OWI - "Operating" Vehicle
Flashlight, Photographing Not a Search
Binoculars Usually Not a Search
Thermal Imaging of Home Is a Search
There were no court decisions of particular interest to law enforcement this past month so we will review some areas of law detailed in the Indiana Prosecuting Attorneys Handbook pp. 1-40 to 1-42 and 2-25 to 2-31.
First, in OWI cases, what is sufficient evidence that a defendant “operated” a vehicle. Generally, there are four factors that can be used to determine whether a person operated or was in actual physical control of a vehicle: (1) whether the person in the vehicle was asleep or awake; (2) whether or not the motor was running; (3) the location of the vehicle and how it got there; and (4) the intent of the person behind the wheel.
In the following situations, the court of appeals stated that the facts presented did not establish that the defendant operated the vehicle. Where the vehicle was parked in a tavern parking lot, with engine and heater running and lights on, the transmission in park, and the defendant found asleep on the driver’s side. Merely showing that the defendant started the engine will not sustain a conviction. There must be some additional evidence that the defendant operated the vehicle.
In another situation, evidence of operation was not sufficient where the defendant was found in the vehicle asleep in a reclining position on the front seat, the vehicle was parked in a city parking lot adjacent to a tavern with its lights on and engine running and the defendant admitted he had been drinking in the tavern and fell asleep waiting for the vehicle to warm up.
It was also insufficient where the defendant was found asleep sitting in the driver’s seat of a car with the engine running, the lights on, and the transmission in park. The car was sitting in an apartment parking lot.
The following are examples of sufficient evidence of “operating.” The fact that a vehicle is “in gear” is definitely a factor to consider. Evidence that the defendant, the sole occupant of the car, was found asleep in the driver’s seat, the vehicle was stopped partially on the roadway, the engine was running, and the transmission was in gear. The car was not moving because it had come to rest against a rock in an adjacent yard.
Evidence was sufficient that a driver who was behind the steering wheel of a car stuck in a snowbank with the headlights on and engine running was operating the car even though the car could not move at all.
Evidence was sufficient where an officer found the defendant asleep behind the steering wheel of a car stopped in the lane of traffic on a county road with the engine running. In another case, the Court stated that the defendant had operated the vehicle where he was found pinned behind the steering wheel of a crashed vehicle.
Finally, evidence was sufficient even though the car’s lights were off and the engine was not running when an officer arrived at the scene of an accident. The defendant was found passed out behind the steering wheel of the car which had rear ended a parked vehicle. These facts supported the inference that the defendant had recently “operated” the car.
