Many people are surprised to hear that you can be arrested for drunk driving despite being asleep in your own car.  Most people believe a DUI arrest only happens out on the roads with some sort of traffic violation.  In Michigan, I see a lot of arrests of people "sleeping it off"  

As a former prosecutor, I can tell you that these kinds of facts are not easy on the prosecution. Most DUI cases involve visible driving, a traffic violation, pulling the car over, some field sobriety and chemical tests - those facts go in front of a jury and get sorted out.  It becomes more difficult for a prosecutor to proof his elements (driving and "being drunk" under the law) when the person arrested was sleeping, and not driving.  

​The most recent case on this topic is People v Wood, 450 Mich 399, 404–406, 538 NW2d 351 (1995), where defendant was found asleep behind the wheel with a beer between his legs at a fast food drive-through. 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.

If I have a sleeping client, I look for a few things. 

1 - Where was the car parked?
2- Was it "parked" in that the car was in park, or is my client's foot on the break?
3- What if any statements did my client make about previous driving?
4 - Is the engine on, if not, did the police observe signs of driving such as hot tires or hot engine?
5 - Is there any independent evidence of driving such as an eyewitness?

Assuming my client is in a parking lot, legally parked, with the car in park, we're off to a good start.  We're not going to have many options if my client is passed out at a traffic light or in a fast-food drive thru.  

If the engine is on that's still alright, especially during colder months when common sense says someone might need heat in the car to sleep comfortably and safely.  Many times a case can be won on motion depending upon what came out of my clients mouth when confronted by the police.  These "conversations" do not require Miranda as under the law these conversations are part of a police investigation and the driver is not yet in custody.  If the client blurts out that they were drinking at a bar and they parked to fall asleep, then we're not going to win the motion.  

The Stephen case clarified that where there is sufficient evidence that the driver operated the vehicle while intoxicated at some point before the encounter with the police, a conviction can stand. In this case, the court found sufficient evidence to support an OWI charge where defendant 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.”

If the client doesn't say anything about previous driving then the prosecutor will have a very difficult time providing enough evidence to overcome a suppression motion that a jury could find that the client legally operated that evening and to ultimately find that person guilty. 

If you or someone finds themselves in this grey area of driving, but not driving, let's look at the police reports, review the videos and audio and see what we're working with. 

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.  ​

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. ​