The Kickham Comment - Boston Criminal Attorney Blog
I have a very interesting case development to report today in the area of drunk driving in Massachusetts. As a Dedham, Massachusetts OUI/DWI defense lawyer, I’m often asked “What happens if a person is found by a police officer to be drunk and sitting in the driver’s seat of a car, but the car is parked and the engine is turned off? Can you be charged with drunk driving in Massachusetts under those circumstances?”
I’ll get to this in a moment, but first, it’s important to understand that a person can always be charged with OUI/DWI – or with any crime: Whether those charges will stand up in court, is an entirely different question, and that’s why you should always have an experienced and talented OUI defense attorney represent you if you’re ever charged with this crime.
Now, to answer the question: Prior to this past week, the correct legal answer to this question was always as follows: If the engine was not running, then the “Operation” element of the charge could not be sustained, and hence the case would almost certainly have to be dismissed. That is, one of the requisite elements of this crime, articulated in Massachusetts General Laws. Chapter 90 Sec. 24, is that the defendant must have been “Operating” the vehicle at the time he was arrested. “Operation” always meant a number of different things under both statutory and case law, but central to the prosecution satisfying that element, was that the driver’s key had to be in the ignition, in the “Engine On” position, and the engine had to be running. Hence, if a police officer found someone parked on the side of a public way and suspected the driver was operating under the influence of alcohol or other drugs, and the driver’s key was in the ignition but the engine was not running, then that person could not be convicted of OUI/DWI, because the statutory requirement of “Operating” the vehicle would not have been satisfied. As long as the engine was not engaged or running, a defendant could not be successfully convicted of OUI/DWI.
That has now changed, in a ruling of first impression handed down earlier this week by the Massachusetts Appeals Court. In Commonwealth vs. Robert S. McGillivary, Appeals Court Case No. 09-P-507, the court ruled that a defendant who was found by police slumped over the steering wheel of a vehicle, with the key in the ignition but with the engine not running, was properly charged with operating under the influence of alcohol. As anyone who has ever driven a car knows, there are three positions in any standard vehicle ignition switch: 1) “Off” (Allowing the key to be extracted); 2) “Accessory” position, which allows electricity to power accessories such as the radio; and 3) “Engine On” position, which, of course, is the position the key is in when the engine is engaged and running. Here, the defendant was found by police to be under the influence, but he argued that since the ignition key was not in the “Engine On” position, but only in the “Accessory” (electricity on) position, and the engine was not running, he could not be properly convicted of the “Operation” element required under Section 24 of Massachusetts General Laws. Chapter 90.
Surprisingly, the Appeals Court disagreed with the defense counsel’s argument on this point (stunning him, I’m sure.) Writing for the court, Judge Gary S. Katzmann found that, under the Supreme Judicial Court’s 1928 decision in Commonwealth v. Uski, “‘[a] person operates a motor vehicle within the meaning of G.L.c. 90, §24, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle.” Katzmann wrote that, “As a matter of law, the evidence that the defendant, who was found in the passenger’s seat, turned the ignition key – an act which the jury could have found to be the first step in a sequence to set in motion the motive power of the vehicle – was sufficient to permit the jury to conclude that he ‘operated’ the motor vehicle,”
This important decision marks an extremely important change in the law governing Massachusetts drunk driving offenses, one that many people should know about. If you or someone you care about has been arrested or is facing a Massachusetts OUI/DWI offense, contact us for a free consultation. As Massachusetts OUI attorneys, we have practiced for over twenty years in this area of law, and we know how to very effectively defend these types of cases. As you can see with this decision, the courts are continuing the trend of becoming very strict and aggressive with these types of cases. There may be a lot of good reasons for this, but regardless, any defendant facing these types of charges needs the best lawyer he or she can find.
Don’t take chances: Contact us for a free consultation. We know how to get you to the best legal outcome possible, and we have the results to prove it.