We often refer to a drinking and driving charge as a DUI, which stands for driving under the influence. The standard drinking and driving charge in Michigan is actually called operating while intoxicated.
The key difference is the “driving” v. “operating” language. The courts have defined operating as more broad than just driving.
Operating means driving or having actual physical control over the vehicle. The term ‘actual physical control’ is much more broad than simply driving. Actual physical control could occur even where the car has not moved at all, as at least one court of appeals has found.
This creates the possibility that a person in the driver’s seat of a running car could be found to be operating the vehicle even though they were not driving or meant to go anywhere.
In the case of Plymouth v. Longeway, the Court of Appeals ruled a person operated a vehicle when she turned the car on, put the gear into reverse, then put the gear back into park, but didn’t go anywhere.
Case law has defined operating as when, “a person using a motor vehicle has put the vehicle in motion, or in a position posing a significant risk of harm, this person continues operating the vehicle until it is returned to a position posing no such risk.” This definition comes into play with parked cars and people sleeping in vehicles.
No Operating = No Crime
A person must be operating a vehicle in order to be convicted of a drinking and driving crime. Whether a person is operating a vehicle would be the one of the first question in the analysis of the situation.
- Was the car’s engine on?
- Even if the engine was on, what was the person doing?
- Was the person in the driver’s seat or a different seat?
- Was the key in the ignition?
- Did the person put the car into gear?
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Sam Bernstein is an Ann Arbor criminal lawyer.
ArborYpsi Law is located at 4158 Washtenaw Ave., Ann Arbor, MI 48108.