Quoted: In Washington we have a "Physical Control" law that covers someone drunk being in the drivers seat. Everything is the same as a DUI except you don't have driving, just behind the wheel. I have arrested several people for it.
|
Similarly, in MA, you need the "operation" element to effect an OUI arrest......."operation" in MA has, as it's minimum requirement,
inserting the key into the ignition while in the driver's seat (this sets in motion the sequence of events that allow operation to occur...according to MA criminal law code). If you do not have this (
operation) than an
arrest was not possible.
The second thing which could have been done (not saying that it should have been done by ANY means, just adding another possibility) is a PC (Protective Custody), which is done for those who are under the influence of alcohol only (oddly enough, in MA those high on drugs
and a danger to self/others cannot be PC'd technically....other avenues have to be sought), and a danger to themselves or others (which would have to be cogently articulated by facts and circumstances, as I'm sure you know).
The third, and probably only other thing, which could be done (at least in MA) is towing the vehicles (or having the registered owners secure them). The towing could be done under the case law that does not
require stores, or their owners (despite it being a public lot which grants the public, as licensees and invitees, access to same) to bear the burden of securing a car owner's vehicle indefinitely, due to the possibility of the car being stolen, vandalized, or otherwise damaged. Now, if the owner of the store and property gives a definitive "OK", then that's another story. I know it sounds strange, but dem's da fax in MA.
I'm pretty much reiterating what
jeager001 stated in one of his posts....which is pretty much right on the money. Again, in MA LEO's are granted reasonable discretion (often true that it's the better part of valor) in arresting. In fact, the only thing that MA cops are MANDATED to arrest for is violation of a 209A (restraining order), and an arrest warrant when contacting the person who the warrant is for ("the court hereby COMMANDS you" is the part I consider the mandate
). Sounds like the officer in your hypothetical made a good call in light of the above, and the circumstances.