Appeals Court (January 25, 2011)

Evidence of an impaired person in the driver's seat, slumped over the wheel of a parked vehicle, with keys in the ignition with the electricity on, but not the engine, is sufficient for a finding of operation.

The police found the defendant, who was under the influence of alcohol, slumped over the wheel of a parked motor vehicle, with the key turned enough to put the electricity on but not the engine. After trial, the defendant was convicted of a fourth offense Operating Under the Influence (OUI). He appealed his conviction, arguing that the evidence of operation was insufficient as a matter of law. He argued that putting a key into the ignition and turning it does not constitute operation when the engine was not engaged.

As this was an issue of first impression, the Court looked to Commonwealth v. Uski, 263 Mass. 22 (1928), which held that "a person operates a motor vehicle within the meaning of G.L. c. 90, § 24, when, in the vehicle, he intentionally does an act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle." The Uski case, coupled with the public policy underlying the Massachusetts OUI Statute, led the Court to conclude that "turning the key in the ignition to the "on" setting could be found to be part of a sequence that would set the vehicle's engine in motion and that would, thus, constitute operation."

Note: Footnote 8 reads: "We do not decide whether any or all of the following could be found to be operation under G. L. c. 90, §24: inserting a key in the ignition without turning it and without engaging the motor or the vehicle's power; using an electronic remote starting device to start the engine of the car without inserting a key in the ignition, where putting a key in the ignition would be required to actually drive the car; or putting the key in the ignition to engage either the electricity or the motor before going to sleep in a seat other than the driver's seat."