Are you really operating that car?

For years NLKJ lawyers have argued with Prosecutors about what “operating” a vehicle means. It seems like it should be an easy answer, but for many years our Indiana legislature did not clearly define the term. You may not be operating a vehicle if you’re in a parking spot and the car is turned off. But, what if the car was running? What if the car was stopped on the side of the road, is that operating? For a long time it wasn’t clear.

Finally, in 2013 the Indiana General Assembly amended Indiana Code 9-13-2-117.5 to define “operate” as “to navigate or otherwise be in actual physical control of a vehicle.” This new definition of “operate” was tested in West v. Indiana, Case No. 54A05-1404-CR-173 (Ind. Ct. App. Dec. 24, 2014). This new definition of “operate” is much broader than previously defined by our Courts. Thus, it is easier for Prosecutors to prove an individual was “operating” a vehicle.

In West v. Indiana, an eyewitness identified Courtney West sitting in the driver’s seat of a parked car drinking a can of beer. The car was parked in a public parking spot along the side of the street. West then exited the vehicle. A short time later the eyewitness saw West come back to the vehicle and sit in the driver’s seat. The eyewitness contacted the police. The officer arrived and blocked in West’s car in the parking spot. The officer approached West’s vehicle, which was running. West told the officer that “I’m trying to pull out, you were in the way.”

The officer asked West to get out of the car and ultimately performed field sobriety tests. West failed the field sobriety tests. West also failed a chemical breath test. She was charged with operating while intoxicated. West was found guilty at a bench trial of operating while intoxicated.

West appealed various issues related to her trial, specifically, whether she was “operating” the vehicle for purposes of the OWI statute.

The Court of Appeals reviewed the new “operating” statute and held that West was “operating” the vehicle. The Court of Appeals held that “a reasonable finder of fact could conclude from this evidence that West was in ‘actual physical control’ of the running car when [the officer] approached her, and she thus operated the vehicle as defined by statute.”.