*Citations were included in original document and formatting has changed.
MEMORANDUM
TO:
FROM: Hypatia Swanson
DATE: 10 April 2020
RE: Matt Mayer does not satisfy all three elements in the Michigan OWI statute, a case is unlikely to be brought against him.
QUESTIONS PRESENTED
I. Under Michigan law, a person is in operation of a motor vehicle when said person uses a motor vehicle as a motor vehicle and has put the vehicle in motion, or in a position posing a significant risk of causing a collision. Mayer was sleeping in the front seat of the vehicle with it running, but in park, would Mayer’s actions fall under the definition of operation?
II. Michigan law prohibits someone from operating a vehicle on a highway or other place open to the public or generally accessible to motor vehicles. Mayer was parked on the two-track located in the East Border of the property. Would this constitute as an area that is generally accessible?
BRIEF ANSWERS
I. No, Mayer would not be found to have been operating the vehicle. For an individual to be in operation of a vehicle they must be using the motor vehicle as a motor vehicle and have put the vehicle in motion, or in a position posing a significant risk of causing a collision. Mayer did not move the vehicle out of park when he turned the vehicle on, therefore he did not put the vehicle in motion or in a position posing a significant risk of causing a collision. Mayer could not reasonably be found to have been operating the vehicle.
II. No, Mayer would not be found to have been in a place that is generally accessible. An area is generally accessible when it is “usually capable of being reached.” Michigan law also prohibits someone from operating a vehicle on a highway or other place open to the public or generally accessible to motor vehicles. Mayer was not located on a highway and was not in an area that is usually capable of being reached by a motor vehicle. Mayer could not reasonably be found to have been in an area that is generally accessible.
FACTS
On November 18, 2018 Matt Mayer was invited by his Joel Frueh to go mud bogging in a field owned by Mr. Frueh’s parents. The field is a 10-acre parcel that is flanked on the South by Basinger Road. The field is accessible from Basinger Road by a two track on the Southeast corner of the property that runs along the East boarder of the field.
The two friends met around 21:00, they started drinking some beer and messing around in the muddy field. Around 22:00 more friends joined them, they all continued to drink and drive around in the field. Around midnight Mr. Frueh and the two other friends that joined them decided that they wanted to grab some food. Mr. Frueh drove his jeep and parked on the two- track on the East boarder of the property, 50 yards from Bassinger Road. Mayer decided he should stay in the Jeep to sober up. The other friends left and walked to get some food.
The temperature was chilly that night, so Mayer decided to use the Jeep’s heater. He climbed to the front seat put on the seatbelt before he started the Jeep and closed his eyes to rest. Around 2:00 am an officer that was on patrol in the area was driving down Basinger Road when he noticed the running lights of a vehicle on the two-track. The Jeeps lights were pointing toward Basinger Road and the officer found the two-track access point on the Southeast corner of the field. The officer decided that he might get stuck in the mud if he were to drive down the road more than 10 yards in his car, so he parked his car at the entrance of the two-track and walked over to where the Jeep was parked.
Mayer was found by the officer in the front seat sleeping with his hands on the wheel and the vehicle running but in park. The officer also noticed that there were empty beer cans in the cab of the Jeep. He woke Mayer up and had him perform some field sobriety tests. Mayer was then arrested for an OWI, a later blood test showed that Mayer’s blood alcohol level was .16 percent at the time of the arrest.
DISCUSSION
Mayer will be able to prove that he was not operating the vehicle or in an area that is generally accessible. Michigan’s OWI statute contains three elements necessary to establish operating while intoxicated: “(1) the defendant was operating a motor vehicle; (2) on a highway or other place open to the public or generally accessible to motor vehicles, and (3) the defendant had a blood- alcohol content of 0.08 grams or more .” In the present case, the third element has already been proven, Mayer was intoxicated beyond a reasonable doubt. However, it will be hard to prove that Mayer was operating the vehicle and that he was in an area generally accessible to motor vehicles.
I. Mayer was not operating under Michigan Law.
Mayer was not operating the vehicle, in this case Mayor fell asleep behind the wheel but the vehicle was never put into motion. A person is in operation of a motor vehicle if they have put the vehicle in motion, or in a position posing a significant risk of causing a collision, a person continues to operate it until the vehicle is returned to a position posing no such risk. In People v. Wood, the defendant was found unconscious in his van, slumped forward with his hand resting on the steering wheel and the vehicle’s engine was running and the automatic transmission was in drive . Wood’s foot was resting on the brake pedal and that was the only thing that kept the vehicle from moving. (Id.) After noting that operating is when a motor vehicle has been put in motion or a position posing a significant risk of causing a collision, and a person continues to operate it until the vehicle has been returned to a position posing no such risk, the court held that the defendant reasonable operated a vehicle. (Id.) In City of Plymouth v. Longeway, the defendant’s foot on the brake pedal was the only thing keeping the vehicle from moving when she moved the transmission into reverse before putting it back into park, a court is likely to distinguish Mayer’s case from the Longeway case. In Longeway, the court stated that a person clearly has physical control of a vehicle when starting the engine, applying the brakes, shifting the vehicle from park to reverse and then shifting back to park . By contrast, Mr. Mayer was asleep behind the wheel with the engine on, but the transmission never moved from park. This suggests that Mayer was not in actual physical control of the vehicle. Because the vehicle was never put into motion, a court is less likely to conclude that Mayer was not operating the vehicle.
Even though Wood had the vehicle in park and his foot on the gas pedal, a court will likely distinguish Mr. Mayer’s case from the Wood or Longeway case. In Wood the court noted that the defendant’s foot resting on the brake pedal was the only thing that kept the vehicle from moving forward. By contrast, Mr. Mayer was asleep behind the wheel with the vehicle turned on but only in park. Mayer never moved the gear shift, suggesting that the vehicle never was or was going to be put into motion. Because the vehicle was never in motion, a court is less likely to conclude that Mr. Mayer was operating the vehicle.
A strong case can be made for Mayer. As stated before, just like in the case of Longeway our defendant was found with his foot on the brake pedal with the engine running. However, our defendant had not shifted the transmission from park to reverse which is what the defendant in Longeway did and why they were found to be operating the vehicle. Similarly, in Wood the defendant was found asleep with his foot on the gas pedal with the transmission in drive. Mayer had never moved the transmission from park, so his foot on the gas pedal was not the only thing preventing the vehicle from moving unlike in Wood. Here sufficient evidence exists for a court to conclude that Mayer was not in operation of the Jeep.
II. Mayer was not in an area that is generally accessible to motor vehicles.
Mayer was not in an area that was generally accessible to motor vehicles. A person is in an area that is generally accessible when the area is usually capable of being reached by motor vehicles . In People v. Rea, the defendant was found by police officers to be operating his vehicle while intoxicated in his driveway. The defendant’s driveway is an area designed for vehicular travel and areas designed for vehicular travel, are by nature areas a vehicle is usually capable of accessing. (Id.) After noting that an area is generally accessible when the area is usually capable of being reached, the court held that the defendant’s conduct was in an area that was generally accessible. (Id.) People v. Nickerson, was a case where the defendant was intoxicated and was in an accident that occurred in the pit area of a Speedway gas station . The court used a Michigan statute to reach their decision. The statute states that a person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designed for the parking of vehicles, within the state if the person is operating while intoxicated . From this, the court held that the area where the accident occurred was generally accessible to motor vehicles and the public. (Id.)
Even though Rea and Nickerson were operating their vehicles while intoxicated in an area that is generally accessible, a court is likely to distinguish Mr. Mayer’s case from the Rea and Nickerson case. In People v. Rea the defendant backed out of his driveway and then put the vehicle in drive and pulled forward into his garage and the police were easily able to access Rea. In Nickerson the defendant was intoxicated and got into an accident in a Speedway gas station. By contrast, the area that Mayer was found in is a privately-owned property that the police officer had to get out of his car and physically walk 50 yards in order to access, suggesting that the area was not capable of being reached by a motor vehicle. Because the area was not capable of being reached, a court is less likely to conclude that the area that Mr. Mayer was found in is generally accessible.
In the present case, Mayer can establish that he was not in an area that is generally accessible to motor vehicles. In Rea the defendant had been operating his motor vehicle in his driveway which is an area that is designed for vehicular travel. Mr. Mayer was found on a two track that required the police officer to get out of his car and walk 50 yards to in order to access. In Nickerson the area in which the defendant was operating his vehicle was the parking lot of a Speedway gas station. This is also an area that is designed for vehicular travel. Mayer was on private property that was not designed for vehicular travel. In People v. Nowack, which was a case where the defendant Nowack was found to be operating while intoxicated, the court ruled that in order for a conviction to be made, all the elements of an offense may be proved beyond a reasonable doubt by circumstantial evidence and reasonable inferences therefrom . With the evidence above a court will likely find that Mayer was not in an area that is generally accessible to motor vehicles and will not be able to prove all the elements of the Michigan OWI statute.
CONCLUSION
Michigan’s statute prohibiting operating while intoxicated only applies when a defendant is “operating” in a generally accessible area . Matt Mayer does not meet either of these two elements. When Mayer turned on the vehicle the gear shift never moved from being in park, therefore the operating element cannot be proven. The location that Mayer was found was not one that was generally accessible to motor vehicles so the element of generally accessible cannot be proven either. Therefore, there cannot be a successful claim brought against Mayer.
2020
