that the shops in the mall were closed; however there were pay phones and newspaper boxes available for use by the public.

Held: A shopping mall parking lot in which defendant appeared to be sleeping or passed out in his car when the mall shops were closed constituted a way “to which the members of the public have access as invitees or licensees,” for purposes of the operating a motor vehicle while under the influence of alcohol statute. The presence of services such as pay telephones and newspaper distribution boxes, which could be used without the presence of a storekeeper, created reasonable expectation among members of the public that they were welcome to operate their vehicles in the parking lot in order to access those services. Additionally, the Appeals Court rejected the so called “shelter defense,” that is, where a person seeks shelter and stops his vehicle because he/she believes they are under the influence of alcohol.

(Taken from Drunk Driving Defense in Massachusetts, pg. 33-34)