If you’ve been drinking and start to drive home in Massachusetts, you can forget the age-old advice about pulling over and sleeping it off, that is if you remain behind the wheel with your engine running. Thanks to the Mass Appeals Court’s recent ruling in Commonwealth v. McGillivary , 09-P-507 (January 25, 2011), where the Court concluded that simply placing a key in the ignition and turning it can constitute the required statutory element of operating a motor vehicle, such advice is both obsolete, ill-advised and unavailing in terms of trying to avoid a possible OUI conviction. Of course the Commonwealth still has to prove that operation was "upon any way or in any place to which the public has right of access...or in any place to which the public have access as invitees or licensees..." beyond a reasonable doubt, as well as actual intoxication beyond a reasonable doubt (remember, the blood/alcohol threshold is now .08). Still, the fact that operation can now be construed from merely placing a key in the ignition and turning it, because doing so is "...an act which the jury could have found to be the first step in a sequence to set in motion the motive power of the vehicle...", means that being in a car in any location where the public has access, or is invited to have access (think Walgreens parking lot), behind the wheel with the engine running, can result in a criminal conviction and up to 2 ½ years in jail and a 1 yr loss of license, even where the vehicle was never moving. It is as critical that the public now know this and take appropriate and responsible measures accordingly as it is for all licensed Massachusetts’ drivers to know one has the absolute right to refuse a breathalyzer and should so refuse any time one has been drinking and is driving (understanding that doing so will result in an automatic suspension of one’s license), as well as the absolute right to refuse to perform field sobriety tests at the scene of the automobile stop, when requested to do so by the arresting officer.
If you have been accused of a crime and you need a lawyer to represent you please contact Brad Bailey at 781-589-2828