STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     FOR PUBLICATION
                                                                     April 19, 2016
               Plaintiff-Appellant,

v                                                                    No. 324728
                                                                     Oakland Circuit Court
GINO ROBERT REA,                                                     LC No. 2014-250517-FH

               Defendant-Appellee.


Before: GLEICHER, P.J., and JANSEN and SHAPIRO, JJ.

JANSEN, J. (dissenting).

       I respectfully dissent because I believe that it is the role of the trier of fact to determine
whether defendant’s driveway was generally accessible to motor vehicles. Accordingly, I would
reverse and remand for reinstatement of the charge against defendant and for further
proceedings.

      The issue in this case involves whether the portion of defendant’s driveway on which he
drove while intoxicated was “generally accessible to motor vehicles” under MCL 257.625(1).
MCL 257.625(1) provides, in relevant part:

               A person, whether licensed or not, shall not operate a vehicle upon a
       highway or other place open to the general public or generally accessible to motor
       vehicles, including an area designated for the parking of vehicles, within this state
       if the person is operating while intoxicated.

The parties contest whether a private driveway is an area “generally accessible to motor
vehicles” as a matter of law under the plain language of the statute and whether the portion of
defendant’s driveway on which he operated his vehicle while intoxicated was generally
accessible to motor vehicles. The prosecution argues that a private driveway is an area generally
accessible to motor vehicles as a matter of law, while defendant contends that the upper portion
of his private driveway was not generally accessible to motor vehicles. Both parties argue that
the language of MCL 257.625(1) supports their position.

       I believe that the issue whether the upper portion of defendant’s private driveway was
generally accessible to motor vehicles is a question of fact for the trier of fact to determine after
hearing the evidence in the case. The parties agree regarding what occurred during the incident.
Defendant drove his vehicle out of his garage and backed it down his driveway approximately 25

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feet. He stopped driving his car before crossing over the point where the fence line began and
before passing the front of his house. The vehicle’s back bumper was “pretty close to the front
of the house” when the vehicle stopped. Defendant then drove his vehicle back into his garage.
Defendant was intoxicated during the incident. Thus, defendant only drove his motor vehicle
while intoxicated on the upper portion of his driveway, which was encompassed in the backyard
and side yard next to the front of his house.

        However, the parties do dispute whether the driveway was generally accessible to motor
vehicles. The prosecution argues that defendant’s driveway was generally accessible to motor
vehicles because the driveway was not blocked off and defendant, or any visitors or delivery
persons, could access the driveway with a motor vehicle. The prosecution further contends that
defendant did not have any “no trespassing” signs on his property. In contrast, defendant argues
that the area on which he operated his motor vehicle was not generally accessible to motor
vehicles as it was in his “backyard/side-yard,” was next to his house, and was behind the fence-
line of his property. Defendant contends that a reasonable driver would not conclude that he or
she had permission to access or use this portion of his driveway.

         I believe the trier of fact must determine whether the area on which defendant drove his
vehicle while intoxicated was generally accessible to motor vehicles under the particular facts
and circumstances of this case. I disagree with the majority’s conclusion that the area of
defendant’s driveway on which he operated his vehicle was akin to a moat that strangers were
forbidden to cross because it is unclear whether other vehicles were routinely permitted or
forbidden to access the portion of defendant’s driveway on which he operated his vehicle. The
majority concludes that motor vehicles are not widely or generally permitted to access the upper
portion of a private driveway immediately next to a private residence, but also notes that there
are several factual scenarios in which a private driveway may constitute an area generally
accessible to motor vehicles. In this case, there was no evidence presented at the preliminary
examination regarding the frequency with which other vehicles accessed defendant’s driveway.
Therefore, I conclude that the issue whether the upper portion of the driveway constitutes an area
generally accessible to motor vehicles is a question of fact for the trier of fact to determine based
on the evidence presented at trial.

       M Crim JI 15.2 further supports the conclusion that the issue is one for the trier of fact to
determine at trial. M Crim JI 15.2 provides:

              To prove that the defendant operated while intoxicated [or while visibly
       impaired], the prosecutor must prove each of the following elements beyond a
       reasonable doubt:

               (1) First, that the defendant was operating a motor vehicle [on or about
       (state date)]. Operating means driving or having actual physical control of the
       vehicle.

               (2) Second, that the defendant was operating a vehicle on a highway or
       other place open to the public or generally accessible to motor vehicles.




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              (3) Third, that the defendant was operating the vehicle in the [county/city]
       of ____________________________________.

The jury instruction indicates that it is the role of the trier of fact to determine whether a
defendant operated a vehicle on an area generally accessible to motor vehicles because the jury
instruction charges the jury with the task of making this determination. In this case, because
there was no testimony regarding the vehicles that accessed the driveway and because the
prosecution established that vehicles could enter the area, I believe that the issue is one for the
trier of fact to determine after examining the evidence presented at trial. Therefore, I conclude
that the circuit court improperly quashed the information. Accordingly, I would reverse and
remand for reinstatement of the charge against defendant and for further proceedings.


                                                            /s/ Kathleen Jansen




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