            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 21, 2019
               Plaintiff-Appellee,

v                                                                  No. 344671
                                                                   Ionia Circuit Court
TIMOTHY KRZEMINSKI,                                                LC No. 2017-017117-FH

               Defendant-Appellant.


Before: SHAPIRO, P.J., and BORRELLO and BECKERING, JJ.

PER CURIAM.

       In this interlocutory appeal, defendant appeals by leave granted1 the circuit court’s order
denying his motion to quash, dismiss, and suppress evidence. For the reasons set forth in this
opinion, we affirm the circuit court’s decision to deny defendant’s motion. However, we reach
our conclusion based on different reasoning than employed by the circuit court.

                                      I. INTRODUCTION

       Defendant was charged with operating while intoxicated, third offense (OWI-3rd), MCL
257.625(1) and (9)(c); resisting or obstructing arrest, MCL 750.81d(1); and driving with license
suspended, MCL 257.904(1) and (3)(a). Both OWI-3rd and resisting or obstructing arrest are
felony offenses. 257.625(9)(c); MCL 750.81d(1). Defendant’s arrest occurred in an open field
behind a residence, and defendant has presented his case to this Court as whether an open field is
an “other place open to the general public or generally accessible to motor vehicles” for purposes
of MCL 257.625(1), which prohibits the operation of “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.”
According to defendant’s view of the facts presented at the preliminary examination, defendant


1
  People v Krzeminski, unpublished order of the Court of Appeals, entered December 5, 2018
(Docket No. 344671).



                                               -1-
was only seen driving his vehicle in the open field and there was no evidence that defendant ever
operated his vehicle on a highway. However, upon plenary review, it is apparent that defendant
paints an inaccurate and incomplete factual picture; such that it is unnecessary for this Court to
decide defendant’s legal questions surrounding defendant operating a motor vehicle in an open
field. Hence, because the evidence at the preliminary examination supported a conclusion that
probable cause existed to believe that defendant violated the statute by driving while intoxicated
on a highway, we affirm.

                                      II. BACKGROUND

       At the preliminary examination, the prosecution presented the testimony of two
witnesses, Timothy Krizov and Michigan State Police Trooper Timothy Moreno.

        Krizov testified that on April 5, 2017, he was driving home and saw a truck in a field
located at the bottom of a hill and adjacent to Charlotte Highway, near the intersection with
Newman Drive. Krizov noticed “the taillights and a light flicker,” and he testified that the truck
was facing away from the highway. Krizov stopped and shined his flashlight toward the truck,
and a person whom Krizov subsequently identified as defendant got out of the truck on the
driver’s side. Krizov described the truck as a teal green, Mazda truck with a “topper.”
Defendant came up the hill toward the road and indicated that he was “out in the mud puddle
with his girlfriend, just out and about.” Krizov asked defendant if he needed help. Defendant
declined and informed Krizov that he lived “right up the road” and was “good.” Krizov testified
that defendant turned around, “kinda did a dance turn and then kinda lost his balance and
almost—you know—not rolled down the hill, but stumbled down the hill.” Defendant got back
into the truck on the driver’s side, and Krizov drove away.

        Moreno testified that on April 5, 2017, he was dispatched to the area near the intersection
of Charlotte Highway and Newman Drive to respond to a call about a vehicle in the ditch. When
he drove by, he did not see any vehicles but he discovered tire tracks on the highway “going into
the mud down there.” Moreno testified that he also found more tire tracks leading from the ditch
onto Charlotte Highway and continuing south on the highway. Moreno followed the tire tracks
to the dirt driveway of a residence on Charlotte Highway. He knocked on the door of the
residence and spoke to the owner, after which he continued following the tire tracks, on foot,
down the driveway. Moreno testified that there was a single set of “wet tire tracks” that had led
him to the residence and that these same tracks continued down the driveway, down a hill, and
“into an open field.” In the field, Moreno saw and heard a pickup truck driving around, which he
described as a “smaller pickup truck” with a “topper.” Eventually, the truck passed within 10
feet of Moreno and stopped. Moreno testified that he saw defendant driving the truck. After the
truck stopped, defendant got out of the truck. At some point, defendant told Moreno that he was
the only one driving. Moreno testified that he could smell an odor of “intoxicants,” that
defendant declined to perform field sobriety tests, and that he arrested defendant for operating
while intoxicated. Defendant physically resisted Moreno’s attempts to place handcuffs on him.
Moreno obtained a search warrant to test defendant’s blood.




                                                -2-
        As pertinent to the issue raised by defendant on appeal,2 the district court concluded at
the end of the preliminary examination that there was probable cause to believe defendant
violated MCL 257.625(1) and bound defendant over to the circuit court, specifically finding that
there was circumstantial evidence that defendant drove his vehicle on Charlotte Highway.

         In the circuit court, defendant filed a motion to quash, dismiss, and suppress. Defendant
argued that the evidence was insufficient to support the district court’s decision to bind him over
and that the issue in the case was actually whether he had operated a motor vehicle in an area
open to the general public or generally accessible to motor vehicles. In a written opinion, the
circuit court denied defendant’s motion, concluding that defendant was prohibited under MCL
257.625(1) from operating his vehicle while intoxicated in the open field where defendant’s
arrest occurred because the field was “generally accessible to motor vehicles” for purposes of the
statute.

                                         III. ANALYSIS

        Defendant argues on appeal that the district court erred in binding him over and that we
should reverse the circuit court’s decision denying his motion to quash, dismiss, and suppress.
As he did below, defendant contends that the prosecution did not sufficiently demonstrate that he
violated MCL 257.625(1) because there was no evidence that he operated his vehicle on
Charlotte Highway and the open field where he was arrested was not a place that was open to the
general public or generally accessible to motor vehicles.

       At its legal core, defendant’s argument is a challenge to the circuit court’s decision on the
motion to quash and the underlying district court bind over decision with respect to his OWI
charge specifically. We thus begin our analysis accordingly.

       “A district court magistrate’s decision to bind over a defendant and a trial court’s
decision on a motion to quash an information are reviewed for an abuse of discretion.” People v
Bass, 317 Mich App 241, 279; 893 NW2d 140 (2016) (quotation marks and citation omitted).
Our review is de novo to the extent that the lower court’s decision was based on an interpretation
of law. Id.

       This Court has previously explained the applicable legal standards as follows:

               “The purpose of a preliminary examination is to determine whether there
       is probable cause to believe that a crime was committed and whether there is
       probable cause to believe that the defendant committed it. MCR 6.110.” People
       v Perkins, 468 Mich 448, 452; 662 NW2d 727 (2003). “The prosecutor need not
       establish beyond a reasonable doubt that a crime was committed. He need present
       only enough evidence” to satisfy the probable cause standard, i.e., sufficient
       evidence “on each element of the charged offense to lead a person of ordinary


2
  Defendant has not raised any issue on appeal with respect to his charges for resisting or
obstructing arrest or driving with license suspended.


                                                -3-
       prudence and caution to conscientiously entertain a reasonable belief of the
       defendant’s guilt.” Id. (quotation marks, citations, and brackets omitted). “Thus,
       charges should not be dismissed merely because the prosecutor has failed to
       convince the reviewing tribunal that it would convict. That question should be
       reserved for the trier of fact.” Id. [Bass, 317 Mich App at 280.]

         MCL 257.625(1) provides in pertinent part that 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 term “operate” means “[b]eing in actual
physical control of a vehicle.” MCL 257.35a(a).3 Defendant does not argue that he was not
intoxicated as that term is used within the statute but instead focuses his argument on whether
there was sufficient evidence to support the conclusion that he operated his vehicle in one of the
prohibited places enumerated in the statute. “MCL 257.625(1) prohibits operating a vehicle
while intoxicated in three types of locations: (1) upon a highway, (2) in a place open to the
general public, or (3) in a place generally accessible to motor vehicles.” People v Rea, 500 Mich
422, 428; 902 NW2d 362 (2017).

        In this case, the evidence introduced at the preliminary examination was sufficient to
satisfy the probable cause standard with respect to the OWI charge. Krizov saw defendant get
out of the driver’s side of his truck while it was in a ditch near the intersection of Charlotte
Highway and Newman Drive. Later the same night, Moreno was dispatched to this same area
based on a call about a vehicle in a ditch. When Moreno arrived, defendant’s truck was gone.
But Moreno found tire tracks leading from the highway into the ditch, then out of the ditch, and
then back onto Charlotte Highway. The tire tracks continued on the highway to a residence, onto
the residence’s driveway, and finally into the open field behind the residence where defendant
was arrested. Moreover, Moreno testified that these tire tracks—which he followed along the
highway directly from the ditch to the open field where defendant was found driving his truck—
were “wet.” Both Krizov and Moreno described defendant’s truck as having a topper. It is
evident that defendant’s truck somehow had to get from the ditch where Krizov saw it to the
open field behind the residence where Moreno discovered defendant. There were wet tire tracks
on the highway connecting these two locations, defendant was driving his truck in the field when
Moreno found him, and defendant told Moreno that he was the only person who had been
driving his truck that night. Based on this evidence, a person of ordinary prudence and caution
could conscientiously entertain a reasonable belief that defendant operated his vehicle on
Charlotte Highway by driving it out of the ditch and down the road to the open field behind the
residence. Bass, 317 Mich App at 280. The prosecutor was not required to prove this element
beyond a reasonable doubt at the preliminary examination. Id. Therefore, the district court did




3
  “Operate” also means “[c]ausing an automated motor vehicle to move under its own power in
automatic mode upon a highway or street regardless of whether the person is physically present
in that automated motor vehicle at that time,” MCL 257.35a(b), but there is no indication that
this provision is applicable in this case.


                                                -4-
not abuse its discretion by determining that there was probable cause to believe that defendant
had committed the crime of OWI based on his operation of his truck on a highway. Id.

        Contrary to defendant’s contentions, this case is not one where law enforcement simply
found him driving his truck in an open field and without any evidence that he had recently driven
his truck on the highway. Consequently, we are not presented with a situation requiring us to
actually decide whether the open field where defendant was arrested is “open to the general
public or generally accessible to motor vehicles” for purposes of MCL 257.625(1), even though
this question is an interesting legal one. See Rea, 500 Mich at 434 n 10, 436 (holding that a
private driveway “is an area ‘generally accessible to motor vehicles’ for purposes of MCL
257.625(1)” but expressly declining to decide “whether MCL 257.625(1) also prohibits driving
while intoxicated in other places—such as lawns or open fields—that are not designed for such
traffic”). Because these two locations (a place open to the general public, or a place generally
accessible to motor vehicles) are not actually implicated by the facts of this case—which simply
involves a rather ordinary situation where defendant allegedly drove on a highway to a location
where he was apprehended and that happened to be an open field—the question whether the
open field in this case was open to the general public or generally accessible to motor vehicles is
a hypothetical one that is best left for another day. See id. at 442 (LARSEN, J., concurring in the
result only) (“Because I believe that driveways are ‘generally accessible to motor vehicles,’ I
would resolve this straightforward case on its own facts and leave for a future case the
determination of the precise boundaries of MCL 257.625(1).”); id. at 436 (I believe that the case
before us fits easily within the statute; I would, therefore, wait for a case that pushes the
boundaries of MCL 257.625 to explore where its edges lie.”). Unfortunately, this case is not the
one “that pushes the boundaries of MCL 257.625 to explore where its edges lie.” Id.

         Put differently, this particular question regarding the application of MCL 257.625(1) to
the open field in this case is not ripe for our review. “[T]he ripeness doctrine precludes
adjudication of a hypothetical or contingent claim before an actual injury is incurred.” People v
Bosca, 310 Mich App 1, 57; 871 NW2d 307 (2015). Determining whether an issue is justiciably
ripe requires us to “assess whether the harm asserted has matured sufficiently to warrant judicial
intervention,” which involves “the balancing of any uncertainty as to whether defendant[ ] will
actually suffer future injury, with the potential hardship of denying anticipatory relief.” Id. at
56 (quotation marks and citation omitted; alteration in original). In this case, a decision on
whether the open field was open to the general public or generally accessible to motor vehicles
for purposes of MCL 257.625(1) would have no bearing on whether the district court abused its
discretion by binding defendant over to the circuit court because, as we have already explained,
there was sufficient evidence to support a conclusion that probable cause existed to believe that
defendant drove his truck on Charlotte Highway. Thus, this question is a purely hypothetical one
that is not ripe for our adjudication. Id. at 56-57.




                                               -5-
        We affirm the circuit court’s decision to deny defendant’s motion, but we do so for the
alternate reasons expressed in this opinion.

       Affirmed.

                                                          /s/ Douglas B. Shapiro
                                                          /s/ Stephen L. Borrello
                                                          /s/ Jane M. Beckering




                                              -6-
