Can I be charged with OWI even if I wasn't driving? 6 Answers as of February 16, 2015

I was involved in a single car accident on the highway in slippery conditions. My girlfriend was driving. She told the police I was driving because she had a suspended license and 2 prior DUI convictions within 7 years. I was too intoxicated to drive anyways and sleeping when the accident actually occured. I kept my mouth shut and refused all of the officers questions and PBT on scene. Officer lied in the written police report and stated I told him I was driving, but in another part of the report remarked that I refused to answer the question I was driving. He also made several factual errors such as dates of birth and misspelling of names. I was in the drivers seat when he arrived on scene because I was trying to start the vehicle to move it from the middle of the highway, but it wouldn't turn on. Can I get the charges dropped based on this alone? Or will I have to show them pictures of her injuries that could have only occurred from the driver seat (seat belt burns on left neck) and chat logs also proving she was driving? Would any charges be filed against my girlfriend after dismissal or acquittal?

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Cornish, Crowley, Rockafellow, & Sartz, PLLC
Cornish, Crowley, Rockafellow, & Sartz, PLLC | Jacob Peter Sartz IV
If you need specific legal advice for your particular circumstances, I encourage you to privately consult with a lawyer. If you are charged with an offense and cannot afford to pay for your own defense, the court may appoint you an attorney payable at the public’s expense. You have a right to counsel. Anyone charged, of course, is presumed innocent. The prosecutor would need to prove the elements of the offense beyond a reasonable doubt if the matter proceeded to trial. Simply because a person is charged does not mean that ultimately, they will be convicted. One element of the charge, Operating While Intoxicated, is proving who was operating the vehicle at the time. MCL257.625 (1) states? "A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person is operating while intoxicated." Proving who operated the vehicle is a key element to these types of charges. Prosecutors may pursue charges against allegedly intoxicated or impaired people they find slumped over and asleep on the driver's side of a vehicle if they believe they have enough circumstantial evidence that they could introduce to a jury or jury to show that the alleged defendant was operating a vehicle; and if they have enough other evidence to meet their burden of proof on other elements as well. Key issues include whether the vehicle was running, where the vehicle was located, whether the vehicle was in gear, other witness accounts of either the driver or the vehicle that evening, testimony of officers who investigated the matter, and/or other factors. An accused defendant, of course, may call their own witnesses to contest these allegations at a trial. Obviously, the alleged driver of the vehicle that evening, especially a sober driver, could be a great, exculpatory witness for the defense. A person charged with a criminal offense has a right to call witnesses on their own behalf. Ultimately, a jury or judge decides whether a witness is credible. If a jury or judge determines that the alleged witness claiming to be the driver is not credible, the alleged defendant may be convicted anyway, even though they had a witness who claimed to be the driver or operator. Credibility hinges on a litany of potential factors, including whether the witness's version was believable, whether the witness had motivations to lie or distort their version, inconsistencies with their version, their body language and actions while being questioned on the stand, and other factors. Credibility is a huge issue. The prosecutor cannot usually get a conviction without credible witness testimony. A successful defense against charges often hinges on the credibility of the defendant's witnesses, including the alleged defendant if they testify. The prosecutor, once they investigate the case more thoroughly and if they are presented with potentially exculpatory evidence, may elect to drop the case after charges have been filed. However, they are often reluctant to do so. Ultimately, these types of questions and potential defenses to these types of charges will hinge on credible witness testimony in front of a judge or jury at trial. Ultimately, though, owners and operators should keep anyone drunk or intoxicated away from their vehicles once they finish operating their vehicle. As noted in MCL 257.625 (2): The owner of a vehicle or a person in charge or in control of a vehicle shall not authorize or knowingly permit the vehicle to be operated upon highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of motor vehicles, within this state by a person if any of the following apply:(a) The person is under the influence of alcoholic liquor, a controlled substance, other intoxicating substance, or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance.(b) The person has an alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine or, beginning October 1, 2018, the person has an alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.(c) The person's ability to operate the motor vehicle is visibly impaired due to the consumption of alcoholic liquor, a controlled substance, or other intoxicating substance, or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance. Obviously, the prosecutor would need prove the “authorize or knowingly permit" portion of this charge against the owner/person in charge of the vehicle; however, that again would be a question of fact that may not be resolved until a trial. It is a heck of a risk for sober operators and something people may not be aware of.
Answer Applies to: Michigan
Replied: 2/16/2015
Michael Breczinski
Michael Breczinski | Michael Breczinski
If they think that you were driving then they can charge you. She could be charged with a false police report if they figure out that she lied.
Answer Applies to: Michigan
Replied: 12/22/2014
Austin Legal Services, PLC
Austin Legal Services, PLC | Jared Austin
Anyone can be charged. Having your guilt proven beyond a reasonable doubt and being convicted is another matter entirely. This is very serious. You need to have an experienced DUI attorney representing you.
Answer Applies to: Michigan
Replied: 12/16/2014
Law Offices of Ezra N. Goldman
Law Offices of Ezra N. Goldman | Ezra Goldman
If you are in the drivers seat, they can charge you with drunk driving. If the car was inoperable, that may be a defense. None of this will make it go away automatically everything you have said here will take a LOT of lawyering.
Answer Applies to: Michigan
Replied: 12/15/2014
Elhart & Horvath, P.C.
Elhart & Horvath, P.C. | Mattias Johnson
You raise several issues in your question, and many of them cannot be answered with any certainty, and as such I will preface this with the notion that it would be in your best interest to speak with an experienced criminal defense attorney in your area on this topic. The first thing to note is that if you were in the drivers seat with the keys in the ignition, even just trying to move the car, you can receive an OWI. This is the reason that even if you are in your driveway having a drink in your vehicle you have to make sure that the keys are not in the ignition. The factual errors seem to be minimal in the police report, but these are points that your attorney would likely bring up with the prosecutor to weaken his case against you. The evidence of your injury may help in defending your case, but similar injuries could also happen to a person in the back seat, or could be from something else entirely. The last note is that if your charges are dropped that would not necessarily mean that charges wouldn't be brought against your girlfriend. You could also both be found guilty of conspiracy or a similar crime for misleading the police. Long story short, you have yourself if a delicate position here and I would highly recommend the assistance of an experienced defense attorney.
Answer Applies to: Michigan
Replied: 12/15/2014
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    You need an attorney now. There are lots of issues and potential exposures for both of you, and you are conflicted so you each need a separate attorney.
    Answer Applies to: Michigan
    Replied: 12/15/2014
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