Drunk Driving Blog
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“Operating” a Vehicle?

Posted December 7, 2018

Under MCL 257.35a(a) “operate” or “operating” includes being in actual physical control of a vehicle . . . regardless of whether or not the person is licensed under the Vehicle Code as an operator or chauffeur. The plain language of MCL 257.35a(a) requires only ‘actual physical control,’ not exclusive control of a vehicle.

In a recent criminal case, the Michigan Supreme Court also considered the meaning of “operating” in the context of physical control. In this case, the police found the defendant unconscious in his van at a restaurant drive-through window. The van’s engine was running, the transmission was in drive, and the defendant’s foot was on the brake pedal, which kept the van from moving. The Court held that the defendant was “operating” the vehicle for purposes of the OWI statute, MCL 257.625(1): “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 Court of Appeals has affirmed OWI convictions in cases where there was circumstantial evidence to prove that a defendant was operating a vehicle while under the influence of intoxicants at some time prior to arrest.

People v Yamat, 475 Mich 49, 51, 57 (2006).

 

OWI or OWVI Causing Death

Posted November 10, 2018

A person, whether licensed or not, who operates a motor vehicle in violation of MCL 257.625(1), MCL 257.625(3), or MCL 257.625(8) and by the operation of that motor vehicle causes the death of another person is guilty of a crime. MCL 257.625(4).13 The penalties for violating MCL 257.625(4) are as follows: Except as provided in subdivisions (b) and (c), the person is guilty of a felony punishable by imprisonment for not more than 15 years or a fine not less than $2,500.00 or more than $10,000.00, or both. If the violation occurs while the person has an alcohol content of 0.17 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, and within 7 years of a prior conviction, the person is guilty of a felony punishable by imprisonment for not more than 20 years or a fine of not less than $2,500.00 or more than $10,000.00, or both.

If, at the time of the violation, the person is operating a motor vehicle in a manner proscribed under MCL 257.653a14 and causes the death of a police officer, firefighter, or other emergency response personnel, the person is guilty of a felony punishable by imprisonment for not more than 20 years or a fine of not less than $2,500.00 or more than $10,000.00 or both. This subdivision applies regardless of whether the person is charged with the violation of MCL 257.653a. MCL 257.625(4).

A person may be charged with and convicted of any of the offenses listed in MCL 769.36(1), including MCL 257.625(4), for each death arising out of the same criminal transaction, and the court may order the terms of imprisonment to be served consecutively to each other. MCL 769.36(1)(a).

 

Tests Taken for Medical Treatment:

Posted October 30, 2018

MCL 257.625a(6)(e) provides that if a driver is transported to a medical facility after an accident and a blood sample is withdrawn for medical treatment, the results of a chemical analysis are admissible in any civil or criminal proceeding to show the amount of alcohol and/or presence of a controlled substance in the person’s blood at the time of the accident, regardless of whether the person had been offered or had refused a chemical test. The medical facility or person performing the chemical analysis shall disclose the results of the analysis to a prosecutor who requests them for use in a criminal prosecution.

The Michigan Supreme Court has held that MCL 257.625a(6)(e) renders the results of blood tests admissible at trial irrespective of whether the physician-patient privilege was waived or a valid search warrant was obtained. People v Keskimaki, 446 Mich 240, 247 (1994).

If a driver is deceased after an accident, a blood sample shall be withdrawn in a manner directed by the medical examiner to determine the amount of alcohol and/or presence of a controlled substance. The medical examiner shall give the results of the chemical analysis to the law enforcement agency investigating the accident; that agency shall forward the results to the Department of State Police. MCL 257.625a(6)(f).

In a recent criminal case, the defendants consumed liquor and began drag-racing. One of the defendants ran a stop sign and was involved in a fatal accident. The other defendant stopped at the stop sign. The defendants were both transported to a hospital, where their blood was drawn. The defendants were convicted of involuntary manslaughter. The Court of Appeals held that the results of the defendants’ blood tests were admissible under MCL 257.625a(6)(e) even though the defendants were not under arrest at the time their blood was drawn.  The Court also rejected the argument of the defendant who had stopped prior to the accident that because he was not “involved in an accident,” his test results were inadmissible under §625a(6)(e).

 

 

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