People v. Wood

538 N.W.2d 351, 450 Mich. 399

• Court: Michigan Supreme Court
• Decided: August 22, 1995
• Docket: 99391, (Calendar No. 15)
• Status: Published

Opinions

Levin, J.

The question presented is whether Andrew Russell Wood was "operating] a [motor] vehicle,” within the meaning of the ouil statute, in the presence of the arresting officers.¹ We hold that he was, and that the circuit judge erred in suppressing evidence seized following his ouil arrest on the basis that it was obtained as a result of an illegal search in this prosecution for possession of marijuana with intent to deliver² and operation of a motor vehicle under the influence of liquor.³ The Court of Appeals affirmed.⁴ We reverse and remand for trial.

i

On the night of June 15, 1992, police officers found Wood unconscious in his van at a McDonald’s drive-through window in Howell. Wood was slumped forward, with his head resting on the steering wheel. The vehicle’s engine was running, and the automatic transmission was in drive. Wood’s foot, which rested on the brake pedal, kept the vehicle from moving. Wood had a twenty-dollar bill in his hand, and a Budweiser beer between his legs. He smelled of alcohol and, when the police awakened him, appeared confused. Wood was arrested, and the police searched the front seat of the vehicle. They found a cooler containing baggies of marijuana, money, a list of names, and a calculator.

Wood moved to suppress the evidence of the marijuana and of blood-alcohol and field-sobriety tests. The judge granted the motion, ruling that the evidence was the product of an unlawful arrest. The judge reasoned that the police were not justified in arresting Wood because they did not see him committing a misdemeanor by "operating” the vehicle under the influence of intoxicating liquor.⁵ The judge relied on this Court’s decision in People v Pomeroy (Oil Rehearing) and People v Fulcher (On Rehearing), 419 Mich 441; 355 NW2d 98 (1984).

n

A police officer may make an arrest for a misdemeanor without a warrant when the crime is committed in the officer’s presence.⁶ Because the police arrested Wood for ouil, the legality of the arrest depends on whether Wood was "operating] a vehicle” when the police found him. We conclude that he was.⁷

A statute provides that an "operator” is anyone "in actual physical control of a motor vehicle upon a highway.”⁸ This Court addressed the definition of "operate” in Pomeroy and the companion case, Fulcher. We there said that a conscious person in a stationary vehicle might have "actual physical control,” and thus operate it.⁹ We suggested that no particular state of mind is required to operate a motor vehicle. We also said that a person who is sleeping in a moving vehicle might be found to "operate” it.¹⁰

But the combination of a stationary vehicle and an unconscious driver in Pomeroy/Fulcher persuaded the Court that the defendants there were not operating their vehicles when found by the police.

In Pomeroy, the defendant was found asleep in a parked vehicle outside a bar. The engine was running, but the manual transmission was in neutral. Pomeroy testified that he had only entered the vehicle to sleep, and had turned on the engine and heater because he was cold.¹¹ No other evidence was offered that Pomeroy had driven while intoxicated.

In Fulcher, police found Fulcher’s automobile with its rear end in a ditch and the front end in the roadway. Fulcher was asleep in the driver’s seat with the engine idling. Fulcher’s foot was off the accelerator, but the automatic transmission was in drive. The vehicle was motionless. It had furrowed tire tracks into the ground.¹² In both Pomeroy and Fulcher, this Court found that the driver was not operating a motor vehicle at the time of arrest.¹³

hi

We conclude that "operating” should be defined in terms of the danger the ouil statute seeks to prevent: the collision of a vehicle being operated by a person under the influence of intoxicating liquor with other persons or property. Once a person using a motor vehicle as a motor vehicle has put the vehicle in motion, or in a position posing a significant risk of causing a collision, such a person continues to operate it until the vehicle is returned to a position posing no such risk.

The Pomeroy/Fulcher Court stated that "a person sleeping in a motionless car cannot be held to be presently operating a vehicle while sleeping.”¹⁴ We read that statement as reflecting an assumption that there was no danger of collision in such a case. The facts of this case show that this assumption was an overgeneralization. Pomeroy/Fulcher is overruled to the extent it holds, for purposes of construing what conduct is within the meaning of "operate a vehicle,” that "a person sleeping in a motionless car cannot be held to be presently operating a vehicle while sleeping.”¹⁵

iv

Wood had put the vehicle in motion and in a position posing a significant risk of collision. The vehicle had not been returned to a position of safety. Only Wood’s foot resting on the brake pedal kept the vehicle from moving forward. Were Wood, who had then become unconscious, to have slipped to the side, his foot might have moved off the brake, putting the vehicle in motion. Wood had not returned the vehicle to a position posing no risk of collision with other persons or property. Wé conclude that he continued to operate the vehicle when he was observed by the officers.

Reversed and remanded for trial.

Brickley, C.J., and Cavanagh and Mallett, JJ., concurred with Levin, J.

1 A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if either of the following applies:

(a) The person is under the influence of intoxicating liquor or a controlled substance, or a combination of intoxicating liquor and a controlled substance.

(b) The person has an alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine. [MCL 257.625(1); MSA 9.2325(1).]

2 MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c).

3 MCL 257.625(1); MSA 9.2325(1). Wood was also charged with operating a motor vehicle in violation of the terms of a restricted license. MCL 257.312; MSA 9.2012.

4 Unpublished opinion per curiam, issued March 31, 1994 (Docket No. 165079).

5 The judge also ruled that the circumstances had not constituted an "accident,” for which the police could arrest Wood for ouil without a warrant. MCL 764.15(1)(h); MSA 28.874(1)(h).

6 MCL 764.15(1)(a); MSA 28.874(l)(a). An officer may also, without a warrant, arrest a person who has committed a felony outside the officer’s presence. MCL 764.15(1)(b); MSA 28.874(1)(b). In the absence of prior ouil convictions, ouil is a misdemeanor. MCL 257.625(6)(a); MSA 9.2325(6)(a). An officer may arrest the driver of a vehicle involved in an accident if the officer has reasonable cause to believe that the driver was intoxicated. MCL 764.15(l)(h); MSA 28.874(1)(h).

See also People v Keskimaki, 446 Mich 240; 521 NW2d 241 (1994), in which the police found the driver slumped over the wheel of his vehicle while parked on the shoulder of the roadway with the headlights on and the engine running. This Court ruled that an "accident” had not occurred within the meaning of MCL 257.625a(9); MSA 9.2325(1)(9), providing for the use of the results of chemical analysis under certain circumstances.

7 This issue is distinct from the question whether there was sufficient evidence to convict Wood of ouil.

8 MCL 257.36; MSA 9.1836.

9 Id., p 446.

10 Id.

11 Id., pp 444-445.

12 Id., p 445.

13 Id., p 447. This Court noted there was no evidence that Pomeroy had driven earlier while intoxicated. In Fulcher, the Court recognized the significant circumstantial evidence of earlier driving by Fulcher. The majority nevertheless reversed the conviction because the trial judge, sitting as trier of fact, had expressly rested his finding that Fulcher was guilty on the.facts at the time of Fulcher’s arrest. Id.

14 Id., p 444.

¹⁵