The Massachusetts Appeals Court today reversed a man's third OUI conviction for an incident in which a Revere police officer stopped him after watching get out of a traffic jam on American Legion Highway by pulling off the road and driving on the sidewalk for 200 feet.
The reversal centered mainly on evidence the court said the jury shouldn't have been allowed to see - RMV records that showed he'd refused to take a breath test after he was stopped - but the court agreed with Arturo Cueva that simply pulling a Masshole maneuver on that stretch of American Legion Highway on Aug. 28, 2015, was not enough to prove he showed enough signs of impairment to warrant pulling him over.
In fact, that was Cueva's main line of defense on the OUI charge: That people have been driving on that sidewalk for a long time and so it was hardly out of the ordinary. As the court noted:
He asserted, through counsel, that he drove on the sidewalk to avoid the traffic and that the sidewalk was wide enough for vehicles. He also claimed that vehicles often parked on that sidewalk and introduced evidence - two photographs - to corroborate his claim.
The logic persuaded the court:
Although the defendant clearly exhibited signs of intoxication, and evidence that he drove on a sidewalk was sufficient to prove impaired operation, the evidence was not overwhelming. The defendant essentially was stopped for taking a shortcut along the sidewalk to avoid traffic.
In the same decision, the court threw out Cueva's conviction for driving with a suspended license, because prosecutors were unable to prove the Registry of Motor Vehicles had notified Cuevas his license was suspended and that he shouldn't have even been behind the wheel of his girlfriend's Camry that day.
Prosecutors argued Cuevas should have known his license was suspended, given that he'd pleaded guilty to OUI in January, 2015 and that part of his sentence was a two-year loss of license but the court ruled that, under state law, that's not enough, that the Registry had to have supplemented the verdict with proof it had sent him notification of his license suspension:
The Commonwealth, therefore, did not meet its burden of proving every element of the offense [driving with a suspended license] beyond a reasonable doubt.
A spokesman for the Suffolk County District Attorney's office said today prosecutors intend to retry Cuevas on the OUI charge.