Most people think they have a good idea of what it means to “operate” a vehicle when accused of drunk driving. They usually envision the typical scenario of a police officer driving behind a vehicle on a highway that is swerving between the lanes. The police officer executes a traffic stop and, when he approaches the rolled-down driver’s side window, he smells the powerful odor of alcohol and intoxicants. The police officer then administers a PBT (preliminary breath test) to discover that the driver is over the legal limit and then executes an arrest. But what about those situations where it is not so clear that the driver was “operating” the vehicle? What if the officer finds the drunk individual in the parking lot when the car is turned off? What if the officer finds the drunk individual in a running car engaged in the parking or neutral gear but he or she was sleeping at the wheel? Are they “operating” the vehicle?
According to MCL 257.35a, “operate” or “operating” means or more of the following:
- (a) Being in actual physical control of a vehicle. This subdivision applies regardless of whether or not the person is licensed under this act as an operator or chauffeur.
- (b) Causing an automated motor vehicle to move under its own power in automatic mode upon a highway or street regardless of whether the person is physically present in that automated motor vehicle at that time. This subdivision applies regardless of whether the person is licensed under this act as an operator or chauffeur. As used in this subdivision, “causing an automated motor vehicle to move under its own power in automatic mode” includes engaging the automated technology of that automated motor vehicle for that purpose.
Does being in “actual physical control of the vehicle” mean that someone is driving the vehicle or putting it in motion? In People v Pomeroy/People v Fulcher (On Rehearing), 419 Mich 441; 355 NW2d 98 (1984), the Michigan Supreme Court determined “that under any reasonable interpretation of the phrase ‘operate a vehicle’, a person sleeping in a motionless car cannot be held to be presently operating a vehicle while sleeping.” In Pomeroy, the defendant was discovered by two deputy sheriffs to be slumped over the steering wheel of his car while legally parked in front of a bar, his head resting against the blowing car horn. “The car’s standard transmission was in neutral and the motor and heater were on, but the lights were off.” The deputies testified that they did not see the defendant move the car. In Fulcher, the police officer found that defendant’s automobile with its rear end in a ditch and the front end on the roadway. The defendant was asleep in the driver’s seat with the engine running and the automatic transmission in drive, but the defendant’s foot was off the accelerator and the vehicle was motionless. There were furrowed tire tracks observed in the ground. Under these circumstances, the Michigan Supreme Court decided “that these sleeping persons were not operating their motionless cars at the time of their arrest”, so both defendants’ convictions for operating while intoxicated was vacated.
This early definition of “operating” led to a flurry of drunk driving convictions getting tossed out. In People v Spencley, 197 Mich App 505; 495 NW2d 824 (1992), police officers found a vehicle “parked partially on the shoulder of US-31 and partially in the driveway of a motel” with “the lights on and the engine running.” The police officer observed tire tracks from the highway but no footprints on either side of the vehicle. The defendant was “inside, crouched down behind the wheel, asleep, and had a strong odor of alcohol.” A blood alcohol test indicated his blood alcohol level was at least 0.13. The Michigan Court of Appeals upheld the circuit court’s decision to toss the defendant’s conviction on the basis that the arrest was illegal. At the time of arrest, Michigan law said that police officers are only authorized to arrest individuals without a warrant for misdemeanors committed in their presence, with an exception for drunk driving offenses if there had been an accident. “Because defendant was not involved in an automobile accident or operating the vehicle (as defined by the Pomeroy court) in the presence of the arresting officers, the prosecutor has presented no authority for the arrest of defendant without a warrant.” Therefore, his drunk driving conviction was also vacated.
This generous definition of “operating” for DUI offenses did not last much longer. In People v Wood, 450 Mich 399; 538 NW2d 351 (1995), police officers found the defendant “unconscious in his van at a McDonald’s drive-through window in Howell” with his body “slumped forward” and “his heard resting on the steering wheel.” The vehicle’s engine was running, the automatic transmission was in drive, and the defendant’s foot rested on the brake pedal to keep the vehicle from moving. Due to the smell of alcohol, the presence of a beer bottle between the defendant’s legs, and the defendant’s confusion after waking up, the police officers did execute an arrest. The defendant moved to suppress the evidence obtained and the district court judge, based on the appellate decisions in Pomeroy and Spencley, granted the motion since the defendant was not “operating” the vehicle in the police officer’s presence when they executed a warrantless arrest.
The Michigan Supreme Court found in Wood that the assumptions of a sleeping person not being a danger are an “overgeneralization”. It concluded “that ‘operating’ should be defined in terms of the danger the OUIL statute seeks to prevent: the collision of a vehicle being operated by a person under the influence of intoxicating liquor with other persons or property… [and] [o]nce a person using a motor vehicle as a motor vehicle has put the vehicle in motion, or in a position posing a significant risk of causing a collision, such a person continues to operate it until the vehicle is returned to a position posing no such risk. Id at 404-405. In this case, the defendant had “put the vehicle in motion and in a position posing a significant risk of collision” and only his foot on the brake pedal kept the vehicle from moving forward. Since his foot could have slipped to the side or moved off the brake, the “vehicle had not been returned to a position of safety.” Id at 405. Until the vehicle was returned to “a position posing no risk of collision with other persons or property”, the Michigan Supreme Court concluded that the defendant “continued to operate the vehicle when he was observed by the officers.” Id at 405. As a result, the holdings in People v Pomeroy/People v Fulcher and People v Spencley were limited to the extent that a sleeping person is NOT ALWAYS held to not be operating the vehicle.
In Wood, a conviction could have been sustained because there was some evidence that the defendant may have driven the vehicle a short distance given its location at a drive-thru line at McDonald’s where he was alone. In People v Burton, 252 Mich App 130; 651 NW2d 143 (2002), the defendant was found sleeping in a pickup truck next to a golf cart storage building a golf course, with the engine running and the lights off. The defendant had told police officers that he had been stranded in the parking lot by a co-worker and, after being stranded, he drove the truck across the parking lot to its present location where he fell asleep. After failing a PBT and field sobriety testing, he was arrested. The Michigan Court of Appeals, however, determined that the defendant was not operating or intending to operate his truck when he was found:
- “While there is a risk that defendant might have inadvertently shifted the truck into gear while he slept, we do not believe such a risk is deemed significant, within the meaning of Wood. The term “risk” refers to the probability that some type of harm or loss will occur. The American Heritage Dictionary of the English Language (1996), p. 1557. We believe the adjective “significant” indicates that the risk of occurrence is more likely than not. At the very least, it indicates a risk higher than remote, speculative, or merely possible. In the case at hand, there was no evidence that defendant’s transmission was in gear, so potential of movement was not immediate, or even likely while defendant was asleep. We also conclude that the prosecution did not introduce sufficient evidence for the jury to find beyond a reasonable doubt that defendant took an act in furtherance of the crime. The mere fact that he was intoxicated and in his truck with the engine running does not establish that he tried and failed to drive while intoxicated. Certainly, defendant took steps that would have prepared him to commit the crime. However, while these acts were necessary for the commission of the crime had not the officers arrived on the scene, they do not establish the immediacy of the crime. Defendant may have been one step away from completing OUIL/UBAL, but such a step was not necessarily and unambiguously implied by his prior conduct.” Wood at 144-145.
The appellate court concluded that the evidence did not support the conclusion that the defendant intended to violate the statute when he was arrested, as the truck served more as a shelter for the defendant rather than a means of conveyance, and that the moving of his truck from one side of the parking lot to the other is the type of action the statute was designed to prevent. Therefore, his conviction was vacated.
Juries, however, can rely on circumstantial evidence that the defendant was “operating” a vehicle. In People v Solmonson, 261 Mich App 657; 638 NW2d 761 (2004), the defendant was found unconscious in the driver’s seat of a station wagon that was parked just outside the white fog lines but was still on the road pavement. “Although the engine was off, the keys were in the ignition and the engine was still warm. Defendant was alone but there were five full cans of cold beer on the passenger seat and one empty can in the back. The police found no one else in the area.” Id at 660. Defense counsel argued at trial that someone else had driven the defendant to where the police found him but he presented no evidence to support this theory, and the defendant did not testify. The defendant was convicted by the jury. Although the defendant argued there was insufficient evidence, the Michigan Court of Appeals held that the prosecutor “presented a compelling circumstantial case that defendant had driven while intoxicated to the location where the police found him.” Id at 662. “[T[he prosecution need not disprove all theories consistent with defendant’s innocence; it need only introduce sufficient evidence to convince a reasonable jury of its theory of guilt despite whatever contradictory theory or evidence a defendant may offer.” Id at 663. Since the court “must draw all reasonable inferences in favor of the jury verdict, defendant’s conviction must be affirmed.” Id at 663.
Even if the police come upon a vehicle that is turned off, they could still execute an arrest if the vehicle was “in a position posing a significant risk of causing a collision.” In People v Stephen, 262 Mich App 213; 685 NW2d 309 (2004), a police officer discovered the defendant asleep in his truck at the county fairgrounds. The truck was wedged on a parking log with the tires barely touching the ground, and the defendant was lying across the front seat covered by a sleeping bag. The truck’s engine was not running, the automatic transmission was in park, and the keys to the truck were inside the defendant’s pocket. The police officer arrested the defendant after observing the smell of intoxicants and the defendant having admitted that he was too drunk to drive home and he struck the parking log when he tried to leave, but decided to sleep there when he couldn’t dislodge it. The district court granted the defendant’s motion to suppress and dismissed the charges when it determined that the defendant was not “operating” the vehicle as defined by Wood. The Michigan Court of Appeals reversed the district court’s motion to suppress, finding that “defendant’s arrest was clearly valid because a peace officer may arrest a person without a warrant if the officer has reasonable cause to believe a misdemeanor punishable by more than ninety-two days’ imprisonment occurred, and reasonable cause to believe the person committed it”, pursuant to MCL 764.15(1)(d). Id at 219. The police officer had reasonable cause when the defendant admitted to him that “he drove on public roadways to the fairgrounds to sleep off the effects of having had too much to drink. According to defendant, he struck the parking log while attempting to leave the fairgrounds, and turned off the engine and went to sleep after he was unable to dislodge his truck.” Id at 219-220. This is different than the case in Burton where that defendant did not go out on the roadway but used his truck as a shelter, rather than a motor vehicle, in a parking lot. Due to the sufficient reasonable cause (even with the truck turned off), the motion to suppress was set aside and the charges were reinstated.
The appellate courts continue to liberally define what “actual physical control” of the vehicle means. In City of Plymouth v Longeway, 296 Mich App 1; 818 NW2d 419 (2012), a police officer got a tip that a vehicle hit a concrete barrier while entering a parking deck and the occupants appeared to be intoxicated (not witnessed by the police officer). However, as the police officer approached, he saw that the backup lights on the defendant’s vehicle were on as well as the brake lights, then the vehicle was put into the parking gear again. Defendant was charged with OWI, but moved to dismiss the charge because she was not “operating” the vehicle as defined by Wood. The district court refused to dismiss the charge, but the circuit court did so when it found that the vehicle was not put in a position posing a significant risk of causing a collision. The Michigan Court of Appeals reversed the dismissal of charges, relying on the defendant’s undisputed admission that “she started the vehicle, applied the brakes to her running vehicle, shifted the vehicle into reverse, and then shifted the vehicle back into park.” Since she was admittedly conscious and alert when she applied the brakes, put the car in reverse, and then put the car back into park, then she was at all times in actual physical control of the vehicle.
“Actual physical control” does not necessarily mean that the defendant has to be in the driver’s seat of the vehicle. In People v Yamat, 475 Mich 49; 714 NW2d 335 (2006), the defendant was a passenger in the vehicle his girlfriend was driving and, as she drove, the couple argued. During the argument, the defendant grabbed the steering wheel and turned it sharply, causing the vehicle to veer off the road and strike a jogger. The district court refused to bind over the charge after preliminary exam on the basis that the passenger was not in complete control of the vehicle. The circuit court and the Michigan Court of Appeals upheld the decision. However, the Michigan Supreme Court reversed and determined that, [a]s applied to the facts of this case, defendant’s act of grabbing the steering wheel and thereby causing the car to veer off the road clearly constitutes ‘actual physical control of a motor vehicle.'” Id at 339-340.
In sum, the definition of what it means to “operate” or be in “actual physical control” of a vehicle is very broad and expansive. In addition, all Michigan drivers should be aware of the following:
- Michigan’s general drunk driving statutes prohibit “operating” a vehicle “upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state.” MCL 257.625(1). This definition is EXTREMELY BROAD. Recently, the Michigan Supreme Court held that a private driveway was “generally accessible to motor vehicles” for the purpose of sustaining a drunk driving conviction. People v Rea, 500 Mich 422; 902 NW2d 362 (2017).
- Pursuant to MCL 257.625a(1), “a peace officer may arrest a person without a warrant under either of the following circumstances:”
- (a) The peace officer has reasonable cause to believe the person was, at the time of an accident in this state, the operator of a vehicle involved in the accident and was operating the vehicle in violation of [an impaired driving statute] or a local ordinance substantially corresponding to [an impaired driving statute].
- (b) The person is found in the driver’s seat of a vehicle parked or stopped on a highway or street within this state if any part of the vehicle intrudes into the roadway and the peace officer has reasonable cause to believe the person was operating the vehicle in violation of [an impaired driving statute] or a local ordinance substantially corresponding to [an impaired driving statute]. This statute was amended by the Michigan Legislature to eliminate the confusion caused by case law requiring the police officer to observe the vehicle while “operating”.
- The warrantless arrest statute has been amended several times by the Michigan Legislature to create even more circumstances where a police officer can make a legal arrest relating to a suspected DUI offense. A peace officer, without a warrant, may arrest a person in any of the following situations:
- 1. A felony, misdemeanor, or ordinance violation is committed in the peace officer’s presence. MCL 764.15(1)(a).
- 2. The person has committed a felony although not in the peace officer’s presence. MCL 764.15(1)(b).
- 3. A felony in fact has been committed and the peace officer has reasonable cause to believe the person committed it. MCL 764.15(1)(c).
- 4. The peace officer has reasonable cause to believe a misdemeanor punishable by imprisonment for more than 92 days or a felony has been committed and reasonable cause to believe the person committed it. MCL 764.15(1)(d).
- 5. The peace officer has reasonable cause to believe the person was, at the time of an accident in this state, the operator of a vehicle involved in the accident and was operating the vehicle in violation of section 625(1), (3), (6), or (7) or section 625m of the Michigan vehicle code, 1949 PA 300, MCL 257.625 and 257.625m, or a local ordinance substantially corresponding to section 625(1), (3), (6), or (7) or section 625m of that act. MCL 764.15(1)(h).
- 6. The person is found in the driver’s seat of a vehicle parked or stopped on a highway or street within this state if any part of the vehicle intrudes into the roadway and the peace officer has reasonable cause to believe the person was operating the vehicle in violation of section 625(1), (3), (6), or (7) or section 625m of the Michigan vehicle code, 1949 PA 300, MCL 257.625 and 257.625m, or a local ordinance substantially corresponding to section 625(1), (3), (6), or (7) or section 625m of that act. MCL 764.15(1)(i).
- 7. The peace officer has reasonable cause to believe the person was, at the time of an accident, the operator of a snowmobile involved in the accident and was operating the snowmobile in violation of section 82127(1) or (3) of the natural resources and environmental protection act, 1994 PA 451, MCL 324.82127, or a local ordinance substantially corresponding to section 82127(1) or (3) of that act. MCL 764.15(1)(j).
- 8. The peace officer has reasonable cause to believe the person was, at the time of an accident, the operator of an ORV involved in the accident and was operating the ORV in violation of section 81134(1) or (2) or 81135 of the natural resources and environmental protection act, 1994 PA 451, MCL 324.81134 and 324.81135, or a local ordinance substantially corresponding to section 81134(1) or (2) or 81135 of that act. MCL 764.15(1)(k).
- 9. The peace officer has reasonable cause to believe the person was, at the time of an accident, the operator of a vessel involved in the accident and was operating the vessel in violation of section 80176(1) or (3) of the natural resources and environmental protection act, 1994 PA 451, MCL 324.80176, or a local ordinance substantially corresponding to section 80176(1) or (3) of that act. MCL 764.15(1)(l).
What constitutes “operating” a motor vehicle for the purpose of driving under the influence is a dynamic area of the law that is always changing. When you are faced with an accusation of operating a vehicle while intoxicated or impaired, you need an experienced criminal defense attorney in your corner that stays on top of the changes in the law to best defend your case. In some instances, the difference between proceeding to trial or getting the case dismissed can turn on small legal nuances and specific facts.
If you or a loved one is charged with operating a vehicle while under the influence, do not hesitate to contact the skilled lawyers at Kershaw, Vititoe & Jedinak PLC today.