The Court of Appeals in City of Plymouth v. Longeway discussed “operating” in operating while intoxicated. The case began in the 35th District Court in Plymouth, with Judge Gerou presiding.
The Court ruled that a person is operating a vehicle when the person has actual physical control of the vehicle. The Court ruled that a person clearly has actual physical control of a vehicle when starting the engine, applying the brakes, shifting the vehicle from park to reverse, and then shifting back into park.
Facts of the Case
Defendant Longeway was charged with the Plymouth city ordinance of operating while intoxicated. She left 336 Bar in Plymouth and got in her car which was parked in a parking space. She turned the engine on, applied the brakes, shifted the car into reverse, and then shifted the car back into park. The car did not move.
Background and Procedure of the Case
Defendant filed a motion to dismiss in district court, claiming she never operated her vehicle.
The district court denied her motion to dismiss, writing, “[I]n the instant case, the Court believes that Defendant did operate a vehicle in an area open to the public designated for parking that could have caused a collision with another vehicle or person. The police in-car video shows Defendant’s vehicle running apparently in reverse with the driver’s foot on the brake then shifted back into park with the driver’s foot taken off the brake. While the wheels do no noticeably move, this Court finds Defendant was “operating” the motor vehicle.”
The Defendant appealed the district court’s decision to the Wayne County Circuit Court. The circuit court reversed the district court’s decision.
The circuit court wrote in its opinion, “The Michigan Supreme Court has defined “operating” in People v. Wood, 450 Mich. 399, 404-405 [538 N.W.2d 351]: “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.”
The circuit court went on to write, “[T]he district court erred when it found that the defendant was operating the vehicle as Wood defined operating. It is undisputed that the vehicle was never put in motion by the defendant. It is also undisputed that the car was legally and properly parked in a designated parking spot therefore it was not put in a position posing a significant risk of causing a collision.”
The Court of Appeal’s Ruling
The Court of Appeals reversed the circuit court.
The Court ruled, [A] person clearly has actual physical control of a vehicle when starting the engine, applying the brakes, shifting the vehicle from park to reverse, and then shifting back into park.”
The Court’s Analysis
The Court focused its reasoning on the statute’s definition of “operating.”
The drunk driving statute reads, “a person, whether licensed or not, shall not operate 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 if person is operating while intoxicated.” MCL 257.625(1).
Operation is defined by statute as: “Operate” or “operating” means being in actual physical control of a vehicle regardless of whether or not the person is licensed under this act as an operator or chauffeur. MCL 257.35a
Here, the court believed actual physical control was maintained by the Defendant.
The Court focused on the fact that Defendant “applied the brakes of her running vehicle, shifted the vehicle into reverse, and then shifted back into park.”
The Court’s opinion suggested the engagement of the car’s transmission was critical to it’s finding of actual physical control.
Longeway’s attorney filed for appeal with the Michigan Supreme Court, which declined to hear the case. Longeway later plead guilty to an amended charge of operating while visibly impaired. Operating while visibly impaired is a less serious charge than operating while intoxicated. Such a plea bargain saves a person in fines and driver’s license sanctions. Specifically, the plea bargain would save the person a 30 day suspension and two points on the driver’s license.
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Sam Bernstein is a DUI and criminal defense attorney based in Ann Arbor and Ypsilanti.
ArborYpsi Law is located at 4158 Washtenaw Ave., Ann Arbor, MI 48108.
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Operating While Intoxicated Attorney – 734.883.9584
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