Motor vehicles – OUI – ‘Operation’

Listen to this article

Where a defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI), the conviction should be affirmed because the evidence was legally sufficient to show that the defendant “operated” the vehicle while under the influence.

“The defendant was found behind the wheel of a large automobile. The vehicle was parked on a public way, the key was in the ignition, and the radio was on, although the engine was not running. The defendant’s ability to drive was impaired by alcohol. This case presents the question whether the evidence was legally sufficient to show that the defendant ‘operated’ the vehicle while under the influence of intoxicating liquor (OUI) in violation of G.L.c. 90, §24(1)(a)(1) (OUI statute). We conclude that it was and affirm the defendant’s convictions. …

“… We have understood for more than a century the statute to be ‘broad enough to include automobiles at rest, as well as in motion’ because the hazard to public safety that intoxicated operators pose extends beyond drivers of moving vehicles. …

“We turn to the defendant’s contention that the evidence that the key was in the ignition and turned sufficiently to engage the van’s battery and provide electrical power to the radio shows only that he was using the van ‘as a stationary platform.’ To begin, the evidence does not support the use of the van as a stationary platform. The defendant was seated behind the wheel while the driver’s side door was blocked by a tree, preventing him from entering or exiting the vehicle, and the defendant’s immobility prevented him from moving within the van. The record thus supported a reasonable inference that the defendant recently had moved the van and was not using the van as a stationary platform.

“More importantly, however, evidence of operation is sufficient once an individual in the driver’s seat of a vehicle intentionally performs ‘any act,’ such as turning the ignition key, that ‘alone or in sequence will set in motion the motive power of th[e] vehicle,’ regardless of whether an individual intends simply to sit in the driver’s seat and use a vehicle as a stationary platform. … If the individual is intoxicated at the time he performs this step, the evidence of operating while intoxicated is sufficient to withstand a motion for a required finding of not guilty. And, if the individual takes these measures and then proceeds to become intoxicated from his driver’s seat post, the result is unchanged; in other words, after the defendant here turned the key, he continued to operate the vehicle and, as detailed infra, the evidence of his intoxication while he was thus operating the vehicle was sufficient. …

“Here, the defendant was physically incapable of moving from one seat to another in the van and was intoxicated in the driver’s seat with the key in the ignition and the radio on. On this record, the jury could reasonably infer that the defendant intentionally turned the key — a mechanical step that ‘alone or in sequence will set in motion the motive power of th[e] vehicle.’ … And because the defendant was intoxicated in the driver’s seat while the key remained so turned, there was sufficient evidence that he operated the vehicle ‘while under the influence of intoxicating liquor’ (emphasis added). G.L.c. 90, §24(1)(a)(1).”

Commonwealth v. Wurtzberger (Lawyers Weekly No. 10-079-25) (12 pages) (Wendlandt, J.) The case was tried before Lisa F. Edmonds, J., in District Court. Genevieve K. Henrique (Matthew J. Schmitt also present) for the defendant on appeal; Rose-Ellen El Khoury for the commonwealth (Docket No. SJC-13722) (June 24, 2025).

Click here to read the full text of the opinion.