Operating for purposes of Operating While Intoxicated OWI is loosely defined.

A common misconception in Operating While Intoxicated cases is that the driver of the vehicle must have been driving to be guilty of the offense. A knowledgeable Michigan drunk driving attorney knows that the term operating is much more broadly defined under Michigan law.



A recent story in the news will likely test the definition of “operating” as defined by Michigan courts. A Detroit man was arraigned Monday on drunken driving charges after Fraser police found him sleeping in his car last Saturday night. The car was running, in gear, in traffic, and the sleeping man’s foot was on the brake.


John Henderson, 33, was charged with his second offense OWI. Reportedly, he also is charges with Resisting and Obstructing the Police because he was not cooperative when he was being arrested. Fraser police reported that they had to knock on the windows of the car to wake Garfield.


Police also reported that a bag of marijuana was found in the center console; however, Mr. Garfield was a medical marijuana patient under the MMMA and was in possession of a medical marijuana card. His breath alcohol content was listed as .23% although it is unclear how this could be accurate considering police reported that Garfield would not cooperate with breath testing and had to be taken to the hospital for a blood test. Blood test results take months to be returned from the overburdened Michigan State Police crime lab.


The Michigan drunk driving attorney for Mr. Garfield may direct the trial court to the case of People v Pomeroy (On Rehearing), 419 Mich 441, 355 NW2d 98 (1984). In that case, the Michigan Supreme Court held that a person asleep behind the wheel of a motionless car was not “operating” the vehicle. However, the court stated that if the car had been in motion, the person in the driver’s seat might be found to be “operating” it even though he asserted that he was asleep, and, if the person in the driver’s seat had been awake, he might be found to have been in such physical control of the car that he was “operating” it even if the car was not moving.


The scope of ruling in Pomeroy relative to the definition of “operating” was later expanded by the Michigan Supreme Court in People v Wood, 450 Mich 399, 538 NW2d 351 (1995). In Wood, the police found the defendant unconscious behind the wheel of his vehicle at a fast food drive-through window. The difference between Pomeroy and Wood is that the car in the Wood case was running, the transmission was in drive, and the defendant’s foot was resting on the brake pedal. The Michigan Supreme Court concluded that the driver was “operating” the motor vehicle.


If you are charged with any of the following offenses, please call LEWIS & DICKSTEIN, P.L.L.C. at (248) 263-6800 for a free consultation with one of our Michigan drunk driving attorneys:


Operating with Any Amount of Schedule 1 or 2 Controlled Substance



Operating Under the Influence of Alcohol

Operating While Intoxicated by Alcohol


Operating While Under Influence of Drugs

OWI Causing Serious Injury

OWI Causing Death

OWI with Minor Child

OWI First Offense – Misdemeanor – Max 93 days

OWI Second Offense – Misdemeanor – Max 1 year

OWI Third Offense – Felony – Max 5 years in Prison


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Operating While Intoxicated Defense Attorney

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