OWI in a Motionless Car

DUI Motionless Car

Lansing Michigan OWI Attorney

Can you be charged and convicted of Operating While Intoxicated (OWI) if your car isn’t even running? The answer is maybe. It depends on the surrounding facts.

“Operating” a Motor Vehicle

Whether or not you can be convicted of an OWI hinges on whether the prosecution can prove beyond a reasonable doubt that you were “operating” a motor vehicle on a public roadway. In 2010 we found out that “operating” doesn’t necessarily mean “driving” when Mr. Lechleitner (whose BAC was over the legal limit of .08) was attempted to push his car off an icy road when an oncoming motorist swerved and ran into a guardrail which subsequently caused another motorist to crash into that car resulting in death. Mr. Lechleitner’s defense was that pushing the car with the ignition off was not “operating” it.[1] The Michigan Court of Appeals felt otherwise. In failing to adopt the defendant’s proposed “cause to function” standard for operating, the Michigan Court of Appeals held that a defendant is “operating” a motor vehicle when it is placed is motion or in a position that poses a significant risk of causing a collision. In other words, the car doesn’t have to be motion for an OWI.

Evidence of Operating a Vehicle: Case-by-Case Basis

Foot on the Brake While In Drive

There’s no bright line rule that says is A,B, and C are present then the motorist is operating for purposed of an OWI. It doesn’t really work like that. Instead, each case is different and circumstantial, as well as direct evidence, will dictate what constitutes “operating” for purposes of the OWI statute. In People v Wood[2], the defendant was found in a vehicle, engine running, and the automatic transmission in drive. Mr. Wood’s foot was on the brake pedal which kept the car from moving. The Michigan Supreme Court held he was “operating” the vehicle. The Court defined the term in relation to the danger the DUI statute seeks to prevent—the collision of a vehicle being operated by an intoxicated person. Once a car is put into motion, it poses a significant risk of collision. Mr. Wood’s vehicle would have been set in motion had his foot slipped off the brake pedal. The Court reasoned that he had not “returned the vehicle to a position posing no risk of collision with other persons or property.”

Asleep Behind the Wheel

In People v Spencley[3], the defendant was parked partially on a highway shoulder and partially in a motel driveway. The lights were on the engine was running. Mr. Spencley was asleep sitting in the car when officers approached him and subsequently placed him under arrest for OWI. The Court analysis didn’t focus so much on the operating aspect as it did that the officer’s did not have probable cause to place defendant under arrest as Mr. Spencley did not “operate” the motor vehicle infront of them. Generally, misdemeanors have to be committed in the officer’s presence for a warrantless arrest. There is an exception. An officer may place someone under arrest for OWI even if it wasn’t committed in their presence but only if there was an accident. In this case, there was not. The remedy was to suppress the evidence of the defendant’s BAC. A defendant could very well be considered to be operating a motor vehicle while asleep behind the wheel. It’s a case-by-case basis.

Using a Car as a Shelter as Opposed to Transportation

In People v Burton[4], the defendant was found in his truck at a golf course. His seatbelt was on, the engine running, and the gear was either in park or neutral. He admitted to driving on one side of the parking lot of the golf course to the other. The Court found that there was no evidence that the defendant intended to use his truck as a motor vehicle as opposed to shelter. The mere fact that the engine was running is not enough to prove intent to put it in motion. The lack of motion in this case was due to the truck being in park or neutral, which is distinguishable from the lack of motion in People v Wood as his foot being on the brake was what kept the car motionless.

Lansing Michigan OWI Lawyer

If you have been charged with an OWI, you need an experienced OWI attorney representing you. If you are charged with a drunk driving offense while your car was not in motion, you may have defenses that could get your case dismissed. Call Austin Legal Services, PLC today to speak to a Michigan DUI lawyer for a free consultation at (517) 614-1983.

Defending OWI charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Calhoun, Kent, Livingston, Jackson, Barry in the cities of Lansing, East Lansing, Mason, St. Johns, Ithaca, Battle Creek, Kalamazoo, Grand Rapids, Brighton, Howell, Jackson.


[1] Peo v Lechleitner, 291 Mich App 56 (2010)

[2] Peo v Wood, 450 Mich 399 (1995)

[3] Peo v Spencley, 197 Mich App 505 (1992)

[4] Peo v Burton, 252 Mich App 130 (2002)

Michigan Implied Consent Law

0_0_0_0_250_200_csupload_54757363Lansing Michigan OWI Lawyer

In Michigan, whether you are a licensed driver or not, you are deemed to have given your consent simply by driving a car on a public roadway to submit to chemical testing (breath, blood, or urine) for the purpose of determining the amount of alcohol or the presence of a controlled substance, or both, in your blood. The law, MCL 257.625, applies to drivers who have been arrested on suspicion of drunk driving as well as felonious driving, negligent homicide, manslaughter, or murder resulting from operating a motor vehicle. These laws were enacted when people quickly learned that the easiest way to get around the alcohol testing was to just simply refuse to comply. Thus, the Michigan legislature adopted the implied consent law to act as a deterrent and provide punishment for such refusal.

The police officer administering the chemical test must give you certain warnings or advisements before you submit to the chemical test. Sometimes they are spoken verbally but often they are prepared on a form for you to read and sign indicating that you understand each one. The officer must “substantially comply” with giving the warnings or advisements before the penalties for refusal can be invoked. The following are the warnings or advisements must be given:

  1. If you take a chemical test at the officer’s request, you may request a chemical test to be conducted by a person of your choosing (at your own expense and provided the request is reasonable)\
  2. Results of the test are admissible in a judicial proceeding and will be admissible as evidence of your guilt or innocence
  3. You are responsible for obtaining a chemical analysis of a test sample obtained at yoru own request
  4. If you refuse the officer’s request, a test will not be given without a court order, but the officer may seek a court order
  5. Refusing the officer’s request will result in a suspension of your driver’s license and six points will be added to your driving record.


Is Refusing a Chemical Test a Crime?

In several states, yes, but in Michigan, no. At least, not yet.


Can My Refusal be Used as Evidence Against Me at Trial?

Yes! Juries often conclude, rightly or wrongly, that if you refused it was because you were drunk, even though the judge will give them a jury instruction that states that evidence of a refusal is only for the purposes of concluding if the chemical test was offered and not for evidence of guilt. This can be very damaging. Many clients have wrongly decided that such refusal keeps an official blood alcohol content or BAC record out of their case only to find out how detrimental and costly, in more ways than one, that refusal can be.


Can I be Forced to Submit to a Chemical Test?

Only with a court order signed by a judge. Otherwise, your compliance must be voluntary. The court order can give the officer’s the right to physically restrain you even to the point of using a catheter for obtaining a urine sample.


Can Evidence Obtained From the Chemical Test be Used Against me for Other Crimes?

No. The results cannot be used against you in any non-DUI situations.


Can I Contest My Refusal?

Yes. You are entitled to an administrative hearing called an Implied Consent Hearing. The hearing must take place within 45 days of the arrest and at least five days notice of the hearing must be given to the officer and the prosecutor. The state has the burden of proving their case by a preponderance of the evidence (more likely than not, 50.1%) that a violation of the Implied Consent Law has occurred. These are the factors that the state must prove:

The officer had reasonable grounds for a drunk driving investigation.
You were placed under arrest.
Did you refuse the officer’s chemical test
Was the refusal reasonable
Were you advised of your Implied Consent rights

With the burden of proof so long, the state usually wins. The best way for a defendant to win is for the officer to be a no-show which does happen sometimes. Although losing this battle can sometime help you win the war because it provides you with the officer’s testimony under oath which can later be used at motions or trial in your DUI case. It also locks the officer into a story which can later be used for impeachment. Remember, losing the Implied Consent hearing has no bearing on your DUI criminal case.

If you lose your Implied Consent Hearing you can always appeal to the Circuit Court, but they are rarely successful.


What Constitutes a Refusal?

It’s not always as clear cut as you think it is. It is important to inform the officer of any health or breathing problems that you may have, particularly if given a breath test on the DataMaster. For example, emphysema can cause a breath sample not to register if you aren’t able to breath for the requisite amount of time. The officer may think you are refusing or purposely trying to throw off the machine and many have been falsely accused of refusing this way.


What are the Penalties for Refusal?

First Offense: License suspended for one year and six points added to your driving record

Second Offense: License suspended for two years with six points added to your driving record

A second offense is constituted if it occurred within seven years of the first offense. For first offense refusals, the license suspension can be appealed to the Circuit Court for “hardship” which means they could grant you a partial or restricted license. With the second offense, there is no hardship appeal.


If you have lost your license because of an implied consent violation, you will need to represented by an experienced implied consent hearing attorney to get your license back or get a restricted license issued by the court. Call Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan OWI attorney about your implied consent hearing.


Representing DUI and OWI clients at implied consent hearing throughout Michigan in the counties of: Ingham, Eaton, Clinton, Jackson, Barry, Livingston, Kent, Washtenaw in the cities of Lansing, Mason, Hastings, St. John, Charlotte, Brighton, Howell, Ann Arbor, Jackson, and Grand Rapids.