DUI Survival Guide - Proofing Operation of Motor Vehicle
In simple terms, a drunk driving case in Michigan comes down to two major elements, was there operation of a motor vehicle, and is there evidence of some sort of intoxication, impairment or presence of a controlled substance.
Operating simply means driving a car, and most people assume this means hands on the wheel, put on the gas and the car moving down a road. This is the case 95 percent of the time, but there's a good amount of cases that have to look deeper into the actual definition of operation in Michigan.
In Michigan, operating a vehicle means being in “actual physical control” of the vehicle.
The case of People v Longeway, 296 Mich App 1, 818 NW2d 419 (2012) held that where a defendant started the engine, applied the brakes, shifted the vehicle from park to reverse, and then shifted it back to park, the defendant was “operating” the vehicle by that action and was properly charged with operating under the influence.
The case of People v Yamat, 475 Mich 49, 714 NW2d 335 (2006), the supreme court held that a passenger who grabbed the steering wheel of a car, forcing it off the road and causing a collision with a pedestrian, was by that act “operating” the vehicle.
There's plenty of cases that involve a sleeping driver, side of the road driver or a driver in a parking lot. In People v Wood, 450 Mich 399, 538 NW2d 351 (1995), the supreme court provided the following definition:
“[O]perating” should be defined in terms of the danger the OUIL [operating under the influence of liquor] statute seeks to prevent: the collision of a vehicle being operated by a person under the influence of intoxicating liquor with other persons or property. 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.
Most people imagine a drunk driving case to have a police officer who sees the driving, or at the very least an eyewitness who would come to court, point at the person charged, and say, YES, I saw them them driving. That is not necessary in Michigan.
A conviction for drunk driving is permissible based on circumstantial evidence that a suspect had been operating a motor vehicle at some time before the arrest, even where there is no direct testimony that the person was seen operating the motor vehicle.
This circumstantial evidence is backed up by the following cases: People v Solmonson, 261 Mich App 657, 683 NW2d 761 (2004); People v Smith, 164 Mich App 767, 417 NW2d 261 (1987); People v Schinella, 160 Mich App 213, 407 NW2d 621 (1987).
If a prosecutor is forced to rely on circumstantial evidence, the defense will be able to use a vague timeline of drinking and driving to their advantage. The prosecutor must proof the element of intoxication at the time of the driving, not when they are found by the police.
If a case involves a sleeping driver, or frankly any driver who is not actively driving, and we get a BAC number from them, a jury may have no idea how much time as passed and if that number is rising or falling; a case with a BAC number close to the legal limit becomes challenging for a prosecutor to prove a timetable and hence the intoxication.
In general, it is better to be charged with drunk driving where there is no direct eyewitness of the time that you were driving the car; anything that creates doubt helps your case. In a perfect world, we only have a circumstantial operation case, but with one poor choice, the case gets a lot stronger against you.
The majority of clients are extremely honest people who would never think to lie to a police officer. I agree that people should be honest, but they also need to practice self preservation when it comes to interacting with a police officer, and any law enforcement.
Unfortunately this defense gets blown up on many of my cases where the client is asked “were you driving” or they voluntarily admit to driving when there is no direct evidence. This question is only asked by an officer when he has not personally pulled you over, or has another eyewitness to your driving such as a 911 tipster or witness on the scene. You should not assist in your own prosecution, because you want to be honest and truthful; let the police and prosecutor earn their paycheck.
Even without these voluntary admissions of driving, the prosecutor can present indirect evidence of operation such as you own the car, insure the car, and you were found in or near the car when the police arrived. If you’re the only person at the scene, well then who else drove the car? Maybe the car was in an accident, or the hood is still hot, which would indicate the car was just running. Usually the police officer isn’t that lucky to have all of these factors to help their case.
These are all theories that the prosecutor needs to worry about, and as a former prosecutor, I’ve used these indirect theories on many occasions, but it still comes down to the prosecutor meeting their burden.
If the prosecutor has no direct evidence of driving then it’s a viable defense to a DUI; there’s no lying or misstating the truth either, because as the defense we don’t need to prove you weren’t driving or even comment on it.
Here is a quick sample of how I would present this theory in a DUI case in Michigan with an effective cross-examination of the officer. You will see that this cross-examination is NOT confrontational, but rather simply seeks admissions of uncertainty or truth.
Former NYC & Michigan Prosecutor
Selected - 2013, 2014, 2015, 2016 & 2017
Me: Officer, when you arrived at the scene, you observed both my client and two females standing outside of the car, correct?
Me: You did not observe my client in the vehicle at any time, let alone driving correct?
Me: And, upon investigation you learned that this particular vehicle was actually registered and insured by someone other than my client correct?
Me: At any time did my client indicate he was driving the car?
Officer: No, he didn’t say anything, I kept asking, but he kept telling me he wanted to speak to his lawyer.
Me: And when you received your radio run of an accident, there was no indication of who was driving correct?
Me: So officer, you come here today not certain that my client was actually driving the vehicle, which you came upon that night?
Officer: Well no, but I’m pretty sure it was him, I could just tell
Me: Again officer, despite your hunch, you have no direct evidence he was driving, because it could have been any of the three people, or even someone who ran away from the scene, isn’t that correct?
Officer: Yeah, I guess so