PER CURIAM.
Defendant was charged with operating a vehicle while intoxicated (OWI) under an ordinance corresponding to MCL 257.625(1). She moved to dismiss the charge, arguing that she was not "operating" the vehicle as defined in MCL 257.35a. The district court denied defendant's motion, but the circuit court reversed and ordered that the charges be dismissed. Relying on People v. Wood, 450 Mich. 399, 404-405, 538 N.W.2d 351 (1995), the circuit court found that because the vehicle had not "moved," defendant was not "operating" it. The prosecution appeals by leave granted. We reverse the circuit court's decision, remand for reinstatement of the charge, and hold that defendant operated the vehicle within the meaning of MCL 257.625(1) because she had "actual physical control" of the vehicle as set forth in MCL 257.35a. A person clearly has actual physical control of a vehicle when starting the engine, applying the brakes, shifting the vehicle from park to reverse, and then shifting back to park.
The facts of this case are not in dispute. On March 7, 2010, a doorman at a martini bar known as "336" alerted Officer Kevin Chumney that he had observed some females in a Pontiac G6 hit a concrete barrier when they entered the parking deck earlier that evening. The doorman advised Chumney that the females were leaving the bar and that they appeared to be drunk. Chumney saw the vehicle, which was legally parked. As he approached, another car backed out and he waited. While waiting, Chumney noticed that the backup lights of the Pontiac were on. He believed that the brake lights were on as well. After the other car drove away, Chumney hesitated because he did not want the Pontiac to back into him. The backup lights turned off, and it appeared that the transmission had been put into park again. The vehicle "settled a little bit," but the tires did not move. Chumney activated his overhead lights and blocked the car. He approached the driver's side and spoke to defendant, who was the driver. The vehicle was still running. Defendant stated that they were not leaving because they were looking for her friend's jacket.
Defendant was charged with OWI. In the district court, defendant moved to dismiss the charge and argued, in part, that she had not "operate[d]" her vehicle as that term was interpreted in Wood because the vehicle was stationary and was not in a position where it posed a significant risk of causing a collision. The district court issued an order denying defendant's motion to dismiss. The district court cited the definition of "operating" in MCL 257.35a as "being in actual physical control of a vehicle regardless of whether or not the person is licensed under [the Michigan Vehicle Code]." Citing the Wood decision, the district court reasoned:
Defendant appealed in the circuit court. Relying on Wood, the circuit court reversed, explaining:
We granted the prosecution's application for leave to appeal. People v. Longeway, unpublished order of the Court of Appeals, entered May 16, 2011 (Docket No. 300493).
This Court reviews de novo questions of statutory interpretation. People v. Yamat, 475 Mich. 49, 52, 714 N.W.2d 335 (2006). In People v. Phillips, 469 Mich. 390, 395, 666 N.W.2d 657 (2003), our Supreme Court set forth the following rules regarding statutory interpretation:
Defendant was charged under MCL 257.625(1), which states:
MCL 257.35a defines "operate" as follows:
Defendant does not dispute that she started the vehicle, applied the brakes to her running vehicle, shifted the vehicle into reverse, and then shifted the vehicle back into park. The prosecution argues that although the vehicle did not move, defendant "operated" the vehicle by shifting gears from park to reverse and applying the brakes. This action, the prosecution claims, posed a danger to other drivers, even if the vehicle was legally parked. For her part, defendant argues that she neither placed the vehicle in motion nor placed the vehicle in a position that posed a significant risk of causing a collision; rather, she was using the vehicle for shelter when approached by the
Rather than focusing on the unambiguous language of the relevant statutes, the parties, the district court, and the circuit court applied principles from Wood, which analyzed the meaning of "operate" when discussing the companion cases of People v. Pomeroy (On Rehearing) and People v. Fulcher (On Rehearing), 419 Mich. 441, 355 N.W.2d 98 (1984). In Pomeroy/Fulcher, our Supreme Court considered whether individuals who were arrested after being discovered unconscious in the driver's seats of running, but motionless, vehicles were operating the vehicles for the purpose of the statute that prohibited operating a motor vehicle under the influence of intoxicating liquor (OUIL). The Court cited the definition of "operator" in MCL 257.36 as "one who is in `actual physical control' of a motor vehicle." Id. at 446, 355 N.W.2d 98. The Court explained:
In Wood, the police discovered the defendant unconscious in his vehicle at a drive-through window of a restaurant. The engine was running, the vehicle was in drive, and the defendant's foot was on the brake. After the police arrested him, they searched his vehicle and discovered marijuana. Relying on Pomeroy/Fulcher, the trial court suppressed the evidence because the police did not see the defendant committing the misdemeanor offense of OUIL. The Supreme Court summarized the conclusions that it had drawn in the prior cases as follows:
After recognizing the difficulty of applying the definition of "operating" when a driver was unconscious, the Court stated:
The Court disagreed with and overruled Pomeroy/Fulcher to a limited degree, explaining:
Several decisions from this Court have applied Wood in the context of sleeping/unconscious drivers discovered inside the motor vehicle, see, e.g., People v. Stephen, 262 Mich.App. 213, 685 N.W.2d 309 (2004); People v. Solmonson, 261 Mich.App. 657, 683 N.W.2d 761 (2004); People v. Burton, 252 Mich.App. 130, 651 N.W.2d 143 (2002), or an intoxicated driver who was standing outside of a parked vehicle, People v. Lyon, 227 Mich.App. 599, 577 N.W.2d 124 (1998). We also very recently applied Wood to a conscious driver in People v. Lechleitner, 291 Mich.App. 56, 60-61, 804 N.W.2d 345 (2010), in which an intoxicated driver drove his truck into the freeway's guardrails. The truck came to rest in the middle of the freeway and was inoperable. The defendant was attempting to push the vehicle to the side of the road when another vehicle swerved to avoid it and crashed into a third vehicle. Id. at 58, 804 N.W.2d 345. The defendant argued that he could not "operate" the truck because it was no longer functioning. Id. at 61, 804 N.W.2d 345. This Court approved jury instructions based on the reasoning in Wood that "`[o]nce a person using a motor vehicle as a motor vehicle has put the vehicle in motion, or in a position posing a significant risk of causing a collision, such a person continues to operate it until the vehicle is returned to a position posing no such risk.'" Id. at 60, 804 N.W.2d 345, quoting Wood, 450 Mich. at 404-405, 538 N.W.2d 351. We rejected the defendant's contention that Wood's reasoning was outmoded and that a lay dictionary should have been used to define "operation" as "to cause to function." Lechleitner, 291 Mich.App. at 61, 804 N.W.2d 345.
However, we find that Wood is inapplicable to this situation involving a conscious (albeit allegedly intoxicated) driver who was sitting inside a stationary vehicle and engaged in operational activity such as starting the engine and changing gears. The Wood Court did not purport to nullify or narrow the clear statutory definitions of "operate" and "operator;"
We find further support in our Supreme Court's decision in Yamat, which was decided 11 years after Wood. In Yamat, the Court considered the definition of "operate" in the context of the felonious-driving statute, MCL 257.626c. The defendant was a passenger in a car and grabbed the steering wheel while fighting with his girlfriend, who was driving. When the defendant grabbed the wheel, the car veered off the road and struck a jogger. Yamat, 475 Mich. at 51, 714 N.W.2d 335. The defendant argued that he did not "operate" the vehicle because he did not have complete control over it. He argued that at most he interfered with his girlfriend's control of the vehicle. Our Supreme Court disagreed, relying on dictionary definitions of particular words in the statutory definition of "operate" set forth in MCL 257.35a. The Court observed that "control" means "power or authority to guide or manage," that "actual" means "existing in act, fact, or reality; real," and that "physical" means "of or pertaining to that which is material." Id. at 53-54 & n. 15, 714 N.W.2d 335 (citation and quotation marks omitted). Although Yamat involved the felonious-driving statute, rather than the OWI statute, both statutes are part of the Michigan Vehicle Code and both statutes use the term "operate." We believe the Yamat Court's discussion of the meaning of that term should apply equally to the OWI statute. Defendant applied the brakes of her running vehicle, shifted the vehicle into reverse, and then shifted back into park. Applying the statutory definition of "operate," as construed in accordance with the dictionary definitions set forth in Yamat, 475 Mich. at 53-54, 714 N.W.2d 335, the evidence indicates that defendant was in "actual physical control" of the vehicle. Thus, she "operated" the vehicle. The fact that it remained stationary is immaterial.
Accordingly, we reverse the circuit court's order and remand this case to the district court for reinstatement of the charge.
Reversed and remanded to the district court. We do not retain jurisdiction.
JANSEN, P.J., and WILDER and KIRSTEN FRANK KELLY, JJ., concurred.