Sleeping the effects of alcohol off in your car is a much better idea than driving home; however, many police officers are quick to make an arrest and accuse you of drunk driving.
If you were arrested by police for drunk driving in Michigan but believe you have a defense because you were sleeping and not operating than this article is for you.
Michigan OWI lawyer, Aaron J. Boria, has successfully defended hundreds of drunk driving charges. In fact, almost every single drunk driving charge Boria has defended has resulted in a lesser offense and many end up dismised. If you have charged with drunk driving call Aaron J. Boria today (734) 453-7806.
Drinking and Driving in Michigan
Any time you are charged with drinking and driving in Michigan, the prosecutor must prove beyond a reasonable doubt that you operated a motor vehicle on a public highway (or roadway generally open to the public, including parking lot) with a blood alcohol level at or above .08 grams of alcohol per 100 ml.
Whether or not sleeping off a buzz in a car should result in a DUI depends on the operating element. After laws are made by the legislature the courts interpret them and the interpretation is how the laws are applied to the facts in an individual case.
Operating a Motor Vehicle DUI
MCL 257.35a defines “operate” as follows: “Operate” or “operating” means being in actual physical control of a vehicle.
In City of Plymouth v Longway, 296 Mich App 1 (2012) the Defendant, Longway, was seen getting into her vehicle by an officer who suspeceted she had been drinking. When she got into the car she started the vehicle, applied the brake, shifted the vehicle from park to reverse, and before she took her foot off the brake she put the vehicle back into park. The car never moved.
The court of appeals in the Longway case held that the operation element comes down to actual physical control. The court gave some examples of what that means, and stated, “a person clearly has actual physical control of a vehicle when starting the engine, applying the brakes, shifting the vehicle from park to reverse, and then shifting back to park.” The court ruled that when the defendant took the car out of park she was physically controlling the vehicle and therefore operating.
If you decide that you need to sleep off that extra drink in your car before driving your best bet is to leave the car off, definitely do not take the car out of park, don’t even think about moving the vehicle even if its an inch. If the vehicle is running I would recommend that you sit in the backseat.
If you are still arrested and you claim that you never operated while intoxicated your lawyer can challenge the operating element in court. Many judges are reluctant to make a pre trial rolling on this issue in favor of the defense and will state that this is an issue to be decided at trial. I believe that the defense could successfully make a motion for a directed verdict at the close of the prosecutions case if there is no evidence of operation. Even then, there is a good chance the judge will say that this is a fact issue and the jury has to decide.
Michigan DUI Lawyer
If you have been charged with drinking and driving in Michigan you need an experienced lawyer that will fight for you and won’t just bend over. Contact Michigan DUI lawyer, Aaron J. Boria today for a free consultation (734) 453-7806