Can You Be Convicted of OUI While Parked? The Massachusetts SJC Says Yes
Commonwealth v. Wurtzberger, decided in June 2025 by the Massachusetts Supreme Judicial Court (SJC), is a powerful reminder that you don’t have to be driving to be convicted of Operating Under the Influence (OUI) in Massachusetts. This case answers a critical question in OUI defense: When is someone actually “operating” a vehicle under the law?
At Benzaken, Maguire, Sheehan & Wood, LLP, a top-rated Boston criminal defense firm with decades of experience in OUI defense, we’re closely following how the Massachusetts courts define “operation.” The Wurtzberger decision has real implications for how we defend clients arrested while parked, pulled over, or even sleeping in their cars.
If you’ve been arrested for OUI in Massachusetts—whether your car was moving or not—you need to know what this decision means for you.
The Facts: A Parked Van, a Key in the Ignition, and a Highly Intoxicated Driver
On a September afternoon in 2021, a concerned neighbor in Bourne, Massachusetts, called the police about a rental van that had been parked in a municipal lot for several days. The caller reported that two men were sleeping in the van and urinating in public.
When police arrived, they found Michael J. Wurtzberger in the driver’s seat. The key was in the ignition, and the radio was on, but the engine wasn’t running. An “almost overwhelming” smell of alcohol came from the defendant’s breath. His eyes were red and glassy, and he slurred his speech. There were two handles of vodka inside the van—one full, one empty.
When asked to exit the van, Wurtzberger couldn’t open the door due to a nearby tree. The officer asked him to put the vehicle in drive and move forward a few feet. Wurtzberger complied, then nearly fell when exiting. He failed several field sobriety tests and was arrested for OUI, 5th offense, and OUI with a license suspended for OUI.
The Legal Issue: Was This “Operation” Under Massachusetts Law?
At trial, Wurtzberger’s lawyer argued that the Commonwealth didn’t prove “operation,” one of the key elements of an OUI charge under G.L. c. 90, § 24.
In Massachusetts, a conviction for OUI requires proof beyond a reasonable doubt that:
The defendant operated a motor vehicle;
On a public way; and
Was under the influence of alcohol or drugs.
The defense claimed Wurtzberger wasn’t operating the vehicle because the engine wasn’t running, and there was no proof he was intoxicated at the time the van was last moved.
But the SJC disagreed.
What the SJC Held: Yes, He Was Operating the Vehicle
In a detailed opinion written by Justice Wendlandt, the SJC upheld Wurtzberger’s convictions. Here’s why:
1. “Operation” Doesn’t Require a Moving Vehicle
The Court reaffirmed a long-standing principle: you don’t need to be driving for the Commonwealth to prove operation.
The Court cited nearly 100 years of precedent holding that operation includes:
“Any act or use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle.” (Commonwealth v. Uski, 263 Mass. 22 (1928))
That includes:
Turning the key in the ignition;
Shifting gears;
Turning on the electrical system (even if the engine stays off).
In Wurtzberger, the key was turned, and the radio was on, which the Court held constituted operation—even if the engine never started.
2. Operation Includes Sitting Behind the Wheel Intoxicated
The Court found that Wurtzberger’s intoxication at the time the key was turned was enough to prove OUI. Even if he didn’t drive while drunk, he was in control of the vehicle’s machinery while impaired.
Critically, the Court emphasized the public safety risks:
“The public hazard contemplated by G.L. c. 90, § 24, extends beyond intoxicated drivers of moving vehicles.” (Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 321 (1994))
Even someone sleeping in the driver’s seat with the engine off can pose a danger if they wake up and decide to drive.
3. Movement Is Not Required
Even though Wurtzberger did put the van in drive at the officer’s request, the Court said that didn’t even matter. The key act of turning the ignition—combined with being behind the wheel while intoxicated—was enough.
Why This Case Matters for OUI Defense in Massachusetts
At Benzaken, Maguire, Sheehan & Wood, LLP, we’ve defended hundreds of OUI cases, including those involving parked vehicles. The SJC’s decision in Wurtzberger reinforces several important lessons:
1. You Can Be Arrested for OUI in a Parked Car
Even if your car isn’t moving—even if it’s not running—you can still be charged with OUI. If the key is in the ignition or you’ve engaged any system that could lead to operation, prosecutors will argue that you were operating under the statute.
Pro tip: If you’re intoxicated, don’t sit behind the wheel—even just to charge your phone or listen to music. The courts see this as a public safety risk.
2. “Sleeping it Off” Is Risky
Some people believe that if they sleep in their car to sober up, they’re doing the responsible thing. That may be true morally—but not legally. Massachusetts courts have repeatedly ruled that sleeping in the driver’s seat with the key nearby can amount to operation.
We help clients fight these charges when the intent was clearly not to drive, but the law doesn’t always align with common sense.
3. Field Sobriety Tests Still Matter—Even Without Driving
Wurtzberger’s conviction was bolstered by his failure to perform sobriety tests, his slurred speech, and the presence of vodka bottles. These facts helped the Commonwealth prove intoxication, even if he didn’t drive the van in front of a witness.
For that reason, we always advise clients to exercise their right to remain silent and not perform field sobriety tests, especially if there’s any doubt about physical ability (e.g., recent surgery, disability, age).
Key Takeaways from Wurtzberger
The Wurtzberger case makes the law clear: you can be convicted of OUI without ever putting your vehicle in motion.
The following facts, if proven, may support an OUI conviction in a parked car:
Key in the ignition or “on” position
Vehicle systems (radio, lights, etc.) activated
Driver seated behind the wheel
Driver visibly impaired or intoxicated
Alcohol containers in the vehicle
If the Commonwealth can show you were in control of the vehicle’s functions while impaired—even with no engine movement—they may win a conviction.