Michael J. Nichols

In The News

Wednesday, December 15, 2010

“OPERATING” IN OPERATING-WHILE-INTOXICATED CASES IS DEFINED FROM A LANSING-OWI/DUI-ARREST-AND-CONVICTION BY THE MICHIGAN-COURT-OF-APPEALS … AGAIN

By Michael Nichols
Categories: Michael J. Nichols

               The Michigan Court of Appeals ended 2010 by imposing a new definition on “operating” for some facts not yet seen in Michigan Courts. “This is an important opinion by the Court of Appeals because it appears to me that these facts have not yet been seen,” said OWI expert-attorney Mike Nichols.

The case is “People v Lechleitner” and it happened November 22, 2007 on a highway in Ingham County. “The amazing and tragic twist of fate is that the driver was not behind the wheel when the victim was struck. Mr. Lechleitner was trying to push his truck off a slippery freeway after he struck the right and then left guardrail after he lost control. The victim swerved to avoid the truck then pulled over to check on the driver. “That is when another vehicle drove by, swerved to avoid the truck and struck the victim,” Nichols said.
The defendant argued during trial that the court should dismiss the case because he was not “operating” as defined by the case of People v Wood. The judge disagreed, stating that the key fact was that “the vehicle was in a position posing a significant risk of causing a collision …” The Court of Appeals upheld the trial court’s reasoning and found that Mr. Lechleitner’s act of putting the vehicle in motion met the definition of operating since it was in the middle of the freeway taking up two lanes of traffic at the time of the accident.  Any negligence by the victim did not relieve the defendant of liability under Michigan law since it would not be the type of negligence that was “reckless.” Reckless acts are the type of acts in the eyes of the law that are taken despite the fact that the actor should know that severe consequences would most likely result.
“We still have very good law on the definition of ‘operation’ in Michigan,” Nichols said. He added, “as long as you are legally parked, you are not operating so long as the vehicle transmission is in park and you did nothing to try to put it in drive. In that case, the prosecutor has to prove with other evidence that you previously drove the vehicle to the location where it was found and that you were legally intoxicated or impaired when you did so.” Mike Nichols litigates complex criminal cases focusing on OWI/DUI and OWID (impaired by drugs). He recently won a dismissal for a client who is a former judge in Michigan based on the lack of evidence that she was operating or operated. He is author of the Michigan OWI Handbook for Thomson Reuters West Publishing.

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.