OUI in a Parked Car: The Operation Element in Massachusetts

By Attorney Joe Serpa | Georgetown University Law Center | Massachusetts Criminal Defense Since 1995

Clients arrested in a parked car often ask how the Commonwealth can prove operating under the influence when the car never moved. Massachusetts defines operation broadly. In a 2025 decision, the Supreme Judicial Court confirmed the scope of the definition. This post explains the operation element of an OUI charge and how the defense approaches it.

What Operation Means

Under G. L. c. 90, § 24, a person operates a motor vehicle by intentionally doing something that could set the vehicle in motion, whether by itself or as one step toward setting the vehicle in motion. Commonwealth v. Uski, 263 Mass. 22 (1928). The vehicle does not have to move.

A vehicle may be operated while standing still, and the engine does not have to be running. Commonwealth v. Clarke, 254 Mass. 566 (1926), citing Commonwealth v. Henry, 229 Mass. 19 (1917). The definition of operation covers a vehicle at rest, because an impaired person behind the wheel may set a stationary vehicle in motion.

The Wurtzberger Decision

The Supreme Judicial Court applied the definition of operation to a stationary vehicle in Commonwealth v. Wurtzberger, 496 Mass. 203 (2025). An impaired person sat in the driver’s seat of a van with the key turned far enough to power the radio.

The engine was not running. The driver’s side door was blocked by a tree. The court held that the evidence was sufficient to prove operation, because turning the key to power the vehicle’s electrical system is an act that could contribute to setting the vehicle in motion. The court explained that a person who turns the key and then remains in the driver’s seat continues to operate the vehicle, whether or not the person intends only to use the vehicle as a stationary platform.

What the Commonwealth Must Still Prove

Operation is only one element of the offense. The Commonwealth must also prove that the operation occurred on a public way, or in a place where the public has a right of access. In addition, the Commonwealth must prove that the person was under the influence of alcohol or drugs or had a blood alcohol level of .08 or greater. The proof of operation is often circumstantial. The location of the vehicle, the position of the keys, the temperature of the engine, and the person’s own statements can each support an inference that the person operated the vehicle.

How the Defense Approaches Operation

Operation is frequently the contested element when the police find a driver parked, stopped on the shoulder, or asleep behind the wheel. The defense examines whether the evidence shows an intentional act to engage the vehicle rather than mere presence in it, whether another person may have driven, and whether the Commonwealth can prove operation on a public way. Weak proof of operation can support a motion for a required finding of not guilty. The same operation standard governs other driving offenses. The same analysis applies to related charges.

Attorney Serpa defends operating under the influence cases across the Massachusetts District Courts and the Boston Municipal Court. For a confidential consultation, call 617.936.0201, or read more about Massachusetts OUI defense.