Legal Case Study: Josie's Case

The issue presented is whether or not Josie was operating her vehicle. Based on the fact pattern in Josie’s case the finding of her being in “operation” would be in her favor under the applicable law. Operating while intoxicated (OWI) is defined by Ind. Code § 9-30-5-2, which states, “A person who operates a vehicle while intoxicated commits a Class C misdemeanor.” Ind. Code 9-13-2-118, defines “operator” meaning a person who drives or is in actual control of a motor vehicle upon a highway. To determine whether or not a person was operating a vehicle they used the Hiegel test with four factors but only the second factor concerns us here, it state whether or not the motor was running. The facts in our case show that Josie left the restaurant around 9:00 p.m. and was not seen again until 2:00 a.m., when two police officers found her asleep in the backseat of her car on the side of the road approximately twenty miles from the restaurant. Josie’s car was on the shoulder of the road with the rear fender protruded approximately 8 inches into the far right lane of the road. The car engine was not running, but the headlights were on. The car was in neutral gear. Music from the car stereo was playing and Josie was in the backseat asleep. Our main focus is whether or not the motor was running which as the cases below consist of engine status, auxiliary function and status of gear.
Hiegel v.
State, 538 N.E.2d 265 (Ind. Ct. App. 1989), is similar with our set of facts in that both Hiegel and Josie were found asleep in their vehicles with their headlights on and Hiegel also had the vehicle’s heater on. In Hiegel, the engine was running and was in “park.” Josie had the engine turned off and the car in neutral gear. The court found in Hiegel that the defendant was not operating the
vehicle.

In Shaw v. State, 538 N.E.2d 265 (Ind. Ct. App. 1992), Shaw was found asleep slumped over the wheel of his car, which was running and in gear, although not moving. We can differ Josie from these facts that her vehicle was off and the gear was neutral. Shaw’s vehicle was more than likely an automatic since the officer had to place it in park when he turned off the ignition. The court found that Shaw in this case was operating the vehicle.

The last case on point is Nichols v. State, 783 N.E.2d 1210 (Ind. Ct. App. 2003), in which Nichols was found passed-out in the driver’s seat of the car. The car’s motor was running, but only to keep Nichols warm in the cold weather. The car was in neutral and Nichols had his foot applied to the brake of the car. The court found that Nichols was not operating the vehicle.

Hiegel stated, “showing that the defendant merely started the engine of the vehicle is not sufficient evidence to sustain a conviction for operating a vehicle while intoxicated.” The court would most likely find part two of the Hiegel test “whether or not the motor was running” in favor of Josie.