(dissenting in part, concurring in part). I respectfully dissent.
The issue presented in the Pomeroy case arose from the lower court’s jury instruction. After the close of proofs, the court instructed that "a person operates a motor vehicle when he is in actual physical control of a motor vehicle”. The jury, after deliberation, returned a verdict of guilty as to Count I, a charge of operating a motor vehicle at a time while visibly impaired due to the consumption of intoxicating liquor, and guilty as to Count II, possessing alcoholic liquor in an open container in the passenger compartment of a motor vehicle. I would affirm defendant Pomeroy’s conviction on Count II, for there was uncontroverted testimony that two open cans of beer were seized from the car. I write to express my disagreement with the majority’s definition of the statutory term "operate”, as that term is used in MCL 257.625b; MSA 9.2325(2) and in § 5.15b of the UTC for municipalities. The majority defines "operate” as being "actual physical control” of a motor vehicle. I disagree because the breadth of this definition serves to extend MCL 257.625b; MSA 9.2325(2) to conduct which is outside the scope and purpose of the statute.
The general purpose of driving under the influence statutes, such as the one before us, is to protect the general public from drunk and/or drugged drivers. People v Tracy, 18 Mich App 529, 532; 171 NW2d 562 (1969). The majority’s definition of "operating” is derived from the statutory definition of "driver” as "every person who drives or is in actual physical control of a vehicle” contained in MCL 257.13; MSA 9.1813. My objection is that "actual physical control” is derived from a *321definitional provision rather than the substantive provision outlining the offense of impaired driving. As criminal legislation, the Michigan Vehicle Code should be narrowly construed, for a person cannot be punished for doing an act unless it clearly appears that his conduct comes within both the spirit and the letter of the law prohibiting it. As stated in People v Samuel Lee, 66 Mich App 5, 10; 238 NW2d 397 (1975):
" 'It is a well-settled rule of law that no one can be punished for doing an act unless it clearly appears the act sought to be punished comes clearly within both the spirit and letter of the law prohibiting it.
"Defendant ought not to be convicted unless he is clearly and unequivocally within the language of a statute which by its terms covers his case.”’
I do not think that defendant Pomeroy’s action in "sleeping it off’ in his friend’s car is conduct which is "clearly and unequivocally” proscribed by the spirit and letter of the drunk driving statutes. There is no evidence that the defendant ever drove or intended to drive the car; rather, he was found asleep, slumped over the steering wheel with his head against the rim. At trial, the defendant testified that he had been drinking that day at a local tavern and that, when he started to fall asleep, he asked a friend to give him the keys to his (the friend’s) car so that he could sleep in the car. The defendant further testified that he turned the car on in order to operate the heater. There was evidence that the weather was cold that night and that defendant was wearing only a light coat and no gloves. At the time, the car was legally parked and neither exterior nor interior lights were on. Defendant did not move the car.
*322Every inference derived from this testimony suggests that defendant had no intention to drive the car. Similarly, the people’s evidence, that defendant pressed the clutch, moved the gearshift to neutral and reached for the key to start the car after the arresting officer had turned the car off, is as consistent with turning on the heater as it is with driving the car. Under the "actual physical control” definition adopted by the majority, defendant’s conduct in simply turning on the car’s ignition in order to operate its heater constituted operation of a motor vehicle, and thus, subjected him to the penalties of drunk driving statutes. This conduct, in my opinion, was not intended to be proscribed by the drunk driving statutes. I would reverse.
As to the companion case, Fulcher, I concur in the majority’s result although for a different reason. The majority affirms Fulcher’s conviction for driving while visibly impaired on the basis of its definition of the statutory term "operate”. I would affirm his conviction, not for the reason that his conduct constituted "actual physical control”, but because I believe that the circumstantial evidence presented below was sufficient to permit the trial court, sitting as trier of fact, to reasonably infer that defendant had driven while visibly impaired, even though the arresting officer had not observed defendant driving the car.
Defendant Fulcher, like defendant Pomeroy, was also found asleep in a car, slumped over the steering wheel with his feet on the floor board. The arresting officer’s testimony indicates that the car’s engine was running and the car was idling in gear. The arresting officer testified as to the presence of a strong odor of intoxicants. However, unlike Pomeroy who was legally parked, the rear *323portion of Fulcher’s car was in a ditch and his front wheels were on the public roadway. In addition, furrows in the snow indicated the point where the car had left the paved portion of the road. No evidence was presented indicating the possible presence of any other person who might have driven the defendant’s car to that point on the highway. Although there was no eyewitness testimony that it was defendant Fulcher who had driven his car into the ditch, I would hold that the cumulative impact of this circumstantial evidence was sufficient, even under a definition of "operate” narrower than that adopted by the majority, to permit the inference that defendant had violated MCL 257.625b; MSA 9.2325(2).
In passing, I note that the proposition that circumstantial evidence is sufficient to sustain a conviction for driving while visibly impaired has recently been embodied and sanctioned in statute. An amendment to MCL 257.625; MSA 9.2325 allows a police officer to arrest a defendant for that offense on the basis of reasonable cause which could, I believe, be supplied by circumstantial evidence. That amendment states:
"A peace officer may, without a warrant, arrest a person when the peace office [sic] has reasonable cause to believe that the person was, at the time of an accident, the driver of a motor vehicle involved in the accident and was driving the vehicle upon a public highway of this state while under the influence of intoxicating liquor.” 1978 PA 391.
For the reasons outlined above, I would affirm defendant Fulcher’s conviction while vacating that of defendant Pomeroy.