PEOPLE
v.
SMITH
Docket No. 91636.
Michigan Court of Appeals.
Decided December 8, 1987.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief, Appellate Division, and Graham K. Crabtree, Assistant Prosecuting Attorney, for plaintiff.
Kenneth S. Knoppow, for defendant.
Before: GRIBBS, P.J., and D.E. HOLBROOK, JR., and W. MOORE, JR.,[*] JJ.
D.E. HOLBROOK, JR., J.
Following a jury trial in district court, defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUIL), MCL 257.625(1); MSA 9.2325(1). Defendant appealed to the circuit court, which reversed his conviction. The people now appeal by leave granted.
At approximately 7:30 P.M. on April 1, 1984, a Michigan State Police trooper observed defendant's car parked on the shoulder of northbound I-75 in Madison Heights approximately 1/4 mile away from the next exit. Defendant was found unconscious, slumped over behind the wheel. The car was in park but the engine was running. When the officer opened the car door he smelled a strong odor of liquor. The officer shook defendant for approximately two minutes before defendant awakened. Defendant's eyes were bloodshot and watery, his speech was slurred and he appeared dazed. Defendant was unable to walk on his own, say the alphabet or count backwards. Breathalyzer tests subsequently administered to defendant at *769 9:04 and 9:22 P.M. indicated that defendant had a blood-alcohol content of 0.25 percent.
At the close of the prosecutor's case, defendant made a motion for directed verdict which was denied. On appeal to the circuit court defendant argued that under People v Pomeroy (On Rehearing), 419 Mich. 441; 355 NW2d 98 (1984), there was insufficient evidence presented that he was operating the vehicle at the time of his arrest. The circuit court agreed and reversed defendant's conviction, concluding that there was insufficient proof that defendant operated the vehicle in an intoxicated condition. On appeal the prosecutor claims that the circuit court's decision was erroneous. We agree.
In People v Schinella, 160 Mich. App. 213; 407 NW2d 621 (1987), a panel of this Court confronted a similar factual situation. In Schinella the defendant's vehicle was found off the road, straddling a ditch. Defendant was behind the wheel, awake but glassy-eyed. While the engine was not running, there were indications at the scene that defendant had attempted to dislodge his vehicle just moments before. There was a strong smell of alcohol on defendant's breath. While defendant was able to recite the alphabet and count backwards, he failed two physical dexterity tests.
With respect to the application of Pomeroy, the panel stated:
The holding of People v Pomeroy, supra, is narrow: where there is no evidence of prior impaired driving, a defendant arrested while asleep at the wheel of a stationary car cannot be found guilty of driving while impaired (or by extension, OUIL) because he is not presently "operating" the vehicle at the time of his arrest. See 419 Mich. 447. Stated otherwise, to sustain an OUIL conviction, there must be direct or circumstantial evidence *770 that a person arrested while asleep at the wheel was operating a vehicle while under the influence of intoxicants at some time prior to his arrest.
In the instant case, as the circuit court found, defendant clearly was not "operating" his vehicle at the time of his arrest. Thus, the question to be decided is whether there was sufficient direct or circumstantial evidence that defendant had operated his vehicle while under the influence at some point before he was arrested. [Schinella, supra, 216. Emphasis in original.]
When a challenge is made to the sufficiency of the evidence, the reviewing court must examine the evidence presented by the prosecution and determine whether a rational trier of fact could find that the essential elements of the offense were proven beyond a reasonable doubt. People v Hampton, 407 Mich. 354, 368; 285 NW2d 284 (1979), reh den 407 Mich. 1164 (1980), cert den 449 U.S. 885 (1980).
Here there was sufficient circumstantial evidence to sustain defendant's conviction. Defendant was parked on the shoulder of I-75. There was a 45-degree embankment next to the shoulder of the road. The nearest exit was one-quarter mile away. Defendant was alone and seated on the driver's side of the car. Unlike the facts involving defendant Fulcher in Pomeroy, there were no bottles or cans found in the car that would support the theory that defendant became drunk while parked. Unlike Fulcher, where the defendant was parked in front of a bar, it was unlikely in the instant case that defendant could have gotten to the shoulder of I-75 unless he had driven while intoxicated. Hence there was evidence from which a rational trier of fact could find that defendant had operated a vehicle under the influence of intoxicating liquor just prior to his arrest.
*771 Reversed and remanded for reinstatement of conviction.
NOTES
[*] Recorder's Court judge, sitting on the Court of Appeals by assignment.