On October 8, 2013, Attorney Michael Kelly, of Kelly & Kelly, P.C., successfully convinced a jury in the 18th District Court for the County of Wayne, in Westland, Michigan, that our client was innocent. The case involved a young man who was intoxicated while riding as a passenger in his own vehicle, which was then in an accident. The driver of the vehicle had fled the scene immediately after the accident. The only person identified at the scene by witnesses was our client. The police did not search for the other occupant. Attorney Michael Kelly prevented the government from turning a “drunk man” into a “drunk driver!”
To convict a person of “Operating While Intoxicated” (MCL 257.625), the government must prove each of the following elements beyond a reasonable doubt:
(1) First, that the accused was operating a motor vehicle on the date of the arrest. Operating means driving or having actual physical control of the vehicle.
a. In this case, the government’s evidence could not prove beyond a reasonable doubt that our client was “operating” the car due to the following:
i. No one actually saw our client driving—the only saw him after the accident; and
ii. When the witnesses did see our client in the driver’s seat, the car was inoperable (he did not have actual physical control of the car—it couldn’t be driven or moved to pose a significant risk of further damage or injury to the public).
(2) Second, that the accused was operating a vehicle on a highway or other place open to the public or generally accessible to motor vehicles.
a. In this case, because the element of “operating” could not be proven beyond a reasonable doubt, it did not matter if the car at some point in time was on a public roadway.
(3) Third, that the accused was operating the vehicle within the geographic jurisdiction of the court.
a. In this case, without sufficient proof of “operating,” it did not matter that the car was in the City of Westland.
(4) Fourth, that the accused was under the influence of alcohol while operating the vehicle or that the accused operated the vehicle with a bodily alcohol content (B.A.C.) level of 0.08 grams or more per milliliters of blood / 210 liters of breath / 67 milliliters of urine.
a. In this case, it was undisputed that our client was intoxicated. However, a person over the age of 21 can be drunk in a car, so long as they are not the one driving. Our client was a “drunk passenger,” not a “drunk driver.” Because the government could not prove beyond a reasonable doubt the element of “operating,” it did not matter that our client was drunk.
A person charged and convicted of Operating While Intoxicated (first offense) faces the following penalties:
§ A Misdemeanor conviction will be entered (which will show up in a criminal background check, and could potentially preclude a person from receiving a job offer, housing, student loans, admission to college or graduate school, the right to own a firearm, driving privileges, a professional license, and even the legal resident status of immigrants).
§ A permanent record for drunk driving that cannot be expunged. It will follow you for the rest of your life.
§ Maximum 93 days in County Jail or up to 24 months of probation.
§ Maximum of $500.00 in base court fines.
§ Six (6) points on driver’s license.
§ Mandatory 30-day license suspension, followed by a 150-day restriction (driving privilege limited to work/school/medical or substance abuse treatment/court appearances/etc.)
§ $1,000 per year in Driver’s Responsibility Fees (total of $2,000).
If you’ve been arrested for drunk driving, don’t rely on “promises” from cops, “deals” from prosecutors, or “understanding” from the judge. Get yourself an attorney that fights for you, call Kelly & Kelly, P.C. (248) 348-0496.