Negligent Operation Serving Clients From The Berkshires to Boston

Negligent Operation & Operating to Endanger

Defending Against a Negligent Operation Charge

Negligent operation of a motor vehicle -- also known as operating to endanger -- is a misdemeanor criminal offense with the potential penalties including imprisonment, fines, and the potential loss of license. G.L. c. 90 § 24(2)(a). In Massachusetts, the offense is frequently charged as a companion charge in OUI cases if the police allege, for example, to have observed you swerving between lanes, driving through a stop sign, or if you have been involved in an accident. Although the charge of negligent operation is a criminal offense, it is considered to be a lesser charge than OUI.

Just like any criminal charge, there are elements that the prosecution must be able to prove beyond a reasonable doubt in order to convict you of negligent operation of a motor vehicle. An element is a component of a crime, and usually there are multiple elements or components that make up a crime. A prosecutor must present evidence of a set of facts to prove that each and every component had occurred in order for you to be convicted or found guilty of that crime.

If a prosecutor fails to or is unable to provide evidence of any one of the elements or components, they will not be able to meet their burden of proof under the law. If the prosecutor is unable to meet their burden of proof, you cannot be found guilty of the crime.

In Massachusetts, a prosecutor must prove the following three elements beyond a reasonable doubt in order to obtain a conviction for negligent operation:

  • Operation of a motor vehicle

  • On a public way

  • The operation was reckless or negligent so as to endanger the lives or safety of the public.

If you are charged with both OUI and negligent operation, these elements must be proved separately from your OUI charge and are highly defensible.

Negligent Operation in Massachusetts

A charge of negligent operation is based on the manner in which the police believe you operated your vehicle. Depending on the reason the police stopped you, such as speeding, illegal passing, or running a red light, or if an accident occurred, you may be charged with negligent operation independently or in addition to OUI. However, the fact that you may have operated under the influence does not necessarily establish negligent operation. In order to convict you of negligent operation, the prosecution bears the burden of proving some issue with the actual operation of the vehicle.

Negligent operation is defined under Massachusetts law as operation that is reckless or negligent in a way that endangers the lives or safety of the public. G.L. c. 90 § 24(2)(a). It is not necessary for there to have been an accident, injury, or property damage for you to be charged. In fact, you can be charged even if you were the only vehicle on the road. Though under the same statute, there are different standards for negligent and reckless operation, and both require the prosecution to meet a heavy burden.

What Does “Negligent” Operation Mean?

You drive negligently when you fail to use due care, meaning that you drive in a way that a reasonable person would not under the same circumstances. It could be that you do something a reasonable person would not do, or that you did not do something that a reasonable person would do. Either way, negligent operation means driving in a manner that puts the public in danger -- a danger that could be avoided by driving more safely. Unlike with reckless driving, it is not necessary that you intended to drive in a dangerous manner. Negligence is viewed objectively. Factors considered when determining if you drove negligently include speed, weather and road conditions, vehicle condition, whether other vehicles or pedestrians were on the road, and how others around you were driving.

Any one of the factors for negligent operation, by itself, is generally not sufficient to show that you in fact drove negligently. For example, in Massachusetts, speeding alone cannot constitute negligence. Commonwealth v. Ross, 92 Mass. App. Ct. 377, 385 (2017). Exceeding the speed limit by a few miles per hour could earn you a citation but does not, without more, necessarily equate to negligent operation. Speeding on a two-lane road may not be negligent, but doing so at night, where there are no street lights, and in snowy conditions may be. Similarly, operating under the influence does not automatically mean you were negligent, although the fact that you consumed alcohol prior to driving could be relevant in making a negligence determination. Commonwealth v. Woods, 414 Mass. 343 (1993). Even the fact that an accident occurred, without more, is not sufficient to show negligence on the part of the operator. Aucella v. Commonwealth, 406 Mass. 415, 419 (1990).

What Does “Reckless” Operation Mean?

Reckless operation is more extreme than negligent operation. Prosecuting someone for reckless operation places a significantly high burden on the government. You drive recklessly when you drive in a dangerous manner with willful and wanton disregard for the safety of others. This means driving in a way that you knew or should have known was likely to cause serious injury or death. Examples of reckless driving could include excessive speeding or street racing, unsafe swerving in and out of traffic, and illegal passing. There are, however, certain circumstances where this type of driving may not be reckless, if, for example, you were facing a life-threatening emergency or other serious emergencies. It is important to have an attorney who can evaluate the circumstances and argue your conduct was indeed not reckless.

An important aspect of reckless driving is it requires an intent to act or drive a certain way. It does not, however, require an intent to actually cause harm or injure anyone, nor does it require that any such harm or injury actually occur. Proving someone’s subjective or personal intent is a high bar, and there are many ways to challenge the prosecution’s claim regarding what you intended.

How Can We Help?

Our firm will evaluate the facts and circumstances of your particular case to determine what defenses you have to the charge of negligent operation. For instance, if police pulled you over after reports of erratic driving but the officer didn’t necessarily witness the erratic driving, you may have a strong defense against the charge. Additionally, if you were involved in an accident, we will closely examine all factors that could have contributed to your situation, not just those detailed in the police report. In many cases, we are able to have the negligent operation charge dismissed, reduced to a fine, or continued without a finding (CWOF).

Penalties for Negligent Operation

Under G.L. c. 90 § 24(2)(a), the penalties for a negligent operation conviction include:

  • Fines ranging from not less than $20 but not more than $200; or

  • Imprisonment for not less than two weeks but not more than 2 years in the house of corrections;

  • Or both

Additionally, if you are convicted of negligent operation, the RMV will revoke your license for 60 days for a first offense, and one year for subsequent offenses. Revocation is mandatory unless the court recommends otherwise.

Although these penalties appear steep, there are alternative ways to resolve this type of criminal offense without any conviction and without any loss of license. A charge of negligent operation can often be resolved as a continuation without a finding, or CWOF. This is a common outcome for those with limited or no criminal history and for matters that do not involve serious accidents. If you accept a CWOF, no guilty finding will enter against you. You may be required to be on probation for a period of time, and in some instances you may be required to complete certain types of driving classes or comply with other conditions. However, once your probation period is complete and all conditions are satisfied, the charge is legally dismissed, leaving you with no criminal record and no loss of license. Because these alternative dispositions are extremely favorable, it is critical that you have an attorney who knows how to successfully defend against your charges.

Lawyers With Experience Defending Against Negligent Operation

The Massachusetts DUI lawyers at The Law Offices of Joseph D. Bernard P.C. have an in-depth understanding of what it takes to successfully defend against a negligent operation charge. The specific facts and circumstances of your case must be closely evaluated to determine the best course of action. If you are charged with an OUI and negligent operation, or negligent operation by itself, it is imperative that you have experienced lawyers working to prepare your best possible defense.

Contact The Law Offices of Joseph D. Bernard P.C. for a free case consultation!

Lawyers Who Provide a Scientific Defense

  • Trained Breath Test Machine Operator

    Attorney Joseph D. Bernard is the only lawyer in Massachusetts to have completed the breath test training conducted by the state police.

  • Certified Field Sobriety Test Administers

    Our attorneys are certified administers of the field sobriety test by the National Highway Traffic Safety Administration.

  • Former Assistant District Attorney

    We understand OUI cases from both sides of the fence and know exactly how to defend our clients.

  • Unique Certification & Expertise

    Attorney Joseph Bernard is the only lawyer in Massachusetts to be certified by the international acclaimed Borkenstein drug and alcohol courses.

Meet The Law Offices of Joseph D. Bernard P.C.

The Pinnacle of Drunk Driving Defense
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