Michigan Drunk Driving Operation Issues

The ninth most successful of the nine most successful defenses is the issue of operation.  Now we’ve come full circle.  We started talking about the stop, and now we’re basically back talking about the operation.  Now remember, when we talk about the stop, we are talking about the instance of driving.  When we talk about operate, we’re not talking about driving necessarily.  We’re talking about the legal definition of the word “operate”, which according to the jury instructions, is to have the ability to control a motor vehicle.

If your client has the ability to control a motor vehicle, he or she may be in operation of it, even if the vehicle is not moving.  It’s important to understand that the word operate is in the name of the offense.  It’s Operate While Intoxicated not Driving While Intoxicated, so we’re looking at the legal definition of operate.  I’ve seen an increasing number of operation issues in the last several years.  It seems that as the police become more aggressive in their arrest and prosecution of drunk drivers, they become more likely to arrest anybody who’s anywhere near a vehicle and are intoxicated.

This can occur in all sorts of different scenarios.  When you look at operation, it’s important to understand first what the definition is, but also to understand that even if your client is found outside the vehicle, they can still in some instances, be successfully prosecuted for operating while intoxicated.  If the prosecution is able to show that at some point earlier in time your client was in operation.  How did that happen?  Well it’s not unusual for someone who has been involved in an accident, for example, or has simply been drunk driving and has perhaps been brought to the police attention in some other way, for the police to go to the person’s home and do the investigation at the home.  The person is obviously not in their car, they are in their home.  So the question is, “If they are in their home how can they be charged with drunk driving?

If the prosecution can present circumstantial evidence to the jury to show that at some point earlier in time the person was operating, and that at that time they were drunk, the prosecution can be successful.  Now that you can see, once again, we’re talking about a concept of blood alcohol and retrograde extrapolation and rising blood alcohol.  If we know what the person’s bodily blood alcohol content was when the police arrived at the home, what does that say at the time of the driving?  Let’s change the facts.  Now we have a person who has fallen asleep, and I’ve handled several of these cases, at the gas pump.  At some point later in time the police come and make the arrest.  They do their investigation and make the arrest.  The question is, “What does the person’s bodily alcohol result, at the time of the test, say about the persons operation at the time they were operating?” 

Of course they’re sleeping when the police get there, they’re passed out at the pump.  Are they operating?  Well, we can look at certain facts such as:  was the motor vehicle running, was the keys in the ignition, was the hood warm, are the headlights on, where is the person inside the car, what is their position in relationship to the wheel.  All of these things will become relevant in determining whether  operation occurs because operation is the ability to control, so if the person’s behind the wheel whether the ignition is on or off, if they have the ability to control they may qualify or meet that definition.

It will require that you very carefully scrutinize and evaluate the specific facts of your case to determine if there is in fact operation.  It’s also important for you to understand that when we are dealing with the issue of operation in Michigan, although we have a definition, that definition has been interpreted different ways by different courts.  There is a whole line of cases, in my view at least is very convoluted in explaining this issue or this concept of law.  An example this and the most recent case I’ve seen is where a  person was at the side of the road after it has been involved in an accident when the police arrived.  The question was, “Were they operating the motor vehicle?”.  This case adopted the evaluation or interpretation of the concept of operation.

The court said that the person who operates a motor vehicle from the time when they put it in a position where it could cause harm until they take it out of that position.  If the car is not in a position where it can cause an accident, or cause harm, then at least according to this definition, they’re not operating a motor vehicle.  If you have a person who has pulled over to the side of the road, let’s say to sleep it off, and the police arrive or take it one step further they had pulled into a neighborhood or a parking lot to sleep it off and the police arrive.  Are they operating?  Based in this definition, the answer seems like it probable is not.  They have taken that vehicle out of risk of collision.  However, they can use circumstantial evidence, which brings us back to, “How did they get there?”  Well they got there by driving, presumably.  Then the question becomes, “What was their condition at the time they were driving?”

This sounds like, and it is, terrible public policy.  It encourages the person to get home rather than actually pulling over and sleep it off, because if you pull over and sleep it off you can get charged.  If you’re lucky enough to make it home, you’re not going to get charged.  I think the public policy should be different, but at least in Michigan, they can use the circumstantial evidence and show that at some point earlier in time you were operating.  Of course if you’re in a parking lot and the car is running, that alone may be operating, so your operating at that moment.  If the car is turned off and you’re asleep in the back seat, they can use circumstantial evidence to show that at some point earlier you were intoxicated and there for operating while intoxicated.

The operation issue is very fact specific.  There are some instances where you can successfully raise it before the judge and have the case dismissed.  If you’re not successful with your pre-trial motion, you still have an excellent jury issue.  I have found in my experience that those cases are excellent cases to bring in front of a jury.  Because the jury recognizes the absurdity of the law, in certain circumstances, in allowing like that to be charged.  In many instances, on that basis alone, will acquit and in those instances where the operation is the issue, then when your before the jury you can tell the jury that the issue in this case is that the typical one, which is, “Was the driver drunk?” Instead in these case, the issue is, “Was the drunk driving?”  Jurors understand that and very often will acquit on that issue and on that basis.

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