Attorneys

Possibly yes. There are really two separate questions here; were you operating, and was the arrest valid (lawful)? To "operate" a motor vehicle, a person must be in "actual physical control" over the vehicle. This means that if you are behind the wheel and the car is running, you are probably operating the vehicle. However, this determination will depend on the specific facts of your case because the Michigan Courts have indicated that "once a person using a motor vehicle has put the vehicle in motion, or in a position posing a significant risk of harm, this person continues operating the vehicle until it is returned to a position posing no such risk". Consequently, if your car is running, but does not pose a risk, then your attorney might be able to argue that you were not "operating". Keep in mind though that the facts of your case must be carefully scrutinized by your attorney because circumstantial evidence can also be used to prove this element of the crime. What this means is that if the police find you in a motionless car, but there is sufficient circumstantial evidence to show that the car must have been driven by you to that location at some point earlier in time (such as the mere location of the car, tire tracks, warm hood, etc.), then the charge can sometimes be sustained using this evidence of prior operation. Cases like this must also be scrutinized by your attorney to determine the legality of the arrest. This is because the offense (if a misdemeanor) was committed outside the police officer's presence, and this sometimes makes a warrantless arrest illegal. But, it's not really that simple. This is because on the one hand there is a statute that indicates that a warrantless arrest is valid if the police officer has "reasonable cause" to believe that a driver was operating while impaired or intoxicated and was involved in an accident or where any part of a parked vehicle intrudes into a roadway. On the other hand there is a more general statute that says that a police officer may make a warrantless arrest if he/she has "reasonable cause" to believe that a misdemeanor punishable by imprisonment for more than 92 days or a felony has been committed (all drunk driving cases qualify) and reasonable cause to believe that the person committed it. Either way, the facts must be scrutinized to determine if the officer had such "reasonable cause" to make the arrest. Sometimes a case with an issue of "operation" must be taken to trial so that the jury can make the final determination of these fact questions. The jury might not want to convict where the driver did the "right thing" and tried to sleep it off.