After a party over the weekend I was sitting outside my friend's house in the driver's seat of my car. I was well and truly drunk, but I was just sleeping and did not drive the car anywhere. I decided I couldn't do it after the party and didn't want to get an operating under the influence charged against me. About five in the morning a cop knocked on the window "to see if I was OK" and he could smell alcohol and asked me if I'd been driving. I told him no and that I was just sleeping. He said I should sleep somewhere else and that it's possible to be sitting in a car that is not moving and still be convicted of OUI in MA. Is that so? Thanks in advance.
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Operating under the influence and MA law
Yes it is. There are actually a number of scenarios in which a person who is not actually driving a car, but is drunk, could be convicted of operating under the influence under Massachusetts law. Usually these scenarios involve situations where the officers (and later a jury) could infer that the defendant had been driving under the influence, even though the car was no longer mobile. I don't believe the facts you describe would result in a conviction, but there was a recent Massachusetts Appeals Court decision that set the bar pretty low. In Commonwealth v. McGillivary (2011), the defendant acknowledge that he was under the influence of intoxicating liquor and that his vehicle was on a public way (two elements of the crime described in Massachusetts General Laws Chapter 90, Section 24), but denied that he had "operated a motor vehicle," as required for a conviction.
The defendant was sitting in his car, slumped over the wheel with his keys in the ignition. However, the key was only turned part of the way, to the point where the electrical systems were activated but the engine was not on. So the issue was whether, as a matter of law, the defendant was "operating a motor vehicle." The Court held that the defendant's act, in inserting the key and turning it, was a "part of a sequence that will set in motion the motive power of the vehicle." That reasoning was based on Commonwealth v. Uski, 263 Mass. 22, 24 (1928), in which the Massachusetts Supreme Judicial Court held that "[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."
Hope all that helps.