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Operating a Vehicle for a OWI Charge

Most people are surprised to learn that you can be charged with drunk driving if you are asleep in a parked car. In Michigan, the charge of operating while intoxicated applies if you have actual physical control of a vehicle.

Physical Control

Actual physical control is the legal standard by which a prosecutor must demonstrate operation in a drunk or drugged driving case. While some states use the term driving under the influence (DUI) or driving while impaired (DWI), Michigan lawmakers have opted to call this offense operating while intoxicated, or OWI for short. Operating may be more broadly defined than driving.

Keys in the ignition or within reach are not a legal standard, but they are factors in considering the legal issue of operation. As we know, it is commonly referred to as drunk driving, but the legal terminology is operation. So in order to show that you are operating, the prosecutor must show that you are in actual physical control, or in Michigan, that you had the ability to control the motor vehicle or the car. In Michigan, the term "operation" is rather broadly defined.

But even if you only have the ability to presently operate the motor vehicle, you can be successfully charged and possibly convicted for drunk driving or operating while intoxicated. The prosecutor can also use what is called circumstantial evidence to show that at some point prior, you were operating the motor vehicle.

So, the location of the keys, the position or their location in the car, the statements that are made, are all factors in first, considering whether someone is going to be arrested, second, whether they are charged, and third, potentially convicted. However, in Michigan you are permitted to use the vehicle for shelter—but again, you could still be arrested and charged. The firm and I have successfully handled a large number of these cases, and it's important to have an experienced trial attorney because these cases often require trial.

In order to prove actual physical control, a prosecutor must show that you actually had the ability to control the vehicle—regardless of whether the engine was running or not.

Operating If the Car Is Parked

If you are sitting in the driver's seat of a vehicle, Michigan law says that you have the physical ability to operate and control that vehicle, even if it is parked and the engine is off. Additionally, police can try to show that you were operating the vehicle while impaired or intoxicated prior to parking and falling asleep. In this case, the prosecutor would rely on circumstantial evidence to try and prove the OWI charge.

The question of public safety is sometimes to err on the side of caution rather than on the side of whether the person was actually operating the motor vehicle while they were intoxicated. So, if someone is sleeping it off in the car, there are certain factors that are worse or better, depending on how the facts are. Is the car running? Where is the vehicle? Is it in a lane of traffic or is it off to the side of the road?

Those are all factors that your attorney can fight, but unfortunately you can absolutely get arrested for "sleeping it off" in the vehicle. We have yet to see anybody in a trunk before—that may actually be the safest place to be to have an argument that you were not operating the vehicle.

When the jury takes a look at that case they may see fit to acquit the person because they think that the law is being inappropriately applied and we have had great success with those types of cases in the past.

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Patrick Barone is the ONLY choice for DUI defense. He was realistic from the start and made it a point to look at my case before taking my money. As a business owner, when I think of attorneys, I think of the "shark infested waters. Patrick is a shark alright, but his prey is not the client; it's justice for his client. Ten stars Patrick!! Chris F.
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Attorney Patrick Barone was very helpful and helped me understand the charge and sentence absolutely clearly. He also guided me through step by step helping me form a statement. His instructions were clear and detailed. It was obvious he cared about me understanding every important detail within my case. I would absolutely recommend this defense firm to anyone in need. Aaron B.
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The Barone Defense Firm is the firm I recommend. They are truly concerned about the person, not just the legal issue, but the person as well. They are the most knowledgeable defense firm that I am aware of, having actually written the book on DWI Defense. If you are faced with a DWI you will not find a more professional and skilled law firm. But, most importantly, they care about how the accused individual recovers his or her life when the case is complete. Very remarkable group of lawyers. William H.