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Massachusetts Drug Violation Applies Only to “Public” Playgrounds

The Massachusetts controlled substance laws punishes with enhanced penalties those persons who violated the drug laws for the sale or distribution of drugs within 100 feet of a “public park or playground”. This week, the Massachusetts Appeals Court ruled that a defendant cannot be criminally liable if he distributes drugs within a park or playground that is NOT “public”, even if it is accessible to members of the public.

In the case of Commonwealth v. Gopaul, the defendant was convicted for selling marijuana to an undercover police officer within 100 feet of an outdoor playground at the Windsor Meadows Apartment Complex, a private apartment complex in Marlborough, Massachusetts. The playground was not fenced in and, arguably, anyone could enter the playground.

The defendant challenged his conviction after trial, arguing that the Drug Distribution Near School Zone, Park or Playground Statute in Massachusetts General Laws Chapter 94C, section 32J, applies only to “public” playgrounds, not those that are on private property.

Persons convicted of the sale or distribution of drugs within 100 feet of a park or playground are subject to an automatic ‘from and after’ sentence.  The statute reads that a violation occurs if “within one hundred feet of a public park or playground…”

The statute, however, does not define what is “public”.  The appeals court therefore looked to determine what the intent of the Massachusetts Legislature was when it enacted and constructed the language of the statute.  In so doing, the appeals court determined that the use of the term “playground” must be understood in conjunction with the language a “public park”.  The term “playground” then, was interpreted to mean “public playgrounds”.

Because the Massachusetts Legislature, by its language in the statute, failed to draw a distinction between playgrounds that are owned by private or public entities, the appeals court reasoned, without any specific direction, it was constrained to rule that even private owned playgrounds fall outside the statute and a person cannot be convicted for this drug violation if the playground was privately owned – even if members of the public had access to it.

Given the court’s ruling, it is expected that the Massachusetts Legislature will amend the statute to also include privately owned parks and playgrounds in order to resolve the current ambiguous language.  Until then, persons who have been charged with a park or playground violation under section 32J should take a close look at whether the subject premises are public or privately owned.  If the alleged transaction occurred on a privately owned park or playground, they may have a viable motion to dismiss the charge.

Boston Criminal Lawyer Lefteris K. Travayiakis is available 24/7 for consultation on all Massachusetts Drug Crimes Charges, and can be reached directly at 617-325-9500 or by Contacting Attorney Lefteris K. Travayiakis Online.