DUI Arrest - Asleep in Vehicle with Engine Off - Livonia 16th District Court Wayne County Michigan

Michael - Arrested for OWI - 16th District Court - Asleep in Vehicle - Engine Not Running
​
Michael had just left a friend's house where he had consumed a few beers over the course of the evening. Client decided to sleep it off for a few hours prior to driving his car, and while parked in his friend's parking lot, the police arrived for an unreleated domestic violence call. While the police were surveying the area for a potential suspect in the unrelated case, they spotted Michael asleep in his car, and approached the vehicle. 
​
The police attempted to wake Michael up, and inquire as to his identity as he had some similarities as the suspect they were on the lookout for; upon request a driver's license, it was clear that Michael was not the suspect. During this conversation, Michael admitted to drinking a few beers and was planning on driving home, but decided to sleep it off. 

The police ran Michael's driver's license and noticed that he had 2 prior convictions for drunk driving in Michigan and immediately told him to submit to a PBT test, which Michael blew a 0.15. The police then told Michael he had to perform a few field sobriety tests; Michael refused to take the tests, which the police officers then threatened to tow his car and arrest him. Michael was eventually arrested for drunk driving, and with two priors would now face a felony charge. 
As his attorney, the first and most important thing here is the lack of operation. Here we have my client sitting in a car with the engine off; there is no circumstantial evidence of recent driving such as a hot hood/engine, evidence of fresh damage/accident and there was no admission of recent driving, only a confused half-asleep client who forced into a PBT test and likely falsely arrested for drunk driving. 

An officer may make a warrantless arrest of a person found in the driver’s seat of a vehicle stopped or parked on a highway or street if any part of the vehicle intrudes into the roadway and the officer has reasonable cause to believe the person was operating the vehicle in violation of the law. Here my client is legally parked in a parking lot. 

The key case to rely upon here is People v Wood, 450 Mich 399, 538 NW2d 351 (1995). The heart of the case is whether the driver who is passed out or asleep at the wheel of a car is actually an "operator" and the Court in this case looks like the "significant risk of collision". Things like the engine on, driver's foot on the brake - the case is looking for "actual physical control of a motor vehicle". Based on Michael's case it does not appear that he was an "operator" 

How this case may play out: I would file a motion in this case to suppress all evidence obtained upon the seizure of my client. Once the police conduct an investigation for drunk driving with no sign of operation, I would want all evidence suppressed. I have some additional issues with the way the PBT was forced upon my client; he was not properly advised about the option to take or not take the test. I believe this would be a strong motion and a likely winner. If for whatever reason the motion failed, we would have a defense at trial for lack of operation, but these type of facts should lead to a suppression of evidence based on precedent.