Lawyers tell SJC evidence was insufficient to prove ‘operation’ in OUI conviction

At oral argument before the Supreme Judicial Court, defense attorney Genevieve Henrique asked justices to reverse Michael J. Wurzberger’s conviction for operating a motor vehicle under the influence, saying the record contained no evidence linking intoxication to any act of driving.

Henrique summarized the facts: two men had been camping in a U-Haul van in a beach parking lot for several days, cooking and living out of the van; when police approached one man was seated in the driver’s seat, "the keys were in the ignition, engine was not turned on and the radio was playing." She said the truck was parked so close to a tree that a door could not be opened, and argued the record contains no timeline tying intoxication to the act of moving the van.

The defenses central contention was that the only evidence the trial judge cited in denying a directed verdict was the defendants position in the drivers seat with keys present. Henrique quoted the trial courts reason on the record: "He's in the driver's seat with the keys." She argued the Commonwealth failed to prove when the alleged drinking occurred and therefore failed to establish the required nexus between intoxication and operation.

Counsel urged the court to clarify or revisit the state's operation jurisprudence in light of modern realities, pointing to decisions in other jurisdictions and recent technological changes such as keyless entry, remote start, and mobile apps used to start vehicles. Henrique cited Plowman and Carvallo as favorable authority for considering surrounding facts and intent rather than a strict-liability approach.

Rosella Elkhoury, arguing for the Commonwealth, said the evidence was sufficient to support operation. She and others at the bench discussed the statutory aim of preventing drunken drivers from endangering the public and emphasized that taking steps that enable a vehicle to move can satisfy the operation element. As the prosecutor put it, "So that would put the motive power in. So I take it to be steps that would get the car moving." She told the court that the traditional elements supporting operation remain relevant despite technological change and that jury instructions and common sense can address unusual factual settings.

Both sides discussed how other states treat passive occupants, sleeping motorists, or people using a vehicle as a shelter; counsel cited Illinois (People v. Cummings), Arizona (State v. Love), Maryland, New Jersey (State v. Daley), Utah and others as showing divergent approaches to whether intent or a public-safety threat must be proved. Defense counsel said some jurisdictions expressly ask whether a vehicle presents an actual threat to the public before concluding operation occurred.

No formal ruling appears in the argument transcript. The exchange focused on whether the Lattimore standard (viewing evidence in the light most favorable to the Commonwealth at the required-finding stage) was satisfied by the minimal facts here and whether the state's case law needs doctrinal clarification.

The argument closed with the Commonwealth reiterating that the purpose of the statute is to "enable the apprehension of a drunken driver before he injures or kills himself or another person," and defense counsel asking the court to consider whether the evidence produced at trial was too attenuated to send operation to a jury.

What happens next: the court will decide whether the existing record sufficed to sustain the conviction and, separately, whether the court should clarify the law governing the "operation" element in OUI cases; no decision or vote is recorded in the transcript.