The Court of Appeals took up the issue of a person sleeping in a car and charged with drunk driving in the case People v. Solmonson.
Defendant Solmonson was convicted at trial of operating a motor vehicle under the influence of intoxicating liquor, third offense, as well as driving on a suspended license and possession of an open intoxicant.
In this case, the police found the Defendant unconscious in his car, and with an open beer between his legs at 3:45 in the morning. The car was parked outside of the fog lines but still on the pavement. The keys were in the ignition, the engine was off but still warm. There were five full cans of beer on the passenger seat and one empty beer can in the backseat.
A blood draw was performed, and the Michigan State Police measured his blood alcohol content at .21 and .22.
Defendant argued that he was not operating the vehicle at the time he was found by police. Defendant further argued that someone had driven him to the spot he was found but no evidence was offered in support of that theory.
Arguments and Analysis
Defendant’s main argument was that there was insufficient evidence to support his conviction. Again, Defendant argued that someone drove him to that spot and he was not “operating” the vehicle at the time the police found him. As he was sleeping (court called it “unconscious”) he could not be described as presently operating the vehicle. Operating is defined by statute under MCL 257.35a.
To be convicted of operating while intoxicated, the prosecution must prove beyond a reasonable doubt that a person was operating a vehicle. Operating is more than just driving, although driving would clearly be operating a vehicle. Operating means being in actual physical control of the vehicle.
Basically, the prosecution argued that Defendant drove while intoxicated before the point in time where police found him.
The Court held there was sufficient evidence to support a conviction. The takeaway is a person can be convicted upon proof that a person operated a vehicle before the time the police make contact with a defendant. The prosecution does not have to show that a person was presently operating the vehicle to obtain a conviction.
When Does Operating While Intoxicated Become a Felony?
A third offense drinking and driving charge (whether operating while intoxicated or operating while visibly impaired) will be charged as a felony. The first two drinking and driving offenses will be charged as misdemeanor. The third offense enables the prosecution to file for a sentencing enhancement that makes the offense a felony. MCL 257.625. Read about OWI Driver’s License Sanctions.
Sam Bernstein is a criminal defense and drunk driving lawyer in Ypsilanti and Ann Arbor.
ArborYpsi Law is located at 4158 Washtenaw Ave., Ann Arbor, MI 48108.
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ArborYpsi Law focuses on all aspects of OWI & DUI law. Based in Ypsilanti, we represent clients in all Washtenaw County courts, including Ann Arbor, Chelsea, Saline, and Pittsfield Township. Though based in Washtenaw County, we have represented clients in courts from East Lansing, Pontiac, Detroit, Adrian, to Jackson and Battle Creek. We don’t care where the case is. If you need us to travel we will.
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