940 N.E.2d 506
Mass. App. Ct.2011Background
- McGillivary was convicted by a Superior Court jury of operating a motor vehicle under the influence of intoxicating liquor (OUI), fourth offense, under G. L. c. 90, § 24(l)(a)(1).
- Appellant challenges the meaning of 'operation' under the statute and the sufficiency of the evidence.
- Evidence showed him slumped in the driver’s seat with a key in the ignition turned to the 'on' position, engine off, vehicle not running.
- Commonwealth argued operation occurred by initiating a sequence that would set the vehicle in motion; defense argued turning the key without engine engagement is not operation.
- Judge charged with jury instructions describing operation as any act or use of electrical/mechanical means that could set in motion the vehicle.
- The court upheld the conviction, rejected several accompanying defenses, and affirmed related speedy-trial and pretrial ruling challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of operation under the statute | Commonwealth: Uski-based; turning ignition to 'on' can be part of the sequence that starts motion. | McGillivary: turning the key without starting the engine cannot constitute operation. | Turning ignition can constitute operation under Uski framework. |
| Sufficiency of evidence to prove operation | Evidence showed key in ignition, turned to 'on,' and defendant seated in driver’s seat. | Evidence does not prove he actually operated the vehicle; reliability of memory and other testimony disputed. | Evidence sufficient to support inference of operation. |
| Jury instructions adequacy | Instructions properly defined operation and did not mislead as to necessity of engine running. | Instructions possibly favored Commonwealth and misled about necessity of engine engagement. | Instructions not erroneous or prejudicial. |
| Speedy-trial compliance | Delay within Rule 36(b) exclusions; total excluded days suffice. | Delay violated speedy-trial rights absent proper exclusion. | Delay properly excluded; speedy-trial rights satisfied. |
| Prior-convictions evidence and related rulings | Prior OUI convictions properly admitted and instructed to the jury. | Confrontation and admissibility arguments; error in admission or instruction claimed. | Evidence and instructions regarding prior convictions upheld. |
Key Cases Cited
- Commonwealth v. Uski, 263 Mass. 22 (Mass. 1928) (defines operation as act or use of means that set in motion motive power)
- Commonwealth v. Ginnetti, 400 Mass. 181 (Mass. 1987) (engine engagement not strictly required for operation; context of inoperability analysis)
- Commonwealth v. Sudderth, 37 Mass. App. Ct. 317 (Mass. App. Ct. 1994) (operation can occur with vehicle stationary; key in ignition provisions)
- Commonwealth v. Haight, 279 Conn. 546 (Conn. 2006) (insertion of key constitutes operation under similar definition)
- Commonwealth v. Eckert, 431 Mass. 591 (Mass. 2000) (engine running as evidence of operation)
- Commonwealth v. Petersen, 67 Mass. App. Ct. 49 (Mass. App. Ct. 2006) (circumstantial evidence may prove operation)
- Commonwealth v. Rand, 363 Mass. 554 (Mass. 1973) (circumstantial evidence can establish operation)
- Commonwealth v. Plowman, 28 Mass. App. Ct. 230 (Mass. App. Ct. 1990) (engine running with keys in ignition not always required)
- Commonwealth v. Cavallaro, 25 Mass. App. Ct. 605 (Mass. App. Ct. 1988) (stopped engine instruction not mandated where theory is ignition key operation)
- Commonwealth v. Duguay, 430 Mass. 397 (Mass. 1999) (closing argument context; substantial risk of miscarriage standard)
- Commonwealth v. Spaulding, 411 Mass. 503 (Mass. 1992) (time exclusions under Rule 36(d) for speedy-trial purposes)