No Driving Required: Mass. Supreme Judicial Court Confirms 5th OUI for Intoxicated Man in Parked Van

In a recent decision by the Massachusetts Supreme Judicial Court, Commonwealth v. Wurtzberger, the court reaffirmed what it means to “operate” a motor vehicle under the influence—reminding drivers that, in the eyes of the law, movement isn’t always required. The case, involving a defendant found intoxicated in a parked van, clarifies and reinforces just how broad the state’s definition of “operation” really is.

The facts are unusual but not unheard of. Police were called to a municipal parking lot in Bourne in September 2021, responding to complaints that a rental van had been sitting there for several days. Inside, officers found Michael J. Wurtzberger slouched in the driver’s seat. The vehicle was off, but the key was in the ignition, the radio was playing, and the smell of alcohol was unmistakable. A half-empty handle of vodka sat within arm’s reach. Wurtzberger told the officer he had consumed four beers about an hour before.

Because the driver’s side door was blocked by a tree, Wurtzberger was asked to move the vehicle forward slightly so he could exit. He did so. When he eventually got out, he nearly fell and failed every field sobriety test offered. He was arrested and later convicted of his fifth OUI offense—a serious charge carrying mandatory jail time.

The crux of Wurtzberger’s appeal was that he hadn’t really driven—or at least, there wasn’t proof he drove while intoxicated. The van wasn’t running when the officer arrived, and there was no evidence pinpointing exactly when it was last moved. Could that really count as “operation” under the law?

The answer: absolutely.

Massachusetts law defines “operation” more broadly than most would assume. You don’t need to be speeding down the highway or even have the engine running. What matters is whether the driver, while intoxicated, intentionally did anything that could set the vehicle in motion. In Wurtzberger’s case, turning the ignition key to power the radio and electrical systems qualified as such an act. Even though he didn’t drive anywhere, the fact that he moved the van forward at the officer’s request also reinforced the argument that he had control over the vehicle while impaired.

The court leaned heavily on precedent going back as far as 1928, including cases where drivers were found guilty of OUI even though their vehicles didn’t move. For example, one key case involved a driver who shifted gears while the engine was off—still considered “operation” under the statute. The idea is to deter intoxicated individuals from putting themselves in any position of control over a vehicle, even if they don’t intend to drive.

In this context, Wurtzberger’s inability to exit the vehicle without moving it further complicated his defense. The court reasonably inferred that he had positioned the van there recently, especially given that he couldn’t have climbed into the driver’s seat from the other side due to physical limitations. His being found intoxicated, in control, and behind the wheel with the keys turned was more than enough.

The broader takeaway is clear: In Massachusetts, you don’t have to drive to be guilty of OUI. If you’re in the driver’s seat, key in the ignition, engine off, maybe just listening to the radio or waiting it out, that can still meet the legal threshold for operation—especially if you’re drunk.

Wurtzberger was sentenced to three and a half years in a house of correction, and his conviction was upheld at every level, from the trial court to the state’s highest court. For those with prior offenses, the consequences of even a seemingly “harmless” situation—like sitting in a parked vehicle—can be massive.

The message from the courts is unequivocal: don’t get behind the wheel if you’ve been drinking. At all. Not to rest, not to cool off, not to listen to music. In Massachusetts, the law doesn’t care whether you move an inch or a mile. If you’re intoxicated and in control of the car’s operative systems, you’re “operating”—and that’s all it takes to find yourself facing serious charges.

IF YOU NEED A LAWYER CONTACT US