Appeals Court (August 4, 2006)

Proof of operation may rest entirely on circumstantial evidence.

Failure of a judge to hold a plea colloquy on the second offense portion of an operating under the influence charge is reversible error even if defense counsel stipulated.

The defendant was convicted of operating under the influence of intoxicating liquor (OUI). After the verdict was returned on the underlying OUI, defense counsel stipulated that the defendant had a prior OUI and waived his client's right to trial on the issue. The trial judge entered a guilty finding on the second offense portion of the OUI charge and sentenced the defendant accordingly. The defendant appealed and among other issues claimed: 1) insufficient proof of operation; and 2) failure to conduct a trial or a change of plea colloquy on the second offense portion of the OUI charge.

Operation

The defendant claims that the evidence presented at trial, even when viewed in the light most favorable to the Commonwealth, did not establish that he operated the motor vehicle. In this case, the defendant left the scene after crashing his car on a neighbor's lawn. The defendant returned to the scene after the police arrived with keys in hand claiming he had no knowledge of how his car ended up in that spot. The defendant submitted to a series of field sobriety tests and was placed under arrest. The appeals court reiterated once again that proof of operation may rest entirely on circumstantial evidence.

Second or Subsequent

The Appeals Court nevertheless reversed the conviction for the second offense because the judge failed to hold a trial or a change of plea colloquy
on that portion of the OUI charge. While defense counsel may stipulate to a prior offense and a defendant may waive a jury trial on a prior offense, there are certain procedures that must accompany a waiver, including an informed colloquy between a judge and defendant.