## Facts

- Lisa Virgilio lived in a single-family cottage on Burden Street in Sutton, Massachusetts, next to a two-family dwelling.
- Between the two residences was a paved driveway that widened and ended in a parking area.
- Only occupants of the two houses used the parking area; no businesses or public services were located along or around it.
- While intoxicated, Virgilio operated a vehicle in the driveway/parking area and struck another parked vehicle.
- She was charged and convicted in District Court of operating under the influence (OUI) under G.L. c. 90, § 24(1)(a)(1).
- Virgilio moved for a required finding of not guilty, arguing the Commonwealth failed to prove the statute’s “public access” location element; the motion was denied.

## Issues

1. Whether a shared paved driveway and parking area serving only two adjacent residences is a “way or place to which members of the public have access as invitees or licensees” under G.L. c. 90, § 24(1)(a)(1).
2. Whether the evidence was sufficient, viewed in the light most favorable to the Commonwealth, to prove beyond a reasonable doubt that the statutory location element was met.

## Decision

- The Appeals Court reversed the conviction.
- The court held the driveway and parking area were not within the statute’s coverage because they were private residential premises used only by residents (and their personal visitors), not a location open to the public as invitees or licensees.
- Because the evidence was insufficient on the location element, denial of the motion for a required finding of not guilty was error.
- The court did not reach the defendant’s sentencing challenge.

## Legal Principles

- Under G.L. c. 90, § 24(1)(a)(1), the Commonwealth must prove operation while intoxicated occurred on a public way, a place to which the public has a right of access, or a place to which members of the public have access as invitees or licensees.
- The “invitees or licensees” clause extends the statute beyond traditional public ways, but it does not cover all private property; the location must have the character of a place open to or regularly used by the public.
- The mere possibility that social guests or other visitors may enter private residential property does not, by itself, make it a place to which “members of the public” have access for purposes of the statute.
- On a motion for a required finding of not guilty, courts apply the Latimore sufficiency standard: whether any rational factfinder could find each essential element proved beyond a reasonable doubt, viewing evidence favorably to the Commonwealth.

## Conclusion

The Appeals Court reversed the OUI conviction because the Commonwealth failed to prove that the defendant’s operation occurred on a statutorily covered location; a private residential driveway and parking area serving only two homes is not a place to which members of the public have access as invitees or licensees within G.L. c. 90, § 24(1)(a)(1).


Commonwealth v. Virgilio, 79 Mass. App. Ct. 570, 947 N.E.2d 1112 (2011)