Negligent operation of a motor vehicle and operating under the influence (OUI) are two of the most commonly charged crimes in Massachusetts district courts. As their names suggest, both crimes require that the defendant operated a vehicle.
The meaning of the word “operate”—in the context of negligent or drunk driving—has been the subject of innumerable trials and appeals.
What follows are quotes from the Commonwealth’s model jury instructions and several key opinions on the topic.
Operation by starting ignition or shifting gears:
The law is that a person is “operating” a motor vehicle whenever he or she is in the vehicle and intentionally manipulates some mechanical or electrical part of the vehicle — like the gear shift or the ignition — which, alone or in sequence, will set the vehicle in motion.
Model Jury Instruction 3.200
Operation without running engine:
To operate a motor vehicle upon a way in violation of the statute [M.G.L. c. 90, § 24], it is not necessary that the engine should be running. The engine of a motor vehicle may cease to run while it is going down a hill, but the vehicle may remain within the control of the driver and he may operate it, under these conditions. The statute was passed for the protection of travellers upon highways, and such a vehicle may be operated when standing still.
Commonwealth v. Clarke, 254 Mass. 566, 568 (1926).
Operation while driver is sleeping in a stationary but running vehicle:
An inference that the defendant intentionally started the engine reasonably may be drawn from his being seated in the driver’s seat with the engine running and a key in the ignition. It is also reasonably inferable that he fell asleep while the engine was running and when he was under the influence of alcohol.
Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 320 (1994).
Operation by circumstantial evidence:
You may find that the defendant was the operator of the motor vehicle even if no witness saw him (her) driving the vehicle, if there is enough circumstantial evidence to prove to you beyond a reasonable doubt that the vehicle was operated and that the defendant, and no one else, was the operator of that vehicle.
Model Jury Instruction 3.200
And my personal favorite,
[OUI cases] are not to be tried with an ostrich-like attitude — one’s head in the sand. Defendant’s car didn’t reach the position where it was found by some magical process; no figure from outer space dropped it from the sky to Memorial Drive at its intersection with Bizarre Avenue, where it was found by the State Trooper; it had to have been `operated’ by someone to get it to the place where the Trooper found it, with defendant in it. The evidence clearly indicated it was practically, if not wholly, impossible to conceive that any person, other than the defendant, could have gotten into the driver’s seat, manipulated the gears and driven it to the spot where it was found, with the defendant sitting as he was in relation to the driver’s seat and with his feet situated as they were.
Commonwealth v. Hilton, 398 Mass. 63, note 5.