Sitting in a parked car: can it be OWI in Michigan?

Yes, a person can be charged with OWI in a car that is not moving, but whether the charge holds depends on the facts courts look at. Michigan law says a person "operates" a vehicle by being in actual physical control of it, and the Michigan Supreme Court has held that a person who put a car in motion, or in a position posing a significant risk of collision, keeps operating it until it is returned to a safe position.^[1][2] This page walks through the parked-car situations Michigan's appellate courts have actually decided. For the general definition of the word, see what counts as "operating" a vehicle.

The test Michigan courts use

The Vehicle Code defines "operate" as being in actual physical control of a vehicle, or causing an automated vehicle to move in automatic mode on a highway, even from outside it.^[1] Jurors in OWI trials are told that "to operate means to drive or have actual physical control of the vehicle."^[6]

In People v Wood the Michigan Supreme Court tied the meaning of "operating" to the danger the drunk-driving statute aims at: a collision.^[4] The Court put it this way: "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."^[2]

The test is about the vehicle's position and the risk it poses, not about whether the wheels were turning at the moment police arrived. That is why the cases below come out differently on facts that can look alike.

Parked-car cases the courts have decided

Case	What police found	What the court held
People v Pomeroy (1984)	Driver asleep in a parked car outside a bar, engine running, manual transmission in neutral; he testified he got in only to sleep and turned on the engine for heat.[7]	Not operating when found; Wood later overruled the case's statement that a person asleep in a motionless car cannot be operating it.[7][4]
People v Fulcher (1984)	Driver asleep at the wheel, rear of the car in a ditch, front in the roadway, engine idling, automatic transmission in drive.[7]	Not operating when found; that reasoning was overruled to the extent stated in Wood.[7][4]
People v Wood (1995)	Driver unconscious at a fast-food drive-through window, slumped on the wheel, engine running, in drive, foot on the brake.[3]	Still operating: only his foot on the brake kept the van from moving, and it had not been returned to a safe position.[4]
People v Lechleitner (2010)	Intoxicated driver crashed, and the car sat in the middle of a freeway at night, creating a risk of injury or death to others.[8]	OWI causing death does not require the car to be in motion at the time of the accident, only that the death was caused by the intoxicated operation; the conviction was affirmed.[8]
People v Yamat (2006)	Passenger grabbed the steering wheel of a moving car during an argument; the car left the road and struck a jogger.[9]	"Actual physical control" does not require exclusive control (a felonious-driving case construing the same definition).[9]

Two more cases involved cars stopped on the shoulder with a sleeping or unconscious driver, but they decided a different question: whether there had been an "accident." In People v Keskimaki (1994) the Supreme Court held that a car parked on the shoulder with its lights on, engine running and the driver slumped over the wheel was not an accident, and suppressed hospital blood results that had been admitted on that basis.^[10] The Court described an earlier Court of Appeals case, Spencley, in which a car partly on a highway shoulder and partly in a motel driveway held a sleeping driver; that court said there was no accident, so the warrantless arrest was illegal.^[11] Spencley was decided in 1992, three years before Wood, so it is best read as history rather than as a guide to how arrest questions are decided today.^[11][4] The page on crash investigations covers the accident cases.

The arrest question and the trial question are different

Wood itself began as a suppression ruling: the officers had no warrant, so the arrest was lawful only if Wood was committing the misdemeanor in their presence by "operating" the van.^[5] The Court noted that this issue is separate from whether the evidence was enough to convict.^[5]

Michigan law gives officers several routes to a warrantless arrest, and a parked car can fall under more than one:

• A misdemeanor committed in the officer's presence, or reasonable cause for a misdemeanor punishable by more than 92 days.^[12]
• Reasonable cause to believe the person was the driver of a vehicle in an accident and was operating in violation of the OWI statute, even if the officer did not see the driving.^[13]
• A person found in the driver's seat of a vehicle parked or stopped on a highway or street, if any part of the vehicle intrudes into the roadway and the officer has reasonable cause to believe the person was operating while intoxicated.^[14]

At trial, the question is whether the evidence proves the person operated the vehicle; jurors are told circumstantial evidence, alone or with direct evidence, can prove an element.^[6][15] Wood noted that in Fulcher there had been significant circumstantial evidence of earlier driving.^[5] Disputes over whether the person drove at all, and how that is proven, are covered in disputes over who was driving.

Where the car is parked matters too

The OWI ban applies on a highway, in any other place open to the general public, and in any place generally accessible to motor vehicles, including parking areas.^[16] In People v Rea the Supreme Court held that a private driveway is "generally accessible to motor vehicles," because the phrase means usually capable of being reached by vehicles.^[17] Courts have also treated a shopping-center lot after hours and a private trailer-park road open around the clock as open to the public.^[18] The details are on the page about roads, parking lots and private property.

What people commonly get wrong

"Sleeping it off in the car is always legal." Not under current case law. Wood overruled the older statement that a person asleep in a motionless car cannot be operating it, and the question now turns on collision risk.^[4][2] One justice who joined Wood wrote separately that loss of consciousness is not a defense to drunk driving; that concurrence is one justice's view, not the Court's holding.^[19]

"Anyone drunk in a parked car is operating it." That is also too broad. In Pomeroy the Court found a sleeping driver in a parked car with the transmission in neutral was not operating, and Wood overruled only part of that reasoning.^[7][4] Each case depends on its facts, and outcomes vary.

"If the car was off the road, there was an accident." Keskimaki held that a car that had left the roadway and stopped on the shoulder, with no sign of a collision, property damage or injury, was not an accident, looking at factors such as whether there was a collision and whether injury or property damage resulted.^[10]

This page does not report a rule for situations such as keys kept in a pocket, a car with the engine off, or a person in the back seat, because none of the decisions above involved those facts. How the Wood test applies to them is a question for the court in each case.

Self-driving cars

Since March 27, 2014, "operate" also includes causing an automated motor vehicle to move under its own power in automatic mode on a highway or street, whether or not the person is inside it.^[20]

What follows an arrest in a parked car

Once a person is arrested for OWI, the implied consent law applies to the request for an evidential breath, blood or urine test, the same as after a traffic stop.^[21] The steps are described in Michigan's implied consent law and what happens after an OWI arrest. Whether the officer had enough to arrest is covered in probable cause for an OWI arrest.