Drivers should be aware that it is possible to be arrested and prosecuted for DUI in Massachusetts even when you are not caught driving. To support a conviction, the prosecution must prove that the defendant operated a motor vehicle on a public way or where the public had a right of access, while his or her ability to drive safely was diminished by reason of alcohol. The police and DUI prosecutors have obtained drunk driving convictions in cases where officers have not actually observed the person driving. Just sitting in a car with the keys in the ignition and engine running qualifies as “operation” under Mass. DUI Law.

In one Massachusetts drunk driving case, for example, a driver felt that he was under the influence and he pulled over and stopped his car in a shopping center parking lot. He was convicted and the Mass. Appeals Court rejected his argument that he should not have been held criminally responsible because he pulled off the road and stopped driving. In rejecting this argument, which is known as the “shelter defense” the court held that he should have anticipated his incapacity and not started to drive.

In Massachusetts DUI cases, proof of operation of a motor vehicle may rest entirely on circumstantial evidence. This rule may present an obstacle for even the best Massachusetts DUI lawyers. Where the police find an intoxicated driver even near a vehicle which had recently been driven, it is possible to convict the individual for DUI. For example, in one case the police found an intoxicated man walking near his car which had struck a curb. Although they did not see him driving, he was convicted of operating under the influence. In another Mass. DUI case, a person was convicted of OUI when a Massachusetts State Trooper found him sitting in the driver’s seat, apparently asleep and slumped over onto the passenger side of the vehicle. The car’s engine was running and the keys were in the ignition.

In another Massachusetts drunk driving case, a person suspected of driving under the influence of alcohol returned to the scene of an accident to pick up his car. The engine was still warm when police arrived, the DUI suspect was registered owner of the car, he lived in the neighborhood of the crash, and he had the car keys. Without anyone having actually seen him drive the car, he was able to be convicted of operating under the influence.

In another case, a Mass. State Trooper came upon what appeared to be a disabled motor vehicle.  The trooper observed the drunk driving suspect in front of the truck holding a gas can. The truck partially blocked the exit ramp to the highway and the keys were in the ignition and turned to the “accessory” position, so that the tuck’s interior lights were on. It was ruled that this was sufficient evidence of operation for the purposes of obtaining a DUI conviction.

These cases show how “operation” one of the required elements of a Massachusetts DUI conviction can be proven through circumstantial evidence and inferences drawn therefrom. It is not necessary to be found actually driving a vehicle to be convicted of operation in Massachusetts.