DRUNK DRIVING, Operating when the car is not running..

An interesting substantive question arises when the police arrive on the scene of a suspected drunki driving and do not ovserve and driving, and the vechicle is not running. In scuh cases the courts have nevertheless held that circumstantial evidence of operating may be sufficient to support and OWI or OWVI conviction. An example of circumstantial evidence of operation might be a situation where and officer arrives on the scene of an accident and observes several cars, not involved in teh accident, pulled over in an apparent effort to provide assistance. If the officer, by questiong the witnesses, gathers enough circumstantial evidence to establish probable cause, he or she could arrest a person for an OWI misdemeanor. Questions such as “When did you stop?” “How long has it been since you drove your car here?” or “Have you had anything to drink since stopping here?” might be enough circumstantial evidence to justify the arrest.

In People v Schinella, 160 Mich App 213, 407 NW2d 621 (1987), defendant was found in the early morning at the wheel of his ccar, which was off the road, dtraddling a ditch. The engine was not running, but the hodd and back tires were warm, and freshly broken tree branches had been placed under the wheels, apparently to provide extra traction; the facts sufficiently established “operation”.

One of the first questions the attorney should be asking is how did the officer arrest the client for a misdemeanor that he or she did not see? The simple answer is that the long-standing “misdemeanor arrest” statute was amended effectivew August 21, 2000, to provide for warrantless arrests for 93-day misdemeanors, including drunk driving offenses, if the officer has reasonable cause to believe the defendant operated the vehicle while intoxicated, regardless of teh officer’s personal observation of “operation” and regardless of the need for evidence of an accident. The officer no longer has to find evidence of an accident to make an arrest in these cases.

written by Adam Finn