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Saturday, October 12, 2019
By Michael Nichols
Categories: Michael J. Nichols
The mechanical sleeping bag is how some people phrase it - but using your car to "sleep it off" is not violating Michigan's Drunk Driving law. "We recently obtained a dismissal in East Lansing because law enforcement made an arrest based on a misunderstanding of what it means to be 'operating,'" says Michigan drunk driving attorney Mike Nichols. The driver slept in her car outside her friend's house. She had a very high bodily alcohol content - but so long as the vehicle was not in gear - she was free and clear.
The term operating is defined in People v Wood, 450 Mich 399 (1995) as having the engine running AND the car in gear so that it "poses a danger." Nichols adds "many people recall the famous case of a former Michigan judge who was resting her eyes in a restaurant parking lot in Okemos. Charges against her were dismissed because there was no evidence that she was "operating" or had been operating in an intoxicated state," he adds. There is a lot of misperception out there about the term and how it is applied in drunk driving law - even among police officers and attorneys.
The key is if the vehicle is legally parked or at least not in the road or off to the side of the road because in that situation, the prosecutor can pursue a case through circumstantial evidence that the driver had been operating and was intoxicated when they were operating.
Mike Nichols is a leader in Michigan criminal law and literally wrote the book on DUI Law and Practice in Michigan for West Publishing. mnichols@nicholslaw.net or 517 927 4734.