Andrew Mishlove
Wisconsin drunk driving law is clearly different from Michigan’s drunk driving laws. According to a recent Associated Press article entitled “Wisconsin Court Praises Drunken Concert Goer” a drunk teenager was ordered to leave a parking lot after a Dave Matthews concert. This despite the fact that the teenager told the cop he was drunk and sleeping it off.
The teenager was convicted at trial, but the conviction was overturned by the court of appeals who indicated that the teenager did the right thing by trying to sleep it off.
The teenager was represented by my good friend and top Wisconsin DUI lawyer Andrew Mishlove.
In Michigan, the teenager would probably not have fared so well. It is only in rare instances that it may be possible to have a case dismissed because there is insufficient proof of operation.
Nevertheless, every case is different, and at the Barone Defense Firm we have successfully won several cases where our clients charged with drunk driving were not actually driving while drunk.
According to Michigan DUI law, to “operate” a motor vehicle, a person must be in “actual physical control” over the vehicle. This means that if you are behind the wheel and the car is running, you are probably operating the vehicle.
However, this determination will depend on the specific facts of your case because the Michigan Courts have indicated that “once 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”.
Consequently, if your car is running, but does not pose a risk, then your attorney might be able to argue that you were not “operating”.
There is also a case in Michigan where an individual was found in a parking lot of a golf course, asleep at the wheel, with the engine running. For some reason this individual was charged with an attempt to drive while drunk, rather than the general crime of drunk driving. In this particular case the court indicated:
“that this evidence fails to establish that defendant possessed the requisite specific intent. The 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 arresting officers conceded, it was possible that defendant was simply keeping the truck warm while he slept”.
This case is a bit of an anomaly however, because the intent requirement for an attempt (specific intent) is different than for the general intent required for a typical drunk driving offense.
Sometimes a case with an issue of “operation” must be taken to trial so that the jury can make the final determination of these fact questions. The jury might not want to convict where the driver did the “right thing” and tried to sleep it off.
If you have a drunk driving case and you think you were not operating, then the facts of your case must be carefully scrutinized.
Contact us today for your FREE case evaluation.
This post was written by...
baronedefensefirm – who has written 203 posts on Michigan DUI and License Restoration Lawyers.
Patrick T. Barone is the author on two books on DUI defense including the well respected two volume treatise Defending Drinking Drivers (James Publishing), and The DUI Book – A Citizen’s Guide to Understanding DUI Litigation in America. He is also the author of a monthly DUI defense column for the Criminal Defense Newsletter, published by Michigan’s State Appellate Defender’s Office. Mr. Barone is an adjunct professor at the Thomas M. Cooley Law School where he teaches Drunk Driving Law and Practice. He is also on the faculty of the Criminal Defense Attorney’s of Michigan’s Trial Lawyer’s College where he provides trial skills training to Michigan’s criminal defense practitioners. Mr. Barone lectures nationally on various DUI defense topics, and he has appeared in newspapers, on television and on radio as a drunk driving defense expert. Mr. Barone has been certified as an instructor and practitioner of the Standardized Field Sobriety Tests and has also attended a 24-hour certification course at National Patent Analytical Corporation (the manufacturer of the DataMaster) and has thereby been deemed competent by the manufacturer to operate, perform essential diagnostic verifications and calibration checks on the DataMaster. Mr. Barone is a Sustaining Member of College for DUI Defense. Mr. Barone is the principal and founding member of The Barone Defense Firm, whose practice is limited exclusively to defending drinking drivers. The Firm is headquartered in Birmingham, Michigan.