The issue presented is whether Josephine Spano was operation her vehicle. 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” as 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 courts use the Hiegel test. This four pronged test determines whether a person operated or was in actual physical control of a motor vehicle including:
(1) whether or not the person in the vehicle was asleep or awake; (2) whether or not the motor was running; (3) the location of the vehicle and all of the circumstances …show more content…
State, 538 N.E.2d 265 (Ind. Ct. App. 1989)

When considering whether a person was operating the vehicle the first part of the Hiegel test is whether or not the person in the vehicle was asleep or awake. In Hiegl, 538 N.E.2d at 266, Shaw v. State, 595 N.E.2d 743,745 (Ind. Ct. App. 1992), and Nichols v. State, 783 N.E.2d 1210,1211 (Ind. Ct. App. 2003), all the defendants were found asleep in their vehicles when the police officers arrived. Josie was also found asleep in her …show more content…
However, with the second factor Josie had the engine off with only her headlights and stereo playing. Unlike in Hiegel, Shaw, and Nichols all of whom had their engines running with at least basic auxiliary functions on. This part of the Hiegel test the court would most likely find in favor of Josie. The third factor about the location of the vehicle and all of the circumstances bearing on how the vehicle arrived at that location would more than likely not be found in Josie’s favor. Unlike in Hiegel who was found in a parking lot of a tavern, Josie was found on the shoulder of a six-lane street which the rear fender protruded approximately 8 inches into the far right lane of the road similar to Shaw. Although, Nichols was found passed out after he parked his vehicle at a car dealership and drank rum and cola. The last factor is the intent of the person behind the wheel. Nichols drank rum and cola while he was waiting for his girlfriend to pick him up because he was lost. While in Shaw and Hiegel they were intending to go somewhere and fell asleep before they could arrive at their destination. Josie left the restaurant including to go somewhere after she had already drank an entire bottle of wine and three pineapple cider beers prior to her leaving. Where she intended to go is irrelevant but she intended to leave the