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State v. Burton: Court of Appeals Discusses “Operation” Issue in OWI Case

September 5, 2015 DUI/OWI/DWI

The Court of Appeals in State of Michigan v. Burton took examined a trial in which a Defendant was convicted of attempted drinking and driving. There is a good factual discussion on the issue of ‘operating’ in operating while intoxicated crimes.

Background of the Case

Defendant Mark Burton was convicted at trial of attempting to operate a vehicle under the influence of intoxicating liquor or with an unlawful blood alcohol level, third offense.

A third offense operating while intoxicated offense is charged as a felony.

Facts of the Case

Burton was found asleep in his car. The car was parked in a golf course parking lot. The car’s engine was running, the lights were off, and he was asleep seated in the driver’s seat.

The Defendant made statements that he drank 8 beers earlier that evening, and a few empties were found in the car. Defendant stated that earlier in the evening he had been stranded there by friends, and drove his car from one side of the parking lot to another.

On Appeal

The Defendant argued there was insufficient evidence to support his conviction for attempted OWI-third offense.

The Court stated that for a conviction of an attempt crime to be supported by the facts, the State must prove the defendant specifically intended to commit the drinking and driving crime. There must have been some action in furtherance of that specific intent. That action must be unequivocal. Mere preparation or taking steps necessary for the crime is not enough. A person must take overt acts toward the commission of a crime.

In this case, the Court stated the evidence showed the Defendant was intoxicated, he was behind the wheel of his vehicle, seatbelt fastened, the engine was running, and the transmission was in park or neutral. The Court again said the Defendant had no specific intent to commit a drinking and driving crime.

The Court reasoned, “[T]evidence does not sufficiently establish that defendant was intending to use his truck as a motor vehicle as opposed to just a shelter. The mere fact that the engine was running does not sufficiently establish that defendant had or was intending to put the vehicle in motion. As one of the officers conceded, it was possible that defendant was simply keeping the truck warm while he slept.”

The Court went on to say the evidence did not show the defendant intended to operate his car. “There was no evidence that defendant’s truck was in motion when the police discovered him. While the defendant admitted driving his truck across the parking lot, he had subsequently parked it next to the storage building.”

The prosecution argued that the Defendant made a series of bad choices, therefore Defendant would have made the bad choice of driving once he work up. The Court blasted this argument as pure speculation. There was no indication Defendant would have driven after waking up. Furthermore, upon waking his blood alcohol content could have been under .08 or he could have awoken and called for a ride, etc.

In the end, the Court ruled in favor the Defendant.

Felony OWI Attorney in Ann Arbor and Ypsilanti

A third offense OWI will be charged as a felony, technically a sentencing enhancement. The first two OWI offenses are misdemeanors. On a felony OWI there are serious mandatory incarceration. Upon a conviction for a third offense OWI, a person must be sentenced either to a minimum 30 days in jail or prison time for 1 to 5 years. All offenses that fourth, fifth, etc. are referred to as OWI-third offense. Read about the Court Process for Felony Charges.

OWI offenses are contained with MCL 257.625

Contact Us

Call Sam Bernstein at 734-883-9584 or e-mail at

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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Practice Areas for Your Ann Arbor DUI Attorney

ArborYpsi Law represents clients charged with OWI & DUI and other crimes in Washtenaw County courts, including Ann Arbor, Ypsilanti, Chelsea, Pittsfield Township, and Saline. ArborYpsi Law also regularly appears in courts in western Wayne County, including Plymouth, Westland, Romulus, and Livonia.

Based in Washtenaw County, we travel throughout the metro Detroit area wherever a client has a case. In the last year we’ve traveled to East Lansing, Ann Arbor, Pontiac, Detroit, Jackson, Adrian, and many points in between.

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Call us to see how we can help you. We can sit down for a free an initial consultation. Convictions for drinking and driving crimes such as operating while intoxicated and operating while visibly impaired are serious because these convictions cannot be expunged.

We can walk you through the driver’s license sanction possibilities for each charge. DUI law is more complicated each year – the change in laws never favor the people in your position, either.

We fight DUI charges in courts throughout the area. We file motions and run jury trials.

Contact ArborYpsi Law at 734-883-9584