Most people imagine a DUI case involving a moving vehicle with a police officer putting on their sirens and lights, and pulling that driver over. Occasionally a client of mine is not even awake when approached by the police; this is the sleeping operator defense.
Current case law states that a person sleeping in a motionless car cannot be held to be operating, and therefore cannot be convicted of drunk driving. The key to this law is the “motionless” aspect. The court does not end their analysis once they see a sleeping driver, the court is also looking for evidence that the vehicle had previously been in motion or could go into motion in it’s current state. Without present operation, the prosecution has to piece back the past to show the element of operation.
There’s plenty of cases where driver’s pass out at a drive-through or at a red light with their foot on the break. This is evidence that the driver WAS operating before passing out, and at any moment the car can go into motion if their foot leaves the break. The court looks at the danger that the car poses, and if the car can be put into motion because of a significant risk of causing collision or damage to property; operation does not end until the car is returned to a position that no longer poses this risk.
When I evaluate a case with a client who tells me they were passed out at the wheel, we’re looking for where the car was located when the police arrived, and if the ignition is on, and if the car is in park or not. We’re also looking for signs that the prosecution can show that at “some point before” the police arrived to find the sleeping operator, the car was in motion.
In a sleeping operator case I typically file a motion to dismiss for two reasons. One, it creates potential leverage to work out a great deal, and two if we have the right facts, it may lead to a dismissal of charges. We’re looking for facts where the engine is off; that’s ideal, but not typical. If we have a case where the engine is on, and my client is “sleeping it off”, we’re hoping that the car is in park. If we have those facts, we still need to overcome the circumstantial evidence that a prosecutor may present to show prior operation.
It’s important to put together a timeline; the longer the car has been sitting there unbothered by the police, the better for the case. The prosecutor has the burden to show the driver HAD operated that vehicle either impaired or intoxicated by law. As time goes by, the field sobriety tests and BAC readings become a lot less reliable for the prosecution’s case.
DUI Michigan 911 Tip Called in lead to traffic stop and arrested for drunk driving - move to dismiss
I handle a number of DUI cases each year, which originate with a 911 call placed by an eyewitness to the police department. These calls are made by other drivers, pedestrians and sometimes pranksters. The one thing they have in common is they are usually referred to as anonymous tips.
Sometimes we have an actual physical known witness, but that is quite rare. These “tips” result in a number of traffic stops, usually without additional direct officier observation of driving or even a traffic code violation.
Michigan law says that an anonymous tip by itself cannot create the reasonable suspicion necessary for a Terry stop, but if the officers see for themselves that part of the information in an anonymous tip is true, then the officers may reasonably rely on it. The court standard is known as totality of the circumstances.
For example, if someone calls 911 and reports a red pickup truck driving crazy on I-75, but very little additional information, it’s unlikely the police can just pull over the first red pickup truck they see on I-75. The Court is looking for adequate indicia of reliability. Nothing prevents them from making the stop, but if fruits of a crime are discovered or suspicion of a DUI offense comes from the stop, then a motion to dismiss should be filed immediately.
This same red pickup truck has a better argument for being pulled over if the caller also provided a license plate number, the make and model, possibly a description of the driver or any other specific facts about poor driving, and the officer can confirm these facts. There is no right or wrong amount of additional information; each set of facts will dictate a different evaluation. Further, if the cops show up on I-75 and spots a red pickup truck, and he sees the driver commit a traffic violation, it no longer matters what the 911 call says, because they have an independent reason to pull the truck over.
The Michigan Supreme Court has previously ruled that citizen-informants reporting suspicious activities that they have personally observed should be deemed inherently reliable “when the information is sufficiently detailed and is corroborated within a reasonable period of time by the cops own observations.”
Anytime a 911 call is the basis of a traffic stop for a DUI case, it’s important to begin with the source of the information. Actually listening to the 911 call, and any subsequent dispatch recordings or logs. It’s a viable defense to challenge a traffic stop when the police officer lacks independent reasoning for conducting the stop.
This is a good situation to lock the officer into his police report, and get him to admit that he himself did not observe any traffic violations, but rather relied on the 911 tipster information. He may say he verified the license plate or the general area where the car was, but this is ripe for challenge. If the officer observed his own reasonings, the evaluation would be outside the scope of the 911 tipster defense theory. If he did not, then we need to lock him into this story, because we can then focus our efforts on discrediting what the caller said, and relying on the caller’s observations.
Here is an example of how my client would challenge their case with a 911 tipster involved. Let’s assume that someone calls 911 on my client and reports that my client is driving a red pickup truck and going in and out of lanes, and the caller says my client is driving drunk; they provide the streets where they saw the driving, and the direction the truck is headed.
First we need to assess whether this is an anonymous caller or was a name and other information provided. If witness information is available then they would likely be a witness for the prosecution, and they would be cross-examined about their observations.
If the caller is truly anonymous then a motion to dismiss would be viable without confirmation by the police. This would mean that when the officer found the red pickup truck, the truck was complying with the law, and the only reason for the traffic stop was the information from the call. We could argue that the caller was wrong, lying, mistaken or simply this is a different red truck. No matter the truth, the burden is on the prosecutor here.
We would argue that based on the totality of the circumstances, even if a license plate is confirmed or some other information, that absent the corroboration of the poor driving or traffic violations, the stop was illegal, and any evidence thereafter should be seized.
This argument has been a winner before in Michigan courts, in the People v Barbarich case, the Court stated that “an uncorroborated tip emanating from an unidentifiable source lacking any pertinent detail and suggesting only an ordinary traffic violation” did not justify the warrantless search and seizure.
The argument is that the law cannot allow any prankster or disgruntled driver to initiate a seizure of another motor vehicle without an officer’s confirmation. Driver’s have the right to be left alone, and cannot be harassed on the road absent a valid reason to be seized in their cars.
This type of motion really comes down to the facts of your case, and the judge hearing the motion. It can go either way, but this type of challenge is always worth the effort, because your case can be dismissed on the spot without the risk of trial.
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.
A major DUI defense in my practice is pushing forward with the theory of lack of operation. This simply means the prosecutor does not have any direct evidence that you were driving a car.
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. 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 100’s of 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 true 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.
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
If you are charged with a DUI in Michigan, and the officer has no direct observation of your driving, then there is uncertainty, which provides reasonable doubt to a jury, which should lead to a not guilty verdict. Even if you’re the only one at the scene, I’ve had many cases where the real driver ran away from the vehicle and left my client holding the bag. The lesson here is to not say a word, and ask for your attorney at all times. Handing your license to the officer is all you have to do upon questioning of that officer.
For a defense like this to work, the jury must be properly educated on the correct levels of legal proof. It’s fine if a jury thinks it’s reasonable you were the driver, probable that you were the driver, 51/49 that you were the driver, and can be clearly convinced you were the driver, but if we give them a reason to doubt it, then you’re entitled to a not-guilty verdict by law.
Drunk Driving Michigan Defense - Lack of Operation because the road is NOT a public road or generally accessible to the public
Along with the motor vehicle requirement to be found guilty, the prosecutor must also show that you were traveling on a road/highway, which was open to the public. If you were not doing so, there might be grounds to dismiss based upon an illegal stop/seizure, or you could be entitled to a not guilty verdict at trial based on lack of evidence of one of the elements.
The law defines open to the public under MCL 257.625(1) as any “other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state.” So if you’re operating or were previously operating, and you’re now in a parking lot then the law still applies to your case. The same holds true if you pull into your own driveway; you can’t escape the law by ending up in a non-public parking spot. Parking lots and pit stops have been to be “generally accessible to motor vehicles” because vehicles are routinely permitted to enter for the purpose of driving and parking.
A viable defense may be available if an officer finds you in a restricted area or on private property such as your driveway, but he/she doesn’t have evidence that you were otherwise operating on a public road, which is open to the public. The prosecutor may argue that if you’re found sitting in your driveway with the engine on, well you were previously driving, or the engine is off, but the hood is still hot. While these are viable arguments by the prosecutor, the burden is on them to actually provide the proper proof of that operating on a highway open to the public.
It’s important to do a full analysis on the area, and who can enter, and who cannot enter, along with the hours of operation, and restrictions placed on the area. The more restrictions, and less access, the better the possible defense. It’s important to consider all posted signs, barriers or obstacles for entering. If you believe you were “seized” by an officer on private property, this could be a defense.
A great defense to a DUI charge in Michigan is simply lack of motor vehicle. This is a rare defense, because a police officer is unlikely to pull over or stop a non-motor vehicle as defined under Michigan law, it’s in the law books and jury instructions for a reason, and it is worth exploring. As technology continues to advance the definition of “motor vehicle” will continue to either shrink or expand. It will be interesting when self-driving cars become a reality, and how this portion of the law will be treated.
In Michigan, the elements, which the prosecutor needs to prove in a DUI case are the following.
The obvious “motor vehicle” is what you normally consider a vehicle/car, such as your Jeep, Ford, Chevy and hundreds of other companies and models. It has also been held by Michigan Courts that a “motor vehicle” can also be a go-cart, a snowmobile, a motorized boat, a dune buggy or similar motorized device. Many people ask me if they can ride their bikes after drinking alcohol, and I tell them under current law, no this is not considered drunk driving. If you’re exclusively powering the bike to move then you are not breaking any law.
While it's not common, there are plenty of DUI cases in Michigan where the police arrive at the scene and there is no "driving" taking place. The person is actually outside the car, the car engine is probably off, and they are simply waiting around for the police or for a repair truck.
In this type of case, the prosecution is going to have an issue with trying to prove beyond a reasonable doubt that you were indeed driving the car. Hopefully, the suspect DID NOT make an admission to the police about driving the car, which will be strong evidence against. So the first thing to do is point out that no admission was made, and the officer has no personal direct knowledge of driving.
Attorney: Officer Smith, did my client state at any time that he was the driver of the Jeep Cherokee
Officer: No, he did not
Attorney: And you never saw my client driving, correct?
Attorney: And you never actually saw him behind the wheel
Attorney: You in fact never even saw him in the car
Officer: Right, I didn't see that
Attorney: In fact, nobody called 911 or reported anything to do with the Jeep Cherokee or my client
Attorney: The car wasn't running when you arrived, the lights weren't on, in fact the doors were both closed.
Officer: Yes that's correct
Attorney: In fact, the only basis for making a DUI arrest of my client is because he was near the car
Officer: Right, that's why I arrested him
Attorney: So while it's possible he was the driver as you assumed, it's just as likely that he had nothing to do with the car.
Officer: I thought he was the driver, but yes both are possible I guess.
In this scenario the officer has provided exactly what you need to win a DUI case in Michigan. The officer admitted that he wasn't sure who the driver was, and there are two just as likely scenarios, which the jury should conclude is reasonable doubt to acquit, or even for a judge to order a directed verdict due to the prosecutor not being able to prove one of the elements of the offense.
Michigan case law used to be that a “person sleeping in a motionless car cannot be held to be presently operating a vehicle while sleeping.” People v Pomeroy, 419 Mich 441, 444, 355 NW2d 98 (1984). This meant that someone could NOT be convicted of drunk driving in Michigan, if they were sleeping in a car that was not moving and there was no other evidence that they were previously driving while drunk.
More recently, recent Michigan case law states otherwise. In People v Wood, 450 Mich 399, 404–406, 538 NW2d 351 (1995), the court redefined the operation of a vehicle in OWI cases in terms of the danger that it poses and stated that a person is operating a motor vehicle as a motor vehicle when he or she has put the vehicle in motion or in a position posing a significant risk of causing a collision or damage to property and that the operation continues until the vehicle is returned to a position where it poses no such risk. This ruling creates more of a subjective determination for each case. It could mean the difference between passed out in your car in a parking lot with the car in park vs sleeping in the middle of an intersection with your foot on the brake.
In a circumstances where there is no present operation under the law, the prosecution can still prove you previously were driving and drunk even though you aren't currently doing either. A 2004 case involved a defendant who admitted that he drove to a fairground to sleep off the effects of having too much to drink, “struck the parking log while attempting to leave the fairgrounds, and turned off the engine and went to sleep after he was unable to dislodge his truck.” Similarly the court of appeals in Michigan reinstated a conviction in a case in which defendant’s vehicle was found off the road and straddling a ditch. Defendant was behind the wheel, awake but glassy-eyed. While the engine was not running, there were indications at the scene that defendant had attempted to dislodge his vehicle just moments before.
In sum, the prosecution must present some proof that the person had operated the vehicle while intoxicated or impaired to sustain a conviction. When a person uses a vehicle as a shelter, he or she is not putting the vehicle in motion or in a position posing a significant risk to people or property as required under current Michigan law.
The prosecutor has the burden of proof and, to obtain a conviction for operating while intoxicated or impaired, the state must show that, at the time of the motor vehicle’s operation, the person was intoxicated or impaired. This means that the prosecutor will have to present evidence showing the time the person last drove and the person’s intoxication status at that time. If it cannot be determined with certainty what time the person was driving and when he or she began to sleep, then the BAC and the evidence from field sobriety tests are irrelevant.
Recent Michigan court decisions have impacted how chemical test results are handled in terms of admissibility, but the Wager and Campbell decisions have not really impacted the is single-car accidents. It would appear that the prosecution will have to establish a time of the operation of the motor vehicle to make any test relevant. These types of cases are potentially ripe for suppression of test results if the prosecutor can't show when the accident occurred/driving took place. Despite this common sense, courts in Michigan are still hesitant to jump on this bandwagon.
MCL 257.625a(6)(a) provides that the amount of alcohol or the presence of a controlled substance as shown by chemical analysis is “presumed to be the same as at the time the person operated the vehicle.” If the prosecutor can't show when you drove the car, it will be difficult to show the relevancy of test results.
The presumption as to the “relation back” of test results to the time of operation is also present in the Michigan jury instructions. The statutory presumption and accompanying jury instruction provide one of the most problematic aspects of the trial of a drunk driving case. The statute and the jury instructions pit the prosecutor’s burden of proof of beyond a reasonable doubt against a presumption that seems to improperly shift that burden.
If you have a single-car accident case where the time of operation is unclear or frankly unknown, you could potentially have your chemical test suppressed if handled in the proper fashion.
DUI Attorney & Former Prosecutor Jonathan Paul