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Defendant argues operating while intoxicated because he was not "operating" the vehicle.

In order to convict defendant of operating while intoxicated under MCL 257.625(1), the prosecution must prove beyond a reasonable doubt that:

(1) the defendant operated a motor vehicle

(2) on a highway or other place open to the general public or generally accessible to motor vehicles

(3) while under the influence of liquor or a controlled substance, or a combination of the two, or with a blood alcohol content of 0.08 grams or more per 100 milliliters of blood.

Defendant did not contest that he was intoxicated. The defendant's main argument is that he was not operating, and had not operated, his friend's truck when the police arrived.

In cases involving an unconscious or asleep driver, Michigan courts define "operating," as used within the operating while intoxicated statute, in terms of risk of collision, where a person is asleep or unconscious in a motionless vehicle, if the vehicle poses a risk of collision because it is likely to be moved, that person continues to operate the vehicle until it is in a position where it no longer poses such a risk.

The Court held that defendant was still operating the vehicle when the police arrived. The Court found that the defendant continued to operate his vehicle because the only thing preventing it from moving was his foot on the brake, leaving it in a position which created a significant risk of collision.

If a vehicle poses some sort of significant risk of causing a collision, either because it is not in park and in danger of moving while the defendant is asleep or unconscious, or because it is in the path of traffic when officers arrive, even if it is not operational, then the intoxicated person behind the wheel is operating the vehicle. When a vehicle is partially in a roadway or could possibly regain motion, and the driver is asleep or unconscious, this creates a situation where a crash is likely to occur.

Defendant was found in the driver's seat of a truck that was running and in drive, meaning the truck was in danger of being put into motion if defendant were to remove his foot from the brake. Further, the truck was still partially on a public roadway, which created a risk of collision. As such, court conclude beyond a reasonable doubt that defendant was operating motor vehicle on a public road while intoxicated.

Court held that there was sufficient evidence to support the defendant's conviction of OWI, third offense. He was sentenced to 120 days in jail and 18 months' probation.

At a minimum, anyone charged with a crime should obtain a consultation with an experienced criminal defense attorney to advise you and to help you navigate through the criminal justice system.

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