Instruction 3.200, Criminal Model Jury Instructions for Use in the District Court

OPERATION OF A MOTOR VEHICLE

A person “operates” a motor vehicle not only while 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.

The law is that a person is “operating” a motor vehicle whenever he or she

is in the vehicle and intentionally manipulates some mechanical or

electrical part of the vehicle — like the gear shift or the ignition — which,

alone or in sequence, will set the vehicle in motion.

Commonwealth v. Ginnetti, 400 Mass. 181, 184, 508 N.E.2d 603, 605 (1987); Commonwealth v. Uski,

263 Mass. 22, 24, 160 N.E. 305, 306 (1928).

An intoxicated defendant found asleep behind the wheel of a vehicle parked on a public way, with the

key in the ignition and the engine on, m ay be found to have “operated” the vehicle; the

Com m onwealth need not prove that the vehicle was driven before being parked nor prove the

defendant’s intention after occupying the driver’s seat. Commonwealth v. Sudderth, 37 Mass. App.

Ct. 317, 319-320, 640 N.E.2d 481, 482-483 (1994). However, the judge m ay not charge that such

circum stances constitute operation as a m atter of law. Commonwealth v. Plowman, 28 Mass. App.

Ct. 230, 233-234, 548 N.E.2d 1278, 1280 (1990). See Commonwealth v. Platt, 57 Mass. App. Ct.

264, 267 nn. 5 & 6, 782 N.E.2d 542, 544 n.5 & 545 n.6 (2003) (collecting cases with sufficient and

insufficient circum stantial evidence of operation).

SUPPLEMENTAL INSTRUCTIONS

1. “Motor vehicle.” The law defines what a “motor vehicle” is

as follows: “all vehicles constructed and designed for

propulsion by power other than muscular power,” with certain

exceptions that are not relevant here.

G.L. c. 90, § 1. The jury m ay be given m ore of the statutory definition where

appropriate to indicate that the term “m otor vehicle” includes vehicles being pulled

or towed, but excludes railroad, railway, trolley and other vehicles on tracks, highway

construction and m aintenance equipm ent incapable of m ore than 12 m .p.h., invalid

wheelchairs, vehicles operated or guided by pedestrians, and m opeds. Trackless

trolleys are included in the statutory definition, but only for certain purposes.

2. Stopped engine. To “operate” a motor vehicle within the

meaning of the law, it is not necessary that the engine be

running. A driver continues to operate his or her motor vehicle

when it is stopped in the ordinary course of its operation for

some reason that is fairly incidental to the vehicle’s operation.

A person is also considered to be “operating” a stationary

vehicle when he or she manipulates some part of it, like the gear

shift, so that it moves forward of its own weight.

Commonwealth v. McGillivary, 78 Mass. App. Ct. 644, 940 N.E.2d 506 (2011), rev.

denied 459 M ass. 1107, 944 N.E.2d 1043 (2011); Commonwealth v. Clarke, 254

Mass. 566, 568, 150 N.E. 829, 830 (1926); Commonwealth v. Henry, 229 Mass. 19,

22, 118 N.E. 224, 225 (1918); Commonwealth v. Cavallaro, 25 Mass. App. Ct. 605,

607-611, 521 N.E.2d 420, 421-424 (1988).

3. Circumstantial evidence. You may find that the defendant was

the operator of the motor vehicle even if no witness saw him

(her) driving the vehicle, if there is enough circumstantial

evidence to prove to you beyond a reasonable doubt that the

vehicle was operated and that the defendant, and no one else,

was the operator of that vehicle.

Here instruct on Direct and Circumstantial Evidence (Instruction 2.06).

Commonwealth v. Otmishi, 398 Mass. 69, 70-71, 494 N.E.2d 1350, 1351-1352

(1986); Commonwealth v. Hilton, 398 Mass. 63, 66-68, 494 N.E.2d 1347, 1349-1350

(1986); Commonwealth v. Smith, 368 Mass. 126, 330 N.E.2d 197 (1975);

Commonwealth v. Rand, 363 Mass. 554, 561-563, 296 N.E.2d 200, 205-206 (1973);

Commonwealth v. W ood, 261 Mass. 458, 459, 158 N.E.2d 834, 834 (1927);

Commonwealth v. Colby, 23 Mass. App. Ct. 1008, 1010-1011, 505 N.E.2d 218, 220-

221 (1987); Commonwealth v. Balestra, 18 Mass. App. Ct. 969, 969-970, 469 N.E.2d

1299, 1300 (1984); Commonwealth v. Geisler, 14 Mass. App. Ct. 268, 272-273, 438

N.E.2d 375, 378-379 (1982); Commonwealth v. Doyle, 12 M ass. App. Ct. 786,

787-789, 429 N.E.2d 346, 347-348 (1981). For cases where the circum stantial

evidence was held insufficient, see Commonwealth v. Shea, 324 Mass. 710,

712-714, 88 N.E.2d 645, 646-647 (1949); Commonwealth v. Mullen, 3 Mass. App.

Ct. 25, 322 N.E.2d 195 (1975).