Is a drunk guy sitting in the driver’s seat of a van with the car radio on while camping in a beach parking lot enough for a drunken driving conviction?.So far, yes – but a Cape Cod case that made the state’s highest court may end up making new law concerning operating under the influence of liquor.“The antiquated caselaw has not contemplated scenarios, such as the one in this case, in which the defendant has no intention of setting a motor vehicle in motion but instead is using the vehicle as a stationary platform, such as users of a recreational vehicle might use a camper or RMV,” wrote Genevieve Henrique, a lawyer for the defendant, in a brief before the Massachusetts Supreme Judicial Court, which heard oral arguments in the case earlier this week.But a prosecutor argued that the conviction was justified.“I think the rhetoric both in Massachusetts and in other jurisdictions is that the point is to discourage people who have been drinking from getting into the car except as passengers,” said Rose-Ellen El Khoury, Cape and Islands assistant district attorney, during oral arguments Monday, April 14. Drunken Camping Trip Leads To ArrestMichael Wurtzberger and a friend spent about a week after Labor Day in September 2021 fishing and camping out of a UHaul van in the parking lot of Electric Avenue Beach in the Buzzards Bay village of Bourne, according to court papers. The beach is on Cohasset Narrows, which connects Buttermilk Bay with the head of Buzzards Bay, and is about a half-mile northwest of the Cape Cod Canal.They didn’t have a permit, and there was no public bathroom nearby. Neighbors didn’t like the situation, and one of them called the police, according to court papers.“When the investigating officer arrived, he observed the van backed into a corner of the parking area by a tree. Two individuals were in the front seats listening to the radio and the vehicle was surrounded by camping equipment,” states a brief from defense lawyer Henrique, who has an office in Falmouth.Wurtzberger was in the driver’s seat with the keys in the ignition and the radio playing. He told the officer he had had about four beers during the previous hour.The police officer asked Wurtzberger to step out of the van.But there was a problem.The van was parked too close to a tree to get out on the driver’s side.“Climbing over the center console was not an option, as the defendant had undergone spinal fusion surgery six months prior and could not manipulate such a maneuver,” the defense lawyer’s brief states.“He’s like Winnie the Pooh in a tree, right? Stuck,” Justice Frank Gaziano said during oral arguments Monday, April 14, before laughing.The police officer had Wurtzberger drive the van forward several feet so he could get out of it. After Wurtzberger got out he failed field sobriety tests. The officer arrested him for operating under the influence of liquor.The potential consequences were severe, because he was charged with fifth offense operating under the influence, as well as operating under the influence of liquor with a driver’s license that had been suspended for operating under the influence of liquor.A Falmouth District Court jury convicted him in May 2022. The trial judge refused to throw out the verdict on legal arguments that he hadn’t driven the car after he had most recently started drinking. Wurtzberger appealed, and the case was heard earlier this week by the state’s highest court. More Than A Century of Drunken DrivingMassachusetts’s original drunken driving law, enacted in 1906, banned operating an automobile or motorcycle “on any public way or private way laid out under authority of law … while under the influence of intoxicating liquor” (Acts and Resolves, 1906, Massachusetts General Court, Chapter 412, Section 4). At the time Massachusetts had 6,410 automobiles registered, according to historical data the Federal Highway Administration.“The statute was passed for the protection of travellers upon highways …” the Massachusetts Supreme Judicial Court noted in a 1926 Roxbury case, Commonwealth vs. Clarke.The current statute is much longer, but includes substantially the same ban on operating a vehicle “under the influence of intoxicating liquor,” while adding “or of marijuana, narcotic drugs, depressants or stimulant substances” (Massachusetts General Laws, Chapter 90, Section 24). (As of January 1, 2024, Massachusetts had 5,251,309 registered vehicles, according to the state Department of Transportation’s Massachusetts Vehicle Census.)The key verb in both versions of the law is “operates.”In 1928, the state’s highest court found that “operates” includes “the setting in motion of the operative machinery of the vehicle as well as the driving of the vehicle under the power of the motor machinery,” in a case from Fitchburg called Commonwealth vs. Uski. Later in the opinion, the court said that “A person operates a motor vehicle” under state law “when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle.”That phrasing from 97 years ago is still the standard in Massachusetts for determining what “operates” means.Massachusetts allows convictions for drunken driving based on circumstantial evidence, stemming from a 1927 Cambridge case called Commonwealth v. Wood, in which a drunken man was found slumped behind the wheel after crashing into another car stopped in a line of cars behind a railroad crossing.States appeals courts then and since have decided that police officers, juries, and trial court judges can draw a reasonable inference that a person operated under the influence of alcohol or drugs even if a cop didn’t observe the person driving while impaired.In 1988, the Massachusetts Appeals Court (one step below the Massachusetts Supreme Judicial Court) said a jury could rightly convict an intoxicated man for sitting in the driver’s seat while “the engine was running” even if he claimed he had started drinking heavily only after he had parked his tow truck on the lot of a gas station in Seekonk while talking with the attendant. (The court set aside the verdict on other grounds in that case, Commonwealth vs. Cavallaro.)But details matter. In 1990, in Commonwealth vs. Plowman, the Massachusetts Supreme Judicial Court set aside a conviction of a man police found sleeping late one night in the driver’s seat of a car parked on the street outside his apartment in Medford next to his live-in girlfriend, who was also asleep, on the passenger seat. The keys were in the ignition and the engine was running, but both the man and the woman said that the woman had left the engine running when she came home with groceries, got the man to help her bring the groceries into their apartment, and then went back to out to drive away after getting into an argument with the man.In the Medford case, the man claimed he was in the driver’s seat only because he had been trying to prevent his girlfriend from driving while drunk, and that he hadn’t driven a car since he had begun drinking that evening. The high court decided the judge defined the word “operates” too broadly for the jury and also that “The defendant should be allowed to give his reasons for sitting in the driver's seat upon entering the automobile.”In a 1994 case from Brighton, the Massachusetts Appeals Court upheld a conviction in a case where cops came upon a drunk man asleep in a running car parked on a public way with loud music playing at 3:30 in the morning. In the case, called Commonwealth v. Sudderth, the court found that such circumstances “would not necessarily mandate a guilty verdict” but that the circumstances “readily may accommodate a reasonable inference of guilt” – meaning an appeals court shouldn’t overturn the conviction. Time To Change Drunken Driving Parameters?Current Massachusetts drunken driving law amounts to “strict liability,” defense lawyer Henrique told the state’s highest court during oral arguments Monday – meaning a person is guilty if he meets certain elements of the crime, whether he was endangering other people or not. Henrique argued this approach doesn’t make sense in the Wurtzberger case in Bourne, where it’s clear the vehicle the defendant was found in hadn’t been driven for several days. She said other states take circumstances into account, including Arizona, Utah, Colorado, and New Jersey, and that that approach makes more sense.At least two of the Massachusetts Supreme Judicial Court’s seven justices sounded interested in using Wurtzberger’s case to make changes in standards set forth in state case law.“Tell us how we improve our operation instruction,” Justice Gaziano asked the defense lawyer at one point.Later, during the prosecutor’s presentation, Justice Scott Kafker suggested a hypothetical scenario of a homeless family parked in a parking lot who are drinking alcohol with the ignition engaged in order to have the heat on because it’s cold outside.“Is there a way we can improve our case law in a way to, you know, not punish the sort of homeless person living in the car?” Justice Kafker said.El Khoury, the prosecutor, said “common sense does come into play” in the case of a hypothetical case of a homeless family.“And I think in this case also common sense does come into play, and I think it does suffice to sustain operation,” she said, referring to an element of the drunken driving case against Wurtzberger.Justice Gaziano suggested that the language about operation involving “motive power” in the 1928 case Commonwealth vs. Clarke might need updating – which led to an extended dialogue with the prosecutor. A transcript of the back-and-forth based on the video is below:^^^^^^^^^Justice Frank Gaziano: I think it's the mouthful that talks about mechanical or electrical agency, which alone or in sequence will set in motion the motive power of that vehicle. I don't really think, know, if that speaks to the jury anymore.[Laughter from another male justice]Mary-Ellen El Khoury: I would say it does. I would say that despite the technological advances --Justice Frank Gaziano: Have you ever used the phrase “motive power of the vehicle” in plain conversation?Mary-Ellen El Khoury: In my plain conversations as a prosecutor for the commonwealth? Yes.[Laughter]Justice Frank Gaziano: When you're with your friends?Mary-Ellen El Khoury: No, no, my friends won't tolerate it. It's with my family because they're literally a captive audience. But, ahh --Justice Frank Gaziano: But you think we could probably do a little bit better than that?Mary-Ellen El Khoury: It -- I don't – genuinely, in that circumstance, I do think it's clear what is being articulated. It is steps that you would take to put, you know, whether it's a Model T and you're using a hand crank on the outside to start the motor, or it's a Tesla and you're remote starting it from, you know, within your office building, you are taking steps to put the motive power of that vehicle into operation.^^^^^^^^^Later in oral arguments, El Khoury said the point is whether an intoxicated driver could potentially put the vehicle in motion and harm others."So whether or not, you know, you are sitting behind the wheel of your car that is still a functioning vehicle, that still has gas in the tank, that can still move, and you only have the radio on right now -- you're intoxicated, you're behind the wheel of a car, and you've taken steps to put that car into motion," El Khoury said. "Those elements haven't changed in a hundred-plus years. Technology has changed. People haven't changed that much. But the basic functions are still the same."The case is Commonwealth vs. Wurtzberger (docket number SJC-13722).The Massachusetts Supreme Judicial Court typically issues decisions within about 130 days of oral arguments, which in this case is about late August 2025.
Is a drunk guy sitting in the driver’s seat of a van with the car radio on while camping in a beach parking lot enough for a drunken driving conviction?.So far, yes – but a Cape Cod case that made the state’s highest court may end up making new law concerning operating under the influence of liquor.“The antiquated caselaw has not contemplated scenarios, such as the one in this case, in which the defendant has no intention of setting a motor vehicle in motion but instead is using the vehicle as a stationary platform, such as users of a recreational vehicle might use a camper or RMV,” wrote Genevieve Henrique, a lawyer for the defendant, in a brief before the Massachusetts Supreme Judicial Court, which heard oral arguments in the case earlier this week.But a prosecutor argued that the conviction was justified.“I think the rhetoric both in Massachusetts and in other jurisdictions is that the point is to discourage people who have been drinking from getting into the car except as passengers,” said Rose-Ellen El Khoury, Cape and Islands assistant district attorney, during oral arguments Monday, April 14. Drunken Camping Trip Leads To ArrestMichael Wurtzberger and a friend spent about a week after Labor Day in September 2021 fishing and camping out of a UHaul van in the parking lot of Electric Avenue Beach in the Buzzards Bay village of Bourne, according to court papers. The beach is on Cohasset Narrows, which connects Buttermilk Bay with the head of Buzzards Bay, and is about a half-mile northwest of the Cape Cod Canal.They didn’t have a permit, and there was no public bathroom nearby. Neighbors didn’t like the situation, and one of them called the police, according to court papers.“When the investigating officer arrived, he observed the van backed into a corner of the parking area by a tree. Two individuals were in the front seats listening to the radio and the vehicle was surrounded by camping equipment,” states a brief from defense lawyer Henrique, who has an office in Falmouth.Wurtzberger was in the driver’s seat with the keys in the ignition and the radio playing. He told the officer he had had about four beers during the previous hour.The police officer asked Wurtzberger to step out of the van.But there was a problem.The van was parked too close to a tree to get out on the driver’s side.“Climbing over the center console was not an option, as the defendant had undergone spinal fusion surgery six months prior and could not manipulate such a maneuver,” the defense lawyer’s brief states.“He’s like Winnie the Pooh in a tree, right? Stuck,” Justice Frank Gaziano said during oral arguments Monday, April 14, before laughing.The police officer had Wurtzberger drive the van forward several feet so he could get out of it. After Wurtzberger got out he failed field sobriety tests. The officer arrested him for operating under the influence of liquor.The potential consequences were severe, because he was charged with fifth offense operating under the influence, as well as operating under the influence of liquor with a driver’s license that had been suspended for operating under the influence of liquor.A Falmouth District Court jury convicted him in May 2022. The trial judge refused to throw out the verdict on legal arguments that he hadn’t driven the car after he had most recently started drinking. Wurtzberger appealed, and the case was heard earlier this week by the state’s highest court. More Than A Century of Drunken DrivingMassachusetts’s original drunken driving law, enacted in 1906, banned operating an automobile or motorcycle “on any public way or private way laid out under authority of law … while under the influence of intoxicating liquor” (Acts and Resolves, 1906, Massachusetts General Court, Chapter 412, Section 4). At the time Massachusetts had 6,410 automobiles registered, according to historical data the Federal Highway Administration.“The statute was passed for the protection of travellers upon highways …” the Massachusetts Supreme Judicial Court noted in a 1926 Roxbury case, Commonwealth vs. Clarke.The current statute is much longer, but includes substantially the same ban on operating a vehicle “under the influence of intoxicating liquor,” while adding “or of marijuana, narcotic drugs, depressants or stimulant substances” (Massachusetts General Laws, Chapter 90, Section 24). (As of January 1, 2024, Massachusetts had 5,251,309 registered vehicles, according to the state Department of Transportation’s Massachusetts Vehicle Census.)The key verb in both versions of the law is “operates.”In 1928, the state’s highest court found that “operates” includes “the setting in motion of the operative machinery of the vehicle as well as the driving of the vehicle under the power of the motor machinery,” in a case from Fitchburg called Commonwealth vs. Uski. Later in the opinion, the court said that “A person operates a motor vehicle” under state law “when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle.”That phrasing from 97 years ago is still the standard in Massachusetts for determining what “operates” means.Massachusetts allows convictions for drunken driving based on circumstantial evidence, stemming from a 1927 Cambridge case called Commonwealth v. Wood, in which a drunken man was found slumped behind the wheel after crashing into another car stopped in a line of cars behind a railroad crossing.States appeals courts then and since have decided that police officers, juries, and trial court judges can draw a reasonable inference that a person operated under the influence of alcohol or drugs even if a cop didn’t observe the person driving while impaired.In 1988, the Massachusetts Appeals Court (one step below the Massachusetts Supreme Judicial Court) said a jury could rightly convict an intoxicated man for sitting in the driver’s seat while “the engine was running” even if he claimed he had started drinking heavily only after he had parked his tow truck on the lot of a gas station in Seekonk while talking with the attendant. (The court set aside the verdict on other grounds in that case, Commonwealth vs. Cavallaro.)But details matter. In 1990, in Commonwealth vs. Plowman, the Massachusetts Supreme Judicial Court set aside a conviction of a man police found sleeping late one night in the driver’s seat of a car parked on the street outside his apartment in Medford next to his live-in girlfriend, who was also asleep, on the passenger seat. The keys were in the ignition and the engine was running, but both the man and the woman said that the woman had left the engine running when she came home with groceries, got the man to help her bring the groceries into their apartment, and then went back to out to drive away after getting into an argument with the man.In the Medford case, the man claimed he was in the driver’s seat only because he had been trying to prevent his girlfriend from driving while drunk, and that he hadn’t driven a car since he had begun drinking that evening. The high court decided the judge defined the word “operates” too broadly for the jury and also that “The defendant should be allowed to give his reasons for sitting in the driver's seat upon entering the automobile.”In a 1994 case from Brighton, the Massachusetts Appeals Court upheld a conviction in a case where cops came upon a drunk man asleep in a running car parked on a public way with loud music playing at 3:30 in the morning. In the case, called Commonwealth v. Sudderth, the court found that such circumstances “would not necessarily mandate a guilty verdict” but that the circumstances “readily may accommodate a reasonable inference of guilt” – meaning an appeals court shouldn’t overturn the conviction. Time To Change Drunken Driving Parameters?Current Massachusetts drunken driving law amounts to “strict liability,” defense lawyer Henrique told the state’s highest court during oral arguments Monday – meaning a person is guilty if he meets certain elements of the crime, whether he was endangering other people or not. Henrique argued this approach doesn’t make sense in the Wurtzberger case in Bourne, where it’s clear the vehicle the defendant was found in hadn’t been driven for several days. She said other states take circumstances into account, including Arizona, Utah, Colorado, and New Jersey, and that that approach makes more sense.At least two of the Massachusetts Supreme Judicial Court’s seven justices sounded interested in using Wurtzberger’s case to make changes in standards set forth in state case law.“Tell us how we improve our operation instruction,” Justice Gaziano asked the defense lawyer at one point.Later, during the prosecutor’s presentation, Justice Scott Kafker suggested a hypothetical scenario of a homeless family parked in a parking lot who are drinking alcohol with the ignition engaged in order to have the heat on because it’s cold outside.“Is there a way we can improve our case law in a way to, you know, not punish the sort of homeless person living in the car?” Justice Kafker said.El Khoury, the prosecutor, said “common sense does come into play” in the case of a hypothetical case of a homeless family.“And I think in this case also common sense does come into play, and I think it does suffice to sustain operation,” she said, referring to an element of the drunken driving case against Wurtzberger.Justice Gaziano suggested that the language about operation involving “motive power” in the 1928 case Commonwealth vs. Clarke might need updating – which led to an extended dialogue with the prosecutor. A transcript of the back-and-forth based on the video is below:^^^^^^^^^Justice Frank Gaziano: I think it's the mouthful that talks about mechanical or electrical agency, which alone or in sequence will set in motion the motive power of that vehicle. I don't really think, know, if that speaks to the jury anymore.[Laughter from another male justice]Mary-Ellen El Khoury: I would say it does. I would say that despite the technological advances --Justice Frank Gaziano: Have you ever used the phrase “motive power of the vehicle” in plain conversation?Mary-Ellen El Khoury: In my plain conversations as a prosecutor for the commonwealth? Yes.[Laughter]Justice Frank Gaziano: When you're with your friends?Mary-Ellen El Khoury: No, no, my friends won't tolerate it. It's with my family because they're literally a captive audience. But, ahh --Justice Frank Gaziano: But you think we could probably do a little bit better than that?Mary-Ellen El Khoury: It -- I don't – genuinely, in that circumstance, I do think it's clear what is being articulated. It is steps that you would take to put, you know, whether it's a Model T and you're using a hand crank on the outside to start the motor, or it's a Tesla and you're remote starting it from, you know, within your office building, you are taking steps to put the motive power of that vehicle into operation.^^^^^^^^^Later in oral arguments, El Khoury said the point is whether an intoxicated driver could potentially put the vehicle in motion and harm others."So whether or not, you know, you are sitting behind the wheel of your car that is still a functioning vehicle, that still has gas in the tank, that can still move, and you only have the radio on right now -- you're intoxicated, you're behind the wheel of a car, and you've taken steps to put that car into motion," El Khoury said. "Those elements haven't changed in a hundred-plus years. Technology has changed. People haven't changed that much. But the basic functions are still the same."The case is Commonwealth vs. Wurtzberger (docket number SJC-13722).The Massachusetts Supreme Judicial Court typically issues decisions within about 130 days of oral arguments, which in this case is about late August 2025.
