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OUI not on public way in parked car in Massachusetts?

Hi. Couple weeks ago I was sitting in my car that was parked in my yard about thirty yards from the street on private property. I had the engine on and was listening to the radio while drinking a few beers. Quite a few actually. My question is whether I could get arrested for OUI for sitting in a car that was not moving on my property while probably legally drunk? Is that possible in Massachusetts? I ask because a cop that I have a history with drove by while I was drinking and gave me a look like he wished he could do something about me. I had a six pack sitting on the roof of the car at the time and one open in my hand,

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You are really asking two different questions.  First, one of the elements of OUI in Massachusetts requires the state to prove that the defendant was operating a vehicle on a public way.  You were thirty yards from the street and, therefore not on a public way or on a way or path that the public might have (legal) access to. 

Your second question is a bit different.  In Massachusetts it is possible to get arrested and convicted for OUI even your if car is not moving, or is parked, on or near a public way.  Under recent Massachusetts case law (see the link above), it is enough that the vehicle is on a public way and the driver has inserted the key in the ignition and turned the engine on.  Even if the key is only partly turned so that the electrical system is on but the car engine is not running (as would be the case in your hypothetical) the element is satisfied.  But, again, the car must be on a public way. Your car was not.  Hope that answers your questions.

Submitted Tue, 12/27/2011 - 15:01

Operation on a public way is a required element of the crime of operating under the influence and it must be proven beyond a reasonable doubt. Keys in the ignition & engine running constitute "operation" under the law. In order to sustain an OUI conviction, the Commonwealth must prove that the offense took place “upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees.” G.L. c. 90, § 24(1)( a )(1). “Way” is further defined by statute to include “any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.” G.L. c. 90, § 1. This element has been further interpreted by the Supreme Judicial Court to require that the “public have a right of access by motor vehicle or access as invitees or licensees by motor vehicle.” Your yard is not a public way or a place where the public has right of access. See Commonwealth v. Lisa Virgilio, 2011 WL 1988395.

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