Mordacq v. State - 585 N.E.2d 22 (Ind. Ct. App. 1992)

Rule:

In a case where a vehicle is discovered motionless with the engine running, whether a person sitting in the driver's seat "operated" the vehicle is a question of fact, answered by examining the surrounding circumstances. To show a defendant merely started the engine of the vehicle is not sufficient evidence to sustain a conviction for operating a vehicle while intoxicated. There must be some direct or circumstantial evidence to show that defendant operated the vehicle.

Facts:

While making his rounds, a police officer noticed the defendant's car parked with its engine running. Approximately one hour later, the officer awakened the defendant, who was sitting in the driver's seat, asleep. After detecting the odor of alcohol on the defendant's breath, the officer administered a breathalyzer test that recorded a blood alcohol content (BAC) level of ten-hundredths percent. The defendant told the officer that she had driven at least two hours earlier, but that she was not sure of the time. The defendant was convicted of operating a vehicle with at least ten-hundredths percent blood alcohol content, a Class C misdemeanor. The defendant appealed, arguing that the evidence was insufficient to sustain her conviction.

Issue:

Under the circumstances, could the defendant be convicted of operating a vehicle with at least ten-hundredths percent blood alcohol content? 

Answer:

No.

Conclusion:

The court reversed the defendant's conviction for operating a vehicle with at least ten-hundredths percent BAC, holding that the defendant was not operating her vehicle within the meaning of Ind. Code § 9-30-5-1 when the officer awakened her. Moreover, there was no evidence that the defendant's car was stopped in the travel portion of the roadway, and the evidence was insufficient in regard to the defendant's admission of having driven some hours before the officer investigated her parked car.