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Flashcards in Criminal Law Deck (76):

How is jurisdiction created in a criminal case?

Where act took place or where result took place.


What is the burden of proof in a criminal case?

Beyond a reasonable doubt.

Note* Juries cannot presume the required mental state i if they find that D committed the acts necessary to establish the offense.


What is a felony? What is a misdemeanor?

Felony - Punishable by death or 1+ years imprisonment.

Misdemeanor - Punishable by a fine and/or less than 1 year in prison.


What are the broad elements to every crime?

1) Voluntary Act (not sleepwalking, unconscious, or a reflex/convulsion) or failure to act when you had a legal duty, knowledge, and ability to act. Don't forget that the duty to act can arise from a statute, contract, spousal relationship, parent child relationship, an undertaking, or creation of the peril.

2) The Proper Intent (Specific, General, Malice or Strict Liability).

3) Causation - Actual (but for) and Proximate

4) The Concurrence Principle - Appropriate mental state at the time of the criminal act.


What is specific intent and what are the specific intent crimes?

Desire to achieve a specific result.

Spec. Intent Crimes:
1) Assault
2) First Degree Murder
3) Larceny
4) Embezzlement
5) False Pretenses
6) Robbery
7) Forgery
8) Burglary
9) Solicitation
10) Conspiracy
11) Attempt

Note***Voluntary intoxication and unreasonable mistakes of fact only work to negate specific intent.


What is malice? What crimes require it?

Act intentionally or with reckless disregard of the risk.

Malice Crimes:
1) Arson
2) Murder


What is general intent? What crimes?

Generally aware of the result (inferred from doing the act usually).

General Intent Crimes:
1) Battery
2) Forcible Rape
3) False Imprisonment
4) Kidnapping


What is strict liability with respect to criminal law? What crimes?

Absence of mental state required.

Public welfare offenses such as transferring unregistered firearms, selling contaminated food, or shipping adulterated drugs in interstate commerce.
Statutory Rape


How does the Model Penal Code differentiate mental states from the common law?

MPC has 5 mental states
1) Purposeful (Conscious desire)
2) Knowing (aware)
3) Recklessness (substantial and unjustifiable risk and a conscious disregard thereof)
4) Criminal Negligence (should have been aware of a substantial and unjustifiable risk)
5) Strict Liability (just a causal relationship between the act and the commission of a crime).


What is the difference between actual and proximate cause?

Actual cause = But for causation

Proximate cause = the bad result was the natural and probable consequence of D's conduct. Is it foreseeable? Unforeseeable intervening acts relieve D of being found guilty. However, D takes the victim as he finds him (Eggshell victim).


When is the concurrence principal most likely to present a problem?

Required mental state at same time as act most likely to present a problem in larceny and burglary cases.


What is common law battery?

Application of force;
Resulting in either bodily injury or offensive touching.

General intent crimes.

In MA, no aggravated battery but enhancements for battery if:
1) cause serious bodily injury
2) victim is pregnant woman
3) victim had a restraining order against attacker


What is common law assault? Change in MA?

Attempted battery (swing and miss)
Intentional creation beyond mere words;
Of a reasonable apprehension;
Of imminent bodily harm.

Specific intent = create imminent apprehension of contact.

In MA, need not prove that the victim was actually placed in apprehension, just that D engaged in objectively menacing conduct intending to place victim in apprehension of imminent bodily harm. It is also a crime to threaten to commit a crime against the person or property of another.


What is common law murder?

Causing the death of another person with malice aforethought.

Another usually must be someone born, but in MA, it includes a viable fetus.

4 Possible Mental States
1) Intent to kill (inferred from use of deadly weapon)
2) Intent to cause seriously bodily harm
3) Depraved Heart/Extreme Recklessness/Reckless Indifference
4) Intentional commission of an inherently dangerous felony (felony murder).


What is the year and a day rule? Does it still apply?

At common law, the victim must die within a year and a day from the homicidal act to charge D with murder.

The majority and MA rule is that death may occur at any time.


What is transferred intent? When does it apply?

Transferred intent applies when D intends to harm V1, but instead harms V2. The intent to harm V1 transfers to the actual victim, V2.

Applies to murder, battery, and arson.

It does not apply to attempts. So if you intended to kill V1, and you missed, thus harming V2, but V2 did not die, V2 cannot go after you for attempted murder, only V1.


If you intend to kill V1, but you kill V2, can you be charged with murder of V2 and attempted murder of V1?

Yes. 2 victims so there is no merger.


What is felony murder? Changes in MA?

Any killing caused during the commission of or attempt to commit a felony (burglary, robbery, rape, arson, and kidnapping for sure).

1) D must have committed the underlying felony (so a defense to the felony is a defense to felony murder).
2) The felony must be inherently dangerous (see list above)
3) The felony must independent of the killing (e.g. assault and battery cannot be felony murder).
4) The killing must take place during the felony or in flight therefrom (over once reach temporary safety).
5) Death must be foreseeable
6) At common law, the victim must not be a co-felon.

In MA, the victim may be a co-felon, but felony murder only attaches if the killing is committed by one of the felons not a security guard, bystander, cops, etc. This is the Agency Theory.

Some states follow the Proximate Cause Theory in which the felons may be charged with murder even if the actual killing was done by a third party.


How is murder broken down in MA?

First Degree Murder
(a) premeditation and deliberation; or
(b) extreme atrocity or cruelty; or
(c) felony murder when the underlying felony is punishable by life imprisonment.

Second Degree Murder - all other murders, including murders committed during a felony that could not carry life imprisonment.


What is voluntary manslaughter? What about MA?

It would be murder, but it was in the heat of passion due to adequate provocation (serious A&B or witnessing adultery, but not mere words)

4 elements:
Objective adequate provocation;
Subjective provocation;
Objectively wouldn't have calmed down at time of the killing;
Subjectively hadn't calmed down at time of the killing.

In MA, additional allowance for inflammatory info such as learning about spouse's infidelity, but the info must come from the victim, not a third party.


What is involuntary manslaughter? Changes in MA?

(a) A killing committed during a crime, but a crime not serious enough for felony murder; OR
(b) An unintentional killing committed with:
(i) Criminal negligence (gross deviation from reasonable standard of care) = Common Law
(ii) Recklessly (awareness and conscious disregard of a substantial and unjustifiable risk of death) = Modern Trend.

In MA,
Causing death unintentionally::
(a) By wanton or reckless conduct (high degree of likelihood that substantial harm will result to another);
(b) By committing a battery that D knew or should have known created a high degree of likelihood that substantial harm would result.


What is false imprisonment? What is kidnapping?

FI = Unlawful confinement of a person without his or her consent.

Kidnapping = False imprisonment + moving the victim or secluding the victim in a secret place.

Both General Intent Crimes.


What is forcible rape? What is statutory rape? MA distinctions?

Rape = Sexual intercourse without the victim's consent, accomplished by force, threat of force, or the victim is unconscious.

Statutory Rape = Sexual intercourse with someone under the age of consent (16 in MA)
In MA and in a majority of states this is a strict liability crime.
MPC allows for a reasonable mistake.


What is larceny?

A trespassory taking and carrying away of another's personal property with the intent to permanently deprive the owner of the property.

Specific intent to steal.

Note***Taking under an erroneous claim of right is not larceny.
Note***Concurrence Principle Exception - If you take it with the intent to return it, but you later form the intent to permanently deprive, then the trespassory taking is said to have continued and the thief will be guilty of larceny.


What is embezzlement?

Conversion of the personal property of another by a person already in lawful possession of that property, with the intent to defraud.

Requires specific intent to defraud.

Note***Possession requires more than mere custody. It requires the authority to exercise some discretion over the property.

Compare a trustee who siphons money from a trust to a bank security guard who takes $1000 from the bank.


What is false pretenses? What is larceny by trick?

False pretenses is obtaining title to the personal property of another by false statement made knowingly, with the intent to defraud. With false pretenses, D actually gets actual title, not merely custody.

In Larceny by Trick, D obtains only custody as a result of his false statement.

Compare using a false statement to induce the current owner to grant you ownership (FP) with using the false statement to induce the current owner to just grant you use (L by T).


What is robbery? What about in MA?

Larceny +
from someone's person or presence (separate room in the house is close enough) +
Force (not stealth like pick pocketing) or threat of immediate injury (not future harm)

Specific intent to steal.

Note***Pick pocketing is larceny, threat of future harm is extortion.

In MA, Armed Robber occurs when a person is armed with a dangerous weapon, and he assaults another and commits robbery or larceny. The weapon need not be used in the robbery.


What is forgery?

Making or altering a writing so that it is false. The crime is complete when the writing has been written. e.g. forgery committed when you write a check on someone else's checkbook, not when it is cashed.

Requires specific intent to defraud.

In MA, this would be attempted larceny if he fails to get the money.


How do MA theft offenses differ from the Common Law?

MA has consolidated larceny, embezzlement, false pretenses, and L by T into a single offense called larceny.

Grand Larceny (felony) is larceny of property more than $250 or larceny of any firearm or larceny of any motor vehicle.

Petit Larceny (misdemeanor) is larceny of property valued at $250 or less (other than firearms and motor vehicles).


What is Common Law Burglary?

Breaking and entering the dwelling of another at night with the intent to commit a felony inside.

"Breaking" = creating or enlarging an opening by at least minimal force. (breaking a window, opening a window, or entry gained through fraud, yes; climbing through an open window or entering with permission, no).

"Entry" = any part of the body breaks the plane.

"Dwelling" = where someone regularly sleeps.

"Of another" = can't burglarize your own house.

Specific intent = commit a felony therein (steal, rob, rape, assault, kill, etc.)


What is Burglary in MA?

MA recognizes common law burglary but there are additional statutory versions that include buildings and structures other than dwellings (extends to boats, r/r cars, etc.), including day time and night time, and the intent can be to commit a felony or misdemeanor. Finally, entering without breaking is sufficient if conducted at night.


What is criminal trespass in MA?

1. Enters or remains on the property of another;
2. After having been forbidden to do so;
3. Either directly or by posted notice.


What is arson? What about in MA?

The malicious burning of the dwelling of another. Burning means charring not scorching, and it must be the building itself, not something like the carpet.

MA and other states extend this to all pieces of property including D's own home.

State of Mind = Malice


What is possession of contraband?

Control of the banned thing for a period of time long enough to have the opportunity to terminate possession. Possession need not be actual. Could be close enough for D to exercise dominion and control (could be in his closet or a hotel room, etc.).

Mental state = Knowledge of the possession and the character of the item possessed.


What is receipt of stolen property?

Receiving possession and control of stolen personal property (not previously stolen property recovered by the police and used in a sting. The property must actually be "stolen").

Mental state = Know the property has been obtained criminally by another party and with the intent to permanently deprive the owner of the interest in the property.


What is the possession of drugs in MA look like?

Illegal to knowingly posses a controlled substance, unless it was obtained with a prescription.

Separate offense to knowingly or intentionally possess a controlled substance with the intent to manufacture, distribute, or dispense it.

Intent may be inferred by the quantity of substance possessed, the manner in which it is packaged, or through records held by D.

Possession of less than one ounce of marijuana is not a crime.


What firearms laws exist in MA?

In MA, it is a crime to knowingly possess an unlicensed firearm, loaded or unloaded, outside of one's residence or place of business; or
own, possess, or carry a sawed off shotgun on one's person or in one's vehicle; or
own, possess, or transfer a firearm that has not been registered with the state.

In the same car isn't enough. D must have had knowledge coupled with ability and intent to exercise dominion.


What is OUI in MA?

Felony to OUI of narcotics or liquor or other controlled substance anywhere the public has a right of access.


What is carjacking in MA?

Felony to assault, confine, maim, or to put any person in fear for the purpose of stealing a motor vehicle. D need not succeed to be guilty of carjacking.


What is destruction of property in MA?

Willfully and maliciously or wantonly destroy the property of another.

W and M = intended conduct and harmful consequences and the conduct was motivated by cruelty, hostility, or revenge.

Wantonly = D was indifferent to the probable consequences of his conduct.


What is open container in MA?

Unlawful and punishable by a fine of up to $500 for the driver or any passenger to have an open container of alcohol in the passenger area of a vehicle.


What is accomplice liability?

Aid and encourage the principle to commit an offense with the intent that the offense be committed. Accomplice is liable for the aided and encouraged offense, as well as, foreseeable crimes committed along with the aided crime.

Mere presence or knowledge is not enough.

Can withdraw before the crime is committed:
(a) As an encourager if you repudiate.
(b) As an aider if you either neutralize the assistance or prevent the crime from happening (e.g. notifying the authorities).

Most jurisdictions = If principal's crime requires a mental state of recklessness or criminal (gross) negligence, an accomplice is liable for his intentional conduct that aids the principle and the required recklessness or negligence manifests. NOT IN MA.

Also in MA, an accomplice/joint venturer is one who knowingly participated in the commission of the crime with the intent required of the offense. To withdraw, he must communicate his withdrawal to the other participants and do so early enough to give other parties a reasonable opportunity to withdraw as well.


What is accessory after the fact?

Common Law and MA = The same

Help the principal who has committed a felony with knowledge that the crime has been committed and with the intent to help the principal avoid arrest or conviction.

MA does exempt certain family members (spouses, parents, grandparents, siblings, and children.)


What is enterprise liability?

When a corp. agent engages in criminal conduct both the corp. and the agent may be held criminally liable provided the agent is acting on behalf of the corp. and within the scope of his office.

Similarly, a public welfare offense is one in which a corporation commits a regulatory offense involving public health or safety. In this case, its agents can also be held criminally liable provided the agents stand in responsible relation to the situation that created a public danger.


What are the three incohate offenses?

1) Solicitation
2) Conspiracy
3) Attempt

All require the specific intent that the crime be committed.


What is solicitation?

Asking someone to commit a crime with the intent that the crime be committed.

The crime is completed upon asking, it need not be carried out.

Similar to test for incitement which is not protected speech:
Advocacy of lawless action that is both
1) intended and
2) likely to produce imminent lawless action.

Mere advocacy is not enough.


What is conspiracy?

At common law:
(a) 2+ persons agree (no unilateral agreement at CL or in MA);
(b) Intend to enter into an agreement (need not be express, can be a concert of action); and
(c) Intend to achieve the agreement's objective.
(d) Majority (not CL or MA) = requires overt act even if the act is merely preperatory.

In MA, no overt act required, and the object of the conspiracy need not be criminal if there's a strong possibility of significant harm to an individual or general public. Furthermore, at CL and in MA, if all other Ds are acquitted, the last remaining D cannot be found guilty of conspiracy.

Specific intent x 2 = intent to enter into the agreement and intent that the objective(s) be committed.

Completion is unnecessary; the crime is the agreement.

Unilateral approach only one D needs to have the specific intents; others can be pretending (e.g. undercover cops) and even if all others acquitted, D can still be guilty of conspiracy.


What is the Wharton Rule?

If crime requires two people (e.g. dueling), then you need 3 for conspiracy.

MA does not follow Wharton with regards to conspiracies to distribute drugs.


When may you conduct a citizen's arrest in MA? At CL?

In MA, only if the suspect in fact committed a felony, and only non-deadly force may be used.

At CL, use of force to prevent a crime can be used if reasonably necessary to prevent any serious breach of the peace. Deadly force only to prevent a felony risking human life.



What is vehicular homicide in MA?

Causing the death of another by driving recklessly or wantonly. Increased penalty if OUI (Melanie's law). There's a separate crime for killing with auto because of your negligence.


What is stalking in MA?

(i) Willfully and maliciously engage in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress.
(ii) make a threat with the intent to place the person in imminent fear of death or serious bodily injury (email or fax can suffice).


Felony for hire in MA?

One who commits a felony because he was paid consideration or given a promise of payment for the commission of a felony is guilty of felony for hire and the crime itself.


Wiretapping illegal in MA?

Yes, illegal to intercept and wire or oral comms without others' consent (all parties), and so is disclosing the info from an illegal wiretap if you knew it was obtained through interception.


Important SoL in MA.

Murder = none
Rape and assault with intent to commit rape = indict within 15 years
Rape and sex assault against children = none, generally.
Robbery, assault with intent to rob or murder, or incest = 10 years.
Other crimes = six years.

Time excluded when not a resident of MA. SoL begins running after victim turns 16 if under 16 when crime against victim was committed.


What is the Pinkerton Rule for vicarious liability?

In addition to conspiracy, a D will be liable for other crimes committed by his co-conspirators, so long as, those crimes were in furtherance of the conspiracy and were foreseeable.

MA REJECTS THIS RULE. D must be an accessory or accomplice.


Can impossibility be a defense to conspiracy?

No. The crime is the agreement.


What is attempt? MA distinction?

General requirements: Attempt requires an overt act beyond mere preparation.

In MA and at Common Law - D must engage in conduct that gets dangerously close to the commission of the crime.

Majority/MPC Standard = D engages in conduct that does an act constituting a substantial step towards the commission of the crime provided the conduct strongly corroborates D's criminal purpose.

Compare the following:
D drives along his intended victim's normal walking route at the time victim is usually walking but victim is nowhere to be found.
MPC - Attempt
MA and CL - No attempt


Same facts but this time victim is walking on his route, and D goes as far as raising his gun before he is tackled by a third party.
MPC, MA, and CL = attempt

Attempt is a specific intent crime = intent to commit the underlying offense..

Note***You cannot be guilty of an attempt of a crime that only requires recklessness, criminal negligence, of felony murder because you can't intend something done unintentionally.


May you withdraw from an incohate offense and use it as a defense?

General Rule and in MA - Withdrawal is not a defense.

However, the general rule has an exception that once a D withdraws from a conspiracy, he will no longer be liable for crimes committed by his co-conspirators after he left the conspiracy. He remains liable for conspiracy and the foreseeable crimes committed by co-conspirators prior to his withdrawal.

Since MA does not acknowledge Pinkerton, this exception does not apply.

On Jan 1 D conspires with V and A to sell drugs. Jan 8, V sells drugs to B. Jan 12, D withdraws. Jan 14, A sells drugs to C. D is arrested on Jan 21.

What is D going to be charged with?
In General = conspiracy and sales prior to his withdrawal.
In MA = conspiracy only, no Pinkerton, and did not act as accomplice.


Does merger apply to the incohate offenses? BAR FAVORITE

Yes to solicitation and attempt. No to conspiracy.

Test knowledge on page 33 of the lecture handout.


What is the insanity defense? Not commonly tested, but it has been.

M'Naughton Test = majority test
D either did not know that his conduct was wrong or did not understand the nature of his conduct.

Irresistible Impulse = D either unable to control his actions or was unable to conform his conduct to the law.

MPC and MA = D lacked substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of the law.

In Fed Ct, requires D to prove insanity by clear and convincing evidence.

In MA, burden is on prosecution to find D sane if shows evidence of insanity.


What is incompetency? How does it differ from insanity?

Incompetency means that at the time of trial you do not understand the nature of the proceedings against you or cannot assist your lawyer in preparing your own defense.

This postpones your trial.

If you are insane at the time of the crime, not incompetent, you may be found not guilty by reason of insanity. Note, this will still subject you to civil commitment if you are a danger to yourself or others.


What is diminished capacity in MA?

Mental illness that does not amount to insanity, but could reduce first degree murder to second degree murder (no premeditation) or to voluntary manslaughter (no malice).


Is voluntary intoxication a defense?

1. Only to specific intent.
2. Requires such severe prostration of the faculties that D cannot form the specific intent necessary.


Is infancy a defense?

Common Law = Rule of Sevens
1. No prosecution of someone under 7.
2. Rebuttable presumption against prosecution if under 14.
3. Prosecution allowed if over 14.

MA does not recognize this.


Is mistake a defense?

Mistake of fact may be.
1) A reasonable mistake of fact is a defense unless it is a strict liability crime.
2) An unreasonable mistake of fact is only a defense for specific intent.

See the minority rule for reasonable mistakes for statutory rape, but know that it is the minority rule.

Mistake of law is rarely a defense. It only works if knowledge is an element of the crime. That is, knowing the thing you are doing is a crime is a required element. e.g. Crime to sell fake x, y, or z, knowing it unlawful to do so.


When is self-defense available?

1. Non-deadly force is available if you are without fault and reasonably believe that you need to protect yourself from an imminent use of unlawful force against you.

2. Deadly force can be used only if you reasonably believe that you are being confronted with a threat of death or serious bodily harm, and you are without fault.

The "Initial Aggressor Rule" prevents someone who initiated the aggression unless he withdraws and communicates the withdrawal OR the initial victim escalates a non-deadly fight into a deadly one.

In most state retreat is not required and reasonable mistakes are a complete defense.

In most states, and in MA, an unreasonable mistake is no defense, but a minority of states will allow it as an imperfect self-defense and mitigate a murder to voluntary manslaughter.

In MA, it is required before using deadly force unless you cannot retreat to complete safety or you are in your home.
Also in MA, if a D's belief in the need to use deadly force is reasonable, but D uses excessive force in causing death, the crime is voluntary manslaughter.


When may law enforcement use deadly force?

When it is reasonable under the circumstances.


What is the necessity defense?

Conduct that is otherwise criminal is justifiable if D reasonably believed that the conduct was necessary to prevent a greater harm (not an equal harm).

1. Can't cause death to save property.
2. D is at fault for creating the situation giving rise to the choice of evils.


What is the duress defense?

It is a defense if D was coerced to commit a crime because of a threat from another person, of imminent death or seriously bodily injury to himself or a close family member.

However, you cannot use this as a defense to intentional homicide. "You kill him, or I kill you" = this will not work.


What is entrapment?

May be used as a defense if the criminal design originated with law enforcement and D was not predisposed to commit the crime. (This one is tough because D is often predisposed to commit the crime.)


T or F. In Massachusetts, there is no distinction among parties to determine liability for criminal acts.


Sometimes the labels are still used as an aid. When there is evidence that more than one person may have participated in the commission of the crime, a defendant is considered an accomplice if he knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense. An accomplice is guilty of the crime of the principal.


Does Massachusetts law provide a statutory basis for a diminished capacity defense?

A No, diminished capacity is not grounds for defense in Massachusetts.
B Yes, the diminished capacity defense has a statutory basis.
C No, but evidence which does not rise to the level of insanity may be submitted to reduce a killing from first degree murder to second degree murder.
D No, but evidence which does not rise to the level of insanity may be submitted to show proof that the defendant is not fit for trial.

C No, but evidence which does not rise to the level of insanity may be submitted to reduce a killing from first degree murder to second degree murder.


When considering whether a person who has used nondeadly force has done so properly in self-defense, a court must consider:

The intent of the attacking party.

Whether the person was lawfully entitled to be at the location of the attack.

Whether the person used the minimum amount of force possible in self-defense.

Whether the person used all reasonable means to avoid physical combat.

Whether the person used all reasonable means to avoid physical combat.

The elements of self-defense, where nondeadly force is used, are: (i) a reasonable concern for one’s personal safety; (ii) the use of all reasonable means to avoid physical combat; and (iii) the degree of force used must be reasonable in the circumstances, with proportionality being the touchstone for assessing reasonableness.


In Massachusetts, a viable fetus:

A Is not considered a human being for purposes of murder.
B Is not considered a human being for purposes of the vehicular homicide statute.
C Is considered a human being for purposes of murder only.
D Is considered a human being for purposes of both murder and the vehicular homicide statute.

D Is considered a human being for purposes of both murder and the vehicular homicide statute.


According to Massachusetts law, voluntary manslaughter:

A Occurs when a homicide charge is reduced due to provocation through spoken words from a third party.

Occurs when an individual uses excessive force in self-defense.

Is defined as a premeditated killing brought on by provocation from the victim.

Is defined by statute.

Occurs when an individual uses excessive force in self-defense.

In Massachusetts, voluntary manslaughter is judicially defined as a killing from a sudden transport of passion or heat of blood, on a reasonable provocation and without malice, or upon sudden combat. The use of excessive force in self-defense is voluntary manslaughter. Manslaughter is not statutorily defined under Massachusetts law. Additionally, words alone are not adequate provocation to reduce homicide to voluntary manslaughter.


Sitting in the driver's seat of a motor vehicle, which is parked on a public street, with a blood alcohol content of 0.08 is a violation of the Massachusetts OUI statute. True or false?

A True, because having a blood alcohol content of 0.08 or greater is a per se violation of the OUI statute.
B True, because sitting in the driver’s seat with the intent to operate a vehicle while under the influence of alcohol is a per se violation of the OUI statute.
C False, because the OUI statute requires the individual to have a blood alcohol content of 0.10 or greater.
D False, because the individual must be operating the vehicle to violate the statute.

D False, because the individual must be operating the vehicle to violate the statute.

False. The individual must be operating a vehicle in a place where the public has the right of access while under the influence of an intoxicant in order to impose liability for OUI. Operating a vehicle with a blood alcohol content of 0.08 or greater is a per se violation of the statute. Note that the shifting of a car’s gears can constitute operation even if the engine is not running.