PEOPLE OF MI V WAYNE EDWIN DONALDSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 6, 2005
Plaintiff-Appellant,
v
No. 255721
Wayne Circuit Court
LC No. 04-002883-01
WAYNE EDWIN DONALDSON,
Defendant-Appellee.
Before: Smolenski, P.J., and Schuette and Borrello, JJ.
PER CURIAM.
Plaintiff appeals as of right from a circuit court order granting defendant’s motion to
quash. We reverse and remand for reinstatement of the charge. This appeal is being decided
without oral argument pursuant to MCR 7.214(E).
I. FACTS
Defendant was charged with operating a motor vehicle under the influence of intoxicating
liquor, third offense (OUIL third). MCL 257.625(1), (9)(c). The evidence produced at the
preliminary examination showed that after consuming a large amount of alcohol, defendant left
home in his car. Realizing that he had had too much to drink, defendant pulled into the parking
lot of a school, where he passed out before he could turn off the engine. Shortly after midnight
on January 1, 2004 while on patrol, a police officer saw defendant’s car in the parking lot of a
school. The car was sitting “sideways across several parking spots.” The key was in the
ignition, the engine was running with the gearshift in park, and the lights were on. Upon
investigation, the officer found defendant asleep behind the wheel. The officer rapped on the
window approximately three times, but got no response. He opened the door and touched
defendant’s shoulder to rouse him. Defendant was then arrested after failing field sobriety tests.
The magistrate rejected defendant’s argument that he was not operating a motor vehicle
when the police arrived, and bound him over for trial. The circuit court agreed with defendant,
ruling that, pursuant to People v Wood, 450 Mich 399; 538 NW2d 351 (1995), and People v
Burton, 252 Mich App 130; 651 NW2d 143 (2002), defendant was not operating his vehicle.
II. STANDARD OF REVIEW
We review the circuit court’s analysis of the bindover process de novo. We must
determine if the magistrate committed an abuse of discretion in finding probable cause to believe
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that the defendant committed the offenses charged. We decide whether the evidence presented
to the magistrate was sufficient to establish, as a matter of law, that the offenses charged
probably were committed by the defendant. There must be evidence of each element of the
crime charged or evidence from which the elements can be inferred, although the evidence need
not establish guilt beyond a reasonable doubt. People v McBride, 204 Mich App 678, 681; 516
NW2d 148 (1994).
III. ANALYSIS
In Wood, supra, the defendant was found unconscious slumped over the wheel of his van,
which was at the drive-through window of a restaurant. The engine was running and the
gearshift was in drive, but the defendant’s foot was on the brake. Wood, supra at 402. The
Court held that “[o]nce 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.” Id. at 404-405. The
Court concluded that because the defendant had driven the van and only his foot on the brake
prevented it from moving, it still posed a risk of collision and thus he was operating the vehicle.
Id. at 405.
In Burton, supra, the defendant drove his truck across a parking lot. He was found asleep
behind the wheel of his truck, which was still in the parking lot. The engine was running and the
gearshift was either in park or neutral. Burton, supra at 132, 142. The defendant was charged
with and convicted of attempted OUIL third on the theory that he planned to drive away from the
parking lot but was prevented from doing so by police intervention. Id. at 141. This Court ruled
in part that the evidence was insufficient to prove that the defendant “was intending to ‘operate’
his truck” because it was not in motion, it was parked, and it was not “in a position posing a
significant risk of causing a collision,” given that the transmission was not in gear. Id. at 143145.
In People v Solmonson, 261 Mich App 657; 683 NW2d 761 (2004), the defendant was
found unconscious behind the wheel of his car, which was on the side of the road. The engine
was off but the key was in the ignition, and the engine was still warm. The defendant admitted
that he had been driving. Id. at 660. The defendant, citing Wood, supra, and Burton, supra,
argued that he was not “operating” his car. The Solmonson Court disagreed, ruling as follows:
Defendant's reliance on Wood and Burton is misplaced. In Wood our
Supreme Court limited People v Pomeroy (On Rehearing), 419 Mich 441, 444;
355 NW2d 98 (1984), which held, "a person sleeping in a motionless car cannot
be held to be presently operating a vehicle while sleeping." In Burton the
prosecutor charged that defendant was attempting to drive while intoxicated at the
time the police found him unconscious in his lawfully parked vehicle with its
engine running. This Court held that the prosecution failed to prove its theory
that the unconscious defendant specifically intended to operate the vehicle while
intoxicated at some point in the future but the police intervened before he could
do so. Burton, supra at 143-144. But here, the prosecutor did not claim that the
evidence established defendant was operating the vehicle at the point the police
found him unconscious or that the police found defendant attempting to operate a
vehicle while intoxicated. Here, the prosecutor argued that the evidence at trial
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presented a compelling circumstantial case that defendant had driven while
intoxicated to the location where the police found him. [Id. at 662.]
In this case, as in Solmonson, supra, the prosecutor’s theory was not that defendant was
operating his vehicle while intoxicated when the police officer came upon him in the parking lot,
but rather that defendant was operating his vehicle while intoxicated when he drove from his
house to the parking lot. The evidence adduced at the preliminary examination was sufficient to
create probable cause to believe that defendant had driven his car to the parking lot and that he
was under the influence of intoxicating liquor at the time. The circuit court erred in granting
defendant’s motion to quash.
Reversed and remanded for reinstatement of the charge. Jurisdiction is not retained.
/s/ Michael R. Smolenski
/s/ Bill Schuette
/s/ Stephen L. Borrello
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