Recently, a shopper leaving a Kroger store in Farmington Hills spotted a man slumped behind the steering wheel of his car. The car was still running. Fearing for his well being and concerned that the man was having a medical emergency, the shopper knocked on the car window trying to rouse him. When that failed, she contacted the police who were ultimately able to make contact with the driver. The man behind the wheel was allegedly intoxicated and reportedly failed a variety of field sobriety tests. There were no eye witnesses to the driver actually "operating" his car. Can this man be convicted of Operating While Intoxicated (OWI)?
An essential element to Michigan's drunk driving laws is that the person be "operating" his or her car while under the influence. An operator has been defined by MCL 257.36 as a person who is in actual physical control of a motor vehicle upon a highway. However, is a driver "operating" a car when the car is running but not actually moving? The answer depends upon whether the motor vehicle is being used as such or is simply being used for shelter. In a 1995 Michigan Supreme Court case, the court indicated that once a person puts a vehicle in motion, or puts a vehicle in a position posing a significant risk of causing a collision, the person is operating until the vehicle is returned to a position where it poses no risk. People v. Wood, 450 Mich 399 (1995).
In the situation with the driver in the Kroger parking lot, whether he was operating depends upon the facts surrounding his case. Is there a bar nearby and did he drink at the bar before getting into his car to sleep it off? Did he drink in his vehicle until he fell asleep? If he did drive to that parking lot, was he in a position where he no longer posed any risk? A qualified drunk driving attorney can investigate the facts surrounding his case and if appropriate, challenge any claim that he was "operating" his vehicle.
