In Massachusetts, operating a motor vehicle includes much more than the act of driving. According to the instructions read to the jury, operating a motor vehicle includes "doing all of the well-known things that drivers do as they travel on a street or highway, but also when doing any act which directly tends to set the vehicle in motion." Courts have interpreted this to a very broad extent, in one case determining that a person was operating a vehicle even when found "asleep behind the wheel of a vehicle parked on a public way, with the key in the ignition and the engine on." So the next time your on your way home and start to feel the affects of alcohol, even though pulling over and taking a snooze may seem like the moral thing to do, you could still be arrested for OUI. So make sure you get in the back seat, at least, before taking a snooze.
This is usually not an issue, but a public way is defined as "Any street or highway that is open to the public and is controlled and maintained by some level of government." The test is whether the offense occurred at a location where the general public has a right of access. Doing donuts on your neighbor's front lawn while intoxicated is not OUI (though it would likely be several other offenses), because a front lawn is not a public way -- a place where a public has a right of access. Any areas that are paved, maintained by the city or state, illuminated, and have traffic signs are all indicators that the location would qualify as a public way, including parking lots.
Under the Influence of Intoxicating Liquor...
It is not illegal in the Commonwealth to consume alcohol then drive a motor vehicle. It is illegal to consume alcohol to such an extent that your ability to operate a motor vehicle safely is diminished by decreasing your alertness, judgment, and ability to respond promptly. The prosecution does not have to prove that you are drunk. To demonstrate your diminished capacity, they introduce evidence of the officer's observations of your driving, the odor of your breath, slurred speech, spirit of cooperation (or lack thereof), general appearance (e.g., glossy eyes), and your ability to perform various roadside sobriety tests, including a portable breath test. You have the right to refuse to perform these tests, and your refusal cannot be introduced as evidence of your guilt in Massachusetts courts (other states may differ). That said, these tests must be administered by strict standards, and often officers deviate from those standards subjecting the results to attack by the defense.
...OR with a blood-alcohol percentage of .08 or greater.
This measurement must relate to the time of driving, not at the time of the taking of a blood test, which can be hours after the arrest. The percentage of alcohol in your system can be measured directly (blood test) or indirectly (breath test). You have the right to refuse to submit to a breath test, and the blood test is usually performed during the normal battery of tests performed at the hospital after an accident, or by the request of an officer following an accident. Your refusal cannot be used against you in court. Currently, if you refuse a breath test, you will forfeit your license for 6 months (1st offense). This must factor into your decision whether to refuse or submit to the test. The machine is a computer, which assumes certain constants to every person that takes the test. This means that the computer fails to take into account that every person is different, including weight, gender, temperature, and other factors that could throw off the results of the machine.
The laws in Massachusetts are drafted and are being repeatedly tinkered with to make a conviction more readily attainable for the prosecution, but these cases are winnable if sufficient attention to detail is made. If you are pulled over, keep this Guide in mind to help maximize the possibility of an acquittal or a favorable plea negotiation depending upon your circumstances.
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