State of Michigan v Margaret Andres

State of Michigan v MARGARET ANDRES

No. 258280

Michigan Court of Appeals

February 23, 2006, Decided

Unpublished

Subsequent case developments: Prosecutor's appeal denied by People v Andres (Mich, June 26, 2006)

Prior case history: Wayne Circuit Court. LC No. 04-007203.

Before: Borrello, P.J., and Sawyer and Fitzgerald, JJ.

OPINION

     PER CURIAM.

     Plaintiff appeals as of right from the circuit court's order quashing the information against defendant. We affirm. This appeal is being decided without oral argument in accordance with MCR 7.214(E).

     The police were dispatched to a gas station in response to a report of an intoxicated person's getting into a van and attempting to drive it. The police found defendant, in the parking lot, in a white minivan that was facing a bar. Defendant smelled of intoxicants, had bloodshot eyes, spoke in a manner that was difficult to understand, failed field sobriety tests, and eventually tested for a blood alcohol level of 0.26. 1 The van's keys were in the ignition, and the transmission was in drive, but the engine was not running, and the vehicle never moved. The police additionally observed an open pint bottle of whiskey within the vehicle.

      Defendant was charged with operating a motor vehicle while intoxicated, third offense , MCL 257.625(1), and having an open container of alcohol in a moving vehicle, MCL 257.624a. The district court concluded that the evidence that defendant, while intoxicated, had engaged the ignition and put the vehicle into gear, warranted binding her over for trial. The circuit court dismissed both charges, however, on the ground that defendant's conduct did not satisfy the statutory definition of operating a vehicle. On appeal, plaintiff presents argument in connection with the OUIL charge only, thus impliedly abandoning objections to the dismissal of the open-container charge. 2

      In reviewing a district court's decision whether to bind a defendant over for trial, the circuit court examines the entire record of the preliminary examination to determine whether the district court's decision constituted an abuse of discretion; in turn, we review de novo the circuit court's determination whether the district court abused its discretion. People v Green, 260 Mich App 392, 401; 677 NW2d 363 (2004). A court "by definition abuses its discretion when it makes an error of law." Koon v United States, 518 US 81, 100; 116 S Ct 2035; 135 L Ed 2d 392 (1996). See also People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).

     MCL 257.625(1)(b) prohibits intoxicated persons from operating a motor 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 . . . ." At issue here is not defendant's state of intoxication, but whether she was operating a motor vehicle.

     For this purpose, "operating" is 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." People v Wood, 450 Mich 399, 404; 538 NW2d 351 (1995). Accordingly, "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." Id. at 404-405.

     In this case, the evidence indicated that defendant, while intoxicated, put the vehicle neither in motion, nor in a position posing a significant risk of causing a collision. Instead, the evidence indicates that, despite her attempts, defendant failed to "put" the vehicle in to any condition, upon returning to it intoxicated. Instead, the vehicle remained parked, as it was before defendant tried to operate it. There is no suggestion that the vehicle was parked on a steep incline, such that putting it into gear but with the engine off might cause it to roll dangerously. No exertion on defendant's part was required to keep the vehicle from moving, but additional exertions would have been required to make it move.

     Plaintiff relies on People v Stephen, 262 Mich App 213, 215; 685 NW2d 309 (2004), where charges were reinstated against a defendant who was found asleep in his truck, with the engine not running, the transmission in park, and its keys in the defendant's pocket. However, the defendant had confessed to driving himself to that parked position while intoxicated. Id. This Court concluded not that the defendant, as found, was operating his truck, but rather that his confession, along with the circumstantial evidence, indicated that he had actually driven the vehicle some distance while intoxicated. Id. at 219-220. In this case, in the absence of any evidence that defendant had actually driven any distance while intoxicated, plaintiff seeks to prosecute her on the theory that she was operating the vehicle as the police found her.

     But because the evidence indicates that defendant in fact entered a vehicle while it posed no significant risk of collision, and failed to change that state of repose despite turning the keys and maneuvering the gear shift, she did not satisfy the definition of "operating" for purposes of the OUIL statute. Wood, supra at 404. Because defendant did not in fact operate her vehicle while intoxicated, the circuit court properly quashed the information.

     Affirmed.

     /s/ Stephen L. Borrello

     /s/ David H. Sawyer

     /s/ E. Thomas Fitzgerald