What Counts as "Operating" a Vehicle Under Michigan OWI Law

In Michigan, "operating" a vehicle means being in actual physical control of it, whether or not the person is licensed.^[1] The jury is told that "to operate means to drive or have actual physical control of the vehicle."^[2] The Michigan Supreme Court has added that once a person puts a vehicle in motion, or in a position posing a significant risk of causing a collision, the person keeps operating it until it is returned to a position posing no such risk.^[3]

This page explains the definition and how courts have applied it. The fact patterns courts have decided about parked and stopped cars are collected in sitting in a parked car, and disputes over who was driving in disputes over who was driving.

Why "operating" matters

Operating is the first element of OWI. The Court of Appeals describes OWI as requiring proof that the defendant (1) operated a motor vehicle, (2) in a covered place, (3) while intoxicated.^[6] The OWVI and drug offenses use the same words: a person "shall not operate a vehicle."^[7][8] Implied consent to chemical testing also attaches to a person who "operates a vehicle" in a covered place.^[9] Each element must be proved, so intoxication alone, without proof of operating, does not establish OWI.^[6][10]

The statutory definition

MCL 257.35a gives two ways to operate:^[1]

1. "Being in actual physical control of a vehicle."^[11]
2. "Causing an automated motor vehicle to move under its own power in automatic mode upon a highway or street regardless of whether the person is physically present in that automated motor vehicle at that time."^[12]

The automated-vehicle clause has applied since March 27, 2014.^[12] Both parts apply whether or not the person holds a license.^[1]

The definition does not mention whether the engine is running, where the keys are, or which seat the person is in. Courts have filled in the meaning through case law, mainly the Wood test described below.^[3]

The Wood test: operating continues until the risk ends

In People v Wood (1995), the Michigan Supreme Court tied the meaning of operating to the danger the statute targets. In its words, "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."^[3][5]

The test has two parts:

• Starting to operate. Putting the vehicle in motion, or in a position that poses a significant risk of a collision.^[5]
• Continuing to operate. The person keeps operating until the vehicle is returned to a position posing no such risk. Stopping is not by itself the end of operating.^[5]

Because the test turns on risk and position, two cases that both involve a stopped car can come out differently. Neither the statutory definition nor the Wood test makes any single fact, such as a running engine, the location of the keys or sitting in the driver's seat, decisive on its own.^[1][3]

A stopped or crashed car can still be "operated"

People v Lechleitner (2010) applied the Wood test to a fatal crash. The intoxicated driver crashed his car, and it sat in the middle of the freeway at night, creating a risk of injury or death to others.^[4] The Court of Appeals affirmed his conviction for OWI causing death and held that the statute does not require the defendant's vehicle to be in motion at the time of the accident; it requires that the victim's death be caused by the defendant's operation of the vehicle while intoxicated.^[4]

The Supreme Court's causation rule for death cases fits with this. In People v Schaefer, it held that the defendant's operation of the vehicle, not the intoxicated manner of driving, must cause the death.^[13] See OWI causing death.

Arrest of a person found in the driver's seat

Michigan law gives police a specific arrest power for one stopped-car situation. A peace officer may arrest without a warrant 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 in violation of section 625.^[14] Officers may also arrest without a warrant a person they have reasonable cause to believe was the driver in a Michigan accident and was operating in violation of section 625, even though they did not see the driving.^[15]

These are rules about when an arrest is allowed. Whether the person was actually operating is a separate question for the court or jury at trial.^[6]

Other definitions of "operate" do not control OWI

Michigan statutes define "operate" differently for different purposes, and a definition from one law should not be carried into another.

• Hand-held device law. For MCL 257.602b only, "operate" means to drive or assume physical control on a public way, including while temporarily stopped for traffic or a light, and "does not include a motor vehicle that is lawfully parked."^[16] The general definition in MCL 257.35a that applies to OWI does not contain that exclusion.^[1][11]
• Boating. For the boating-under-the-influence statute, "operate" means being in control of a motor-propelled vessel while it is underway and not docked, at anchor, idle or otherwise secured.^[17] See boating under the influence.
• Marijuana laws. Both the medical and the recreational marijuana acts say they do not authorize operating, navigating or being in physical control of a motor vehicle while under the influence of marijuana.^[18][19]

What counts as a "vehicle"

Section 625 uses the word "vehicle," which is broader than "motor vehicle."^[20] The Vehicle Code defines a vehicle as every device in, on or by which a person or property is or may be transported or drawn on a highway, except devices moved exclusively by human power and devices used only on rails.^[21] On that basis, the Court of Appeals held in People v Lyon (2015) that a person riding a personal electric scooter on a highway could be prosecuted for OWI.^[22] Snowmobiles, ORVs, boats and aircraft are covered by their own statutes; see snowmobiles, ORVs and other vehicles.

How operating is proved

Evidence offered on operating can include an officer's or other witness's account of the driving, video, and circumstantial evidence such as the person's position in the vehicle and the vehicle's condition. When the evidence includes the person's own confession, Michigan's corpus delicti rule requires independent direct or circumstantial evidence of the specific injury and of some criminal agency as its source before the confession may be admitted; the rule is confined to confessions and does not cover admissions of individual facts.^[23] How that rule applies to statements like "I was driving" is covered in disputes over who was driving.

Common misunderstandings

• "If the car wasn't moving, it wasn't operating." Not under Wood and Lechleitner: operating can continue after a vehicle stops if it still poses a collision risk.^[3][4]
• "Sitting in a parked car is always safe" or "always OWI." Neither statement is supported. The answer depends on the facts and the Wood test.^[5]
• "Only cars and trucks count." An electric scooter on a highway was a vehicle in Lyon.^[22]
• "It must be on a public road." The place element is separate and broader than public roads; see where the law applies.^[24]