People v. Pomeroy
| Decision Date | 18 September 1984 |
| Docket Number | Docket Nos. 62831,18 and 19,62832,Nos. 5,6,s. 5 |
| Citation | 355 N.W.2d 98,419 Mich. 441 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Michael POMEROY, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jessie Ben FULCHER, Defendant-Appellant. Calendar419 Mich. 441, 355 N.W.2d 98 . Originally |
| Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Artis M. Noel, Pros. Atty., Mary C. Smith, Asst. Atty. Gen Henry L. Greenwood, Caro, for defendants-appellants.
Dept. of Atty. Gen., Lansing, for plaintiff-appellee.
ON REHEARING
The judgments of the Court of Appeals in these consolidated cases were affirmed by an equal division of this Court. People v. Pomeroy, 15 Mich. 328, 329 N.W.2d 697 (1982). The cases were submitted for rehearing, which we granted. 417 Mich. 1113.
These cases present the question whether an intoxicated person who is asleep in the driver's seat of a motionless vehicle is "operat[ing] a vehicle", within the meaning of M.C.L. Sec. 257.625b; M.S.A. 9.2325(2).
We hold that under any reasonable interpretation of the phrase "operate a vehicle", a person sleeping in a motionless car cannot be held to be presently operating a vehicle while sleeping.
In each case, the defendant was arrested while asleep in his stationary car. The evidence at Pomeroy's trial disclosed that two deputy sheriffs discovered him asleep and slumped over the steering wheel of a car. The car was legally parked in front of the Cornerstone Bar on Bay Street in Unionville. Pomeroy's head was resting against the horn, which was blowing. The car's standard transmission was in neutral and the motor and heater were on, but the lights were off.
One of the deputies attempted to awaken Pomeroy by tapping on the window. Unsuccessful, he opened the door, shut off the engine, and removed a beer can from between Pomeroy's legs. Pomeroy then woke up, pressed the clutch, and moved the gearshift down through the gears and back to neutral. He reached for the key to restart the motor, but the deputy prevented him from doing so.
The deputies testified that Pomeroy did not actually move the car. Pomeroy testified that he had been drinking that day at the Cornerstone Bar. When he started to fall asleep, the bartender told him he could not sleep in the bar. Pomeroy had then asked a friend for the keys to his car so he could "go to sleep". He had turned on the car's motor and heater because it was cold. He denied any intention to actually drive the car; the friend had said he would wake Pomeroy when he came out of the bar.
The trial judge instructed the jury that "a person operates a motor vehicle when he is in actual, physical control of a motor vehicle". The jury found Pomeroy guilty of driving while impaired in violation of the state law.
Both the circuit court and the Court of Appeals, 88 Mich.App. 311, 276 N.W.2d 904, affirmed.
A Vassar city police officer found Fulcher's car with the rear end in a ditch and the front end on the roadway. The car's automatic transmission was in "drive" and the engine was idling. Fulcher was slumped over the wheel, but his foot was off the accelerator. The police officer had to shake Fulcher several times and shout at him before Fulcher finally woke up. Tire tracks were furrowed in the ground, following the path of the car into the ditch.
Fulcher was tried without a jury. The trial judge who found him guilty of driving while impaired said in part:
The circuit court and Court of Appeals affirmed.
In both cases, criminal liability is predicated on operating a motor vehicle. Pomeroy was convicted under Sec. 625b, while Fulcher was convicted under Sec. 5.15b of the Uniform Traffic Code for municipalities, M.C.L. Sec. 257.951; M.S.A. Sec. 9.2651, the wording of which parallels Sec. 625b. Section 625b(1) then provided:
"A person shall not operate a vehicle upon a highway or any other place open to the general public, including an area designated for the parking of motor vehicles, within this state when, due to consumption of intoxicating liquor, or a controlled substance, or a combination thereof, the person has visibly impaired his ability to operate the vehicle".
The Legislature has defined an operator as one who is in "actual physical control" of a motor vehicle.
" 'Operator' means every person, other than a chauffeur, who is in actual physical control of a motor vehicle upon a highway." M.C.L. Sec. 257.36; M.S.A. Sec. 9.1836.
Here the car was motionless and the driver was asleep at the time of his arrest in each case. We do not read this statute as addressing this circumstance.
If the car had been in motion, the person in the driver's seat might have been found to be "operating" it even though he asserted that he was asleep. If the person in the driver's seat had been awake, he might have been found to have been in such physical control of the car as to support a conclusion that he was operating it even if the car was motionless.
A sleeping person is seldom operating anything. Certainly these sleeping persons were not operating their motionless cars at the time of their arrests.
In each case, the defendant was arrested while asleep at the wheel of a stationary car. The question before the trier of fact was whether the defendant was guilty of operating a vehicle while visibly impaired at the time of his arrest. At Pomeroy's trial, no evidence was offered that he had earlier driven while visibly impaired. At Fulcher's trial, there was circumstantial evidence that he had driven earlier while visibly impaired. While in another case such evidence might have been sufficient, the trial judge, sitting as trier of fact, expressly predicated his finding of guilt upon the circumstances obtaining at the time of Fulcher's arrest.
The evidence on the element of operating a vehicle was, accordingly, insufficient to sustain a conviction in each case. The convictions are reversed. Retrial is barred upon the principles stated in People v. Hampton, 407 Mich. 354, 285 N.W.2d 284 (1979), and Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Reversed.
The question presented in these cases, consolidated on appeal, 1 is whether an intoxicated person, sitting in the driver's seat of a stationary vehicle with the motor running, is driving while visibly impaired within the meaning of Sec. 625b of the Michigan Vehicle Code. 2 We hold that the prohibition of the statute extends to a visibly impaired driver who is "in actual physical control" 3 of a stationary vehicle.
In Pomeroy there was not sufficient evidence that the defendant was "in actual physical control of a vehicle". In Fulcher there was sufficient evidence.
In Pomeroy, two deputy sheriffs discovered James Michael Pomeroy asleep and slumped over the steering wheel of an automobile. The automobile was legally parked in front of the Cornerstone Bar on Bay Street in Unionville. Pomeroy's head was resting against the horn, which was blowing. The automobile's standard transmission was in neutral and the motor and heater were on, but the lights were off. One of the deputies testified that he attempted to awaken Pomeroy by tapping on the window. Unsuccessful, he opened the door, shut off the engine, and removed a beer can from between Pomeroy's legs. Pomeroy then woke up, depressed the clutch pedal, and moved the gearshift down through the gears and back to neutral. He reached for the key to restart the motor, but the deputy prevented him from so doing. The deputies also testified that Pomeroy did not actually move the automobile.
Pomeroy testified that he had been drinking at the Cornerstone Bar. When he started to fall asleep, the bartender told him he could not sleep in the bar. Pomeroy had then asked a friend for the keys to his automobile so that he could "go to sleep"; the friend had said he would wake Pomeroy when he came out of the bar. Pomeroy said that he turned on the motor and heater because it was cold. He denied that he had started the automobile with the purpose of actually driving it.
At the close of the evidence, the trial judge instructed the jury that it could convict Pomeroy of violating Sec. 625b of the Michigan Vehicle Code if it found that "his ability to operate a motor vehicle was visibly impaired due to consumption of intoxicating liquor" and that while impaired he had operated a motor vehicle. The judge further instructed that the people might prove the element of operation by showing that Pomeroy had been in "actual physical control of the motor vehicle". The jury returned a verdict of guilty. Pomeroy was fined $100 and placed on one year's probation. Both the circuit court and the Court of Appeals affirmed.
In Fulcher, a Vassar city police officer found Jessie Ben Fulcher's automobile with the rear end in a ditch and the front end on the roadway. The vehicle's automatic transmission was in "drive" and the engine was idling....
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