In law school, every lawyer learns that each law is passed for a purpose. The intent of the legislature, their goals, can be deduced from the statute. The intent of the Legislature was to prevent the dangers associated with driving a motor vehicle while drunk. We all know what these dangers are—reckless driving that kills innocent motorists and pedestrians. But what about the people who decide to “sleep it off” before they drive home intoxicated? In these situations, the case law that defines “operating a vehicle” in the contexts of the drunk driving statute is very important. Stop and think about it. If someone is bombed, sleeping in the backseat, with the car running to stay warm, is this person a danger to the general public? In this article, I will explore whether someone sleeping in the car is operating a vehicle under the drunk driving statutes in Michigan.
257.35a “Operate” or “operating” defined.
“Operate” or “operating” means 1 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.
257.36 “Operate” or “operating” defined.
“Operator” means a person, other than a chauffeur, who does either of the following:
(a) Operates a motor vehicle upon a highway or street.
Case law for operating a vehicle
The first case to examine was decided in 1984. People v Pomeroy and People v Fulcher, 419 Mich 44, held that a person sleeping in a motionless car was not “operating” the vehicle under Michigan’s drunk driving statute. Mr. Pomeroy was found sleeping in his car. The car was running, in neutral, and he was resting on the horn. Mr. Pomeroy was falling asleep in the bar but was asked to leave. There was no other evidence offered that suggested Mr. Pomeroy operated, or moved, the vehicle while intoxicated. Mr. Fulcher was found asleep in his car in a ditch off a road. The engine was running and the transmission in drive. Unlike Pomeroy, there were tire tracks and the location of the vehicle suggested that Mr. Fulcher drove, or moved the vehicle, while intoxicated.
The next case that interpreted “operating” a motor vehicle was People vs Woods, 450 Mich. 399(1995). It took a grievous case for the Michigan Supreme Court to make changes to what is legally “operating” an automobile. Mr. Woods was found by police officers passed out, at the wheel, in a fast-food drive-through, with his foot on the brake, a twenty dollar bill in his hands, and a beer between his legs. The Court said,
We conclude 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. Once 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.
People v. Wood, 450 Mich. 399, 538 N.W.2d 351, (1995) The Supreme Court applied the new test of “operating” and decided that Mr. Wood, despite being asleep, had not put the vehicle into a position of no risk. In particular, Mr. Woods was in a running car, in drive, with his foot on the brake. In other words, despite being asleep, the vehicle was still capable of causing damage, the sort of harm that the drunk driving statute was intended to prevent.
In People v Burton, 252 Mich App 130 (2002) the defendant was found asleep behind the wheel in a golf course parking lot. The car was running, in neutral, and the lights were off. There were some beer cans inside the vehicle. When the police awakened the Defendant, he stated he was drinking earlier and he was stranded by his companions. The car was running to keep him warm. The Appeals Court applied the test from Woods. The Court reasoned that at trial the prosecutor had not proven that the defendant intended to operate the motor vehicle as transportation rather than just shelter. The Court stated that the defendant’s car, which was parked in a golf course parking lot, was not in a position that posed a significant risk of causing a collision.
Circumstantial Drunk Driving
As a member of the general public, I applaud someone that recognizes that they are too intoxicated to drive then pulls over to sleep off the booze. Unfortunately, my opinion is in the minority. Police officers are very aggressive when they find people sleeping off alcohol in their car. Normally the police wake up the driver and then pepper the driver with questions. The police will be seeking answers for the following four inquiries:
1) Where did the driver drink alcohol;
2) When did the driver stop drinking alcohol;
3) Did the driver operate the vehicle to move the vehicle to the parking lot; and
4) Did the driver drink any alcohol after the car was parked?
The police officer is trying to make the driver admit that they consumed too much alcohol at a bar or party, then drove their car to the parking lot to sleep it off, presumably while intoxicated. If the driver states they consumed alcohol after the car was parked, then the validity of the alcohol breath/blood results will be in question. Once the officer determines the driver drove the car to the parking lot after drinking alcohol, they will perform a preliminary breath test and roadside sobriety tests. If the officer receives a high test reading and the driver admitted when they stopped consuming alcohol, the officer can make some quick alcohol metabolism calculations to guestimate what the driver’s breath/blood alcohol levels were at the time of driving. If the officer believes that the driver was intoxicated when they moved the car, they will arrest the driver.
The driver will be charged with drunk driving, despite the fact that the officer didn’t see the driver operating the motor vehicle on the road. When the driver answers the magic four questions above, the officer will have everything they need for a circumstantial case for drunk driving. For more information on the circumstantial case for drunk driving visit my blog here.
Putting it all together
A circumstantial case for drunk driving only works if the driver answers the questions posed by the police officer. “I am exercising my right to remain silent.” Whether the car is running or not, a person sleeping in the car that smells of alcohol is going to face the above questions. Generally speaking, whether a person is operating a motor vehicle under the drunk driving laws only becomes important when the driver either doesn’t answer the police questions or the facts of the case indicate that the driver truly didn’t drive after becoming drunk. Recall the facts of Pomeroy; the driver was falling asleep at the bar, he was asked to leave. The police found him in his car outside the bar with the car running. With these facts, it’s clear that the driver didn’t move his car after he was intoxicated. Mr. Pomeroy’s car was never put into motion nor was it placed in a position that could cause a collision. Now recall the facts of Burton: the driver told the officers that he was stranded by his companions, he started the car up to keep warm and presumably drank a couple more beers before he fell asleep.
DUI or drunk driving is a state-level crime. Every state has a different drunk driving statute. Below are some other attorney blogs addressing what is “operating” under their state drunk driving laws:
Wisconsin: Click here.
Illinois: Click here.
Ohio: Click here.
In Ohio, there is a charge called “physical control” of an automobile while impaired. Essentially this charge prohibits anyone impaired to be in control of a car, including sleeping in it.
Every person charged with drunk driving when the driver was found in the car sleeping should hire an experienced drunk driving attorney. The facts and circumstances of these cases need to be carefully examined. Michigan law does provide a valid defense to drunk driving when the facts indicate that the driver didn’t have the intent to drive intoxicated, rather the driver was using the car for shelter. All too often, less experienced attorneys will quickly tell their clients, “Well the keys were in the car so you were operating.” It’s just not that simple. Particularly in rural Michigan where winter cold weather can kill people. Some practical advice for sleeping it off in your car: 1) Avoid sleeping in a running car; 2) Don’t sleep in the driver’s seat, move to the back or passenger seat; 3) Never move the vehicle after becoming intoxicated, if the police find you in your car they will try to get you to admit to driving the vehicle while intoxicated; and 4) Make it appear that you are sheltering in the car. For example, lock the doors, take your shoes off, use clothing as extra blankets.
About the Author: Matthew Benedict is a drunk driving attorney practicing law in Traverse City Michigan. Call today for an appointment 231-883-4170.