Michigan Supreme Court Lansing, Michigan
Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED MAY 31, 2006 PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,

v No. 128724 MACARIO G. YAMAT, JR., Defendant-Appellee.

________________ _______________ BEFORE THE ENTIRE BENCH PER CURIAM. This case concerns the appropriate interpretati on of the definition of “operate” in the Michigan Vehicle Code. 1 The Court of Appeals panel below interpreted the statute to essentially require exclusive control of a motor vehicle, and upheld the circuit court’s affirmance of the district court’s decision to quash the felonious driving charge ag ainst defendant. We hold that the plain language of the statute requires only “actual physical control,” not exclusive control of a vehicle. Because the prosecutor has show n probable cause that defendant was in

1 MCL 257.1 et seq

.actual physical control of the vehicle at the time of the inci dent, we reverse the judgment of the Court of Appeals and remand for trial. Facts and Procedural History For purposes of the prelim inary examination, the p arties stipulated to the following facts: Defendant was a passenger in the vehicle his girlfriend was driving. As she drove, the couple ar gued. During the argument, defendant grabbed the steering wheel and turned it. When th e defendant wrenched the steering wheel, the vehicle veered off the road, struck a jogger and caused the jogger severe injuries. The prosecutor ch arged defendant with one count of felonious driving. 2 However, the district court refused to bind defendant over for trial after the preliminary examination because it concluded that the prosecu tion had not established that the statute proscribed defendant’s conduct. The circuit court affirmed the district court’s decisi on because defendant did not have complete control of the vehicle’s moveme nt. The Court of Appeals affirmed in a published opinion per curiam, 3 holding that defendant wa s merely interfering with his girlfriend’s operation of the vehicle, but was not operati ng the vehicle himself. The prosecutor sought leave to appeal, and this Co urt scheduled and heard oral

2 MCL 257.626c.

3 People v Yamat , 265 Mich App 555; 697 NW2d 157 (2005).

2arguments on whether to grant the application. 4 In lieu of granti ng leave to appeal, we reverse the judgment of the Cour t of Appeals and remand for trial. 5
Standard of Review This Court reviews questions of statutory interpretation de novo

. 6 In order to bind a defendant over for trial, the prosecutor must establish probable cause, which requires a quantum of evidence “‘sufficient to cause a person of ordinary prudence and caution to conscientious ly entertain a reasonable belief’”of the accused's guilt on each elemen t of the crime charged. 7 A district court’s decision declining to bind a defendant over is reviewed for an abuse of discretion. 8 Analysis The felonious driving provision of the Michigan Vehicl e Code provides: A person who operates a vehicl e upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designate d for the parking of vehicles, carelessly and heedlessly in willful and wanton disregard of the rights or safety of others, or w ithout due caution and circumspection and at a speed or in a manner that endangers or is likely to endanger any person or property resulting in a serious impairment of a body function of a person, but does not cause death, is guilty of felonious

4 474 Mich 859 (2005).

5 MCR 7.302(G)(1).

6 People v Jones , 467 Mich 301, 304; 651 NW2d 906 (2002).

7 People v Yost , 468 Mich 122, 126; 659 NW2d 604 (2003), quoting People v Justice (After Remand) , 454 Mich 334, 344; 562 NW2d 652(1997).

8 People v Goecke , 457 Mich 442, 463; 579 NW2d 868 (1998).

3driving punishable by imprisonment for not mo re than 2 years or a fine of not more than $2,000.00, or both. [9]

The issue in this case is whether d efendant was “operating” the vehicle within the meaning of the statute. To ascertain th e meaning of a statutory term, this Court construes the term reasonably, according to its plain and ordinary meaning. 10 The Michigan Vehicle Code specifically defines “operate” as “being in actual physical control of a vehicle reg ardless of whether or not the person is licensed under this act as an operator or chauffeur.” 11 Similarly, the code defines “operator” as “every person, other than a chauffeur, wh o is in actual physical control of a motor vehicle upon a highway.” 12 The Court of Appeals accurately quoted the relevant statutory definitions and utilized a dictionary definition in order to ascertain the common meaning of “control.” The panel held that “control” “means ‘power or authority to guide or manage.’” 13 We agree that this is an appropriate definition of the statutory term “control.” However, the panel did not correctly apply the common meaning of the statutory terms to the facts in this

9 MCL 257.626c.

10 Veenstra v Washte naw Country Club , 466 Mich 155, 160; 645 NW2d 643 (2002); MCL 8.3a.

11 MCL 257.35a.

12 MCL 257.36. See also MCL 257.13, wh ich provides, “‘Driver’ means every person who drives or is in ac tual physical control of a vehicle.”

13 Yamat at 557, quoting Webster’s New Collegiate Dictionary (1980).

4case. Instead, the panel concluded that “[a]lthough defenda nt’s act caused the vehicle to veer off the road , defendant did not have the actual physical control of the vehicle, i.e., the power or authority to guide or manage the vehicle.” 14 On the contrary, we hold that causing the vehicl e to change direction and “veer off the road” squarely meets the statutory requiremen t of actual physical control, which is understood to mean the “power . . . to guide” the vehicle. 15 Compounding its erroneous applicati on of the common understanding of the statutory terms at issue, the Co urt of Appeals panel looked beyond the appropriate defined meanin g of “operate” to examine how that term had been interpreted in a case involvi ng an insurance contract. The Court of Appeals panel cited Farm Bureau Gen Ins Co v Riddering 16 to buttress its conclusion that “actual physical control” of a vehicle requires control over “all func tions necessary to make the vehicle operate.” 17 In Riddering , a woman grabbed the steering wheel of the car in which she was ridi ng, causing the car to collid e with a tree. The other

14 Yamat at 557.

15 While “control” is the critical compon ent of the statutory definition, the definition also includes th e words “actual,” which mean s “existing in act, fact, or reality; real,” Random House Webster’s College Dictionary (1997), p 14, and “physical,” which means “o f or pertaining to th at which is material,” Id

. at 983. These definitions lend furt her support to the conclusi on that defendant’s act of grabbing the steering wheel and wrenching it conform to the statutory definition of “operate.”

16 172 Mich App 696; 4 32 NW2d 404 (1988).

17 Yamat at 558.

5passengers in the car sustained severe injuries and filed an action against her. The woman’s homeowner’s insuran ce provider refused to defend the lawsuit because the policy specifically ex cluded coverage for liab ility arising out of the “operation” of a vehicle. The Riddering panel held that th e insurer must provide coverage, reasoning that “[o]peration includes control over all the parts that allow the vehicle to move, not just the steering function.” 18 Therefore, the panel concluded that the woman was not “opera ting” the vehicle for purposes of the insurance policy. The Court of Appeals panel below found Riddering “analogous” and held that a “passenger who grabbe d and turned the steering wheel without permission

was interfering with the operation of the vehicle, not operating it.” 19 The Court of Appeals panel erred in relying on Riddering because Riddering is entirely inapposite for a number of reasons. 20 First, basic principles of statutory construction require that courts construe statutory terms according to their plain or

18 Riddering at 703 (emphasis added).

19 Yamat at 558, citing Riddering at 703.

20 Unlike the dissent, we are hard-pressed to hold “that the law laid down in Riddering would affect this defe ndant’s understanding of what constitutes a crime under the circumstances of this case.” Post at 9. Surely, it is one of the stranger ideas the dissent has offered to suggest that, in the heat of an argument with his girlfriend, defendant wren ched the steering wheel of a moving vehicle in “reliance” on a Court of Appeals decision co nstruing an insuran ce contract that he was not “operating” the vehicle within th e meaning of the Mich igan Vehicle Code.

6common meanings. 21 As noted, the Michigan Vehi cle Code defines “operate” as “actual physical control.” Because the insu rance policy did not us e that definition, the Riddering panel never discussed the plai n or common meaning of “actual physical control.” As such, the Riddering panel’s interpretation of the undefined word “operate” in th e insurance contract is not pertinent to an interpretation of the statutorily defined term “operate.” Second, the Riddering panel arrived at its conclusion that the contract term “operate” meant “complete control” of the vehicle because , misapplying the

contra proferentem principle for contract interpretation, 22 they construed the term “narrowly” and against the insurance company. The Riddering panel erred in resorting to this principle without first c oncluding that the term “operate” in the contract was ambiguous. 23 Regardless of the proper a pplication of specific rules of construction applicable to contracts, when construing statut es, our obligation is to construe the statutory term reasonabl y, according to its plain and ordinary meaning. 24

21 MCL 8.3a; Nastal v Henderson & A ssoc Investigations, Inc , 471 Mich 712, 720; 691 NW2d 1 (2005).

22 The contra proferentem principle is “[u]sed in connection with the construction of written documents to the effect that an ambiguous provision is construed most strongly against the person who selected the language.” Black’s Law Dictionary (5th ed), p 296.

23 Id

. 24 Sotelo v Grant Twp , 470 Mich 95, 100; 680 NW2d 381 (2004).

7Where, as here, the statutory terms are not ambiguous and are susceptible to a plain reading, in construing the statutor y term “operate,” there is no principled basis for resorting to an inapposite insu rance case as an aid to construction as suggested by the panel below and the di ssent. The definition of “operate” contained in the Michigan Vehicle Code requires the exercise of “actual physical control” over a motor vehicle. 25 Unlike the Court of App eals, we cannot conclude that the statute effectively requires exclusive control “of all the functions necessary to make the vehicle operate,” because such a construction does not comport with the plain language of the statutory definition. 26

25 Remarkably, the dissent accuses the majority of ignoring the statutory definition of “operate,” yet the dissent a pproves of the Court of Appeals reliance on extraneous case law that construes th e term “operate” in an insurance contract without reference to the statutor y definition of “operate.”

26 The dissent claims that we misconstr ue the Court of Appeals decision by suggesting that it required “ex clusive control” as a predicate for “operating” the vehicle. While the panel did not use the word “exclusive,” th at is surely the import of its reliance on Riddering’s test that required “c ontrol over all the parts that allow the vehicle to move, not just the steering function.” Riddering at 703. This is amplified by the panel’s own holding that “[d]efendant could not have stopped or started the vehicl e, nor could he have cause d it to increase or decrease in speed. Defendant could not use any of the vehicle’s other instruments; therefore he was not in actual physi cal control of the vehicle.” Yamat at 557. The dissent would also require “exclusi ve control” because Justice Kelly finds persuasive the fact th at the defendant had no “c ontrol” over even ancillary devices such as the turn signal and wi ndshield wipers to demonstrate why his actions did not satisfy the Michigan Vehicl e Code. Justice Kelly asserts that she does not advocate “exclusive control” becau se “[i]f two or more individuals agree to work the components of a vehicle t ogether, then each is an operator.” Post at 12. While the dissent’s “cooperative opera tion” theory does not meet a strict definition of “exclusive,” it still requires a concerted effort to control all of the (continued...)

8As applied to the facts of this case, defendant’s act of grabbing the steering wheel and thereby causi ng the car to veer off the road clearly constitutes “actual physical control of a motor vehicle.” 27 Utilizing the proper st atutory definition of “operate,” the prosecutor ha s clearly established sufficient probable cause that (...continued) vehicle’s instruments. In fact, applying the dissent’s construc tion, because neither the driver nor the defendant had complete control over a ll of the car’s devices, nor agreed to work together, no one was operating this vehicle at the time it struck the jogger. Justice Kelly claims that the majority has inco rrectly applied her analysis because defendant’s girlfriend remaine d in “control” despite defendant’s “interference.” It is difficult to square the dissent’s claim that the girlfriend was in control, despite not having control ov er the steering wheel, with the dissent’s argument that defendant did not have co ntrol because he could not control the vehicle’s ancillary devices. Clearly, d efendant exercised the “power to guide” the vehicle, which is the plain meaning of control that the Court of Appeals cited and we adopt. It is the dissent that refuses to give “control” its natural meaning by requiring exclusive or complete control.

27 Under the dissent’s construction of this phrase, when defendant grabbed the steering wheel and turned it, causing the vehicle to v eer off the road and strike a jogger on the side of the road, he was merely “hindering” hi s girlfriend’s control over the vehicle because “h e could not have activated the headlights or turn signals.” Post at 5. Contrary to the dissent’s arguments, the person who controls the steering wheel does “‘exercise restraint or direction over; dominate, regulate, or command’” a vehicle. Post at 2 (citation omitted). Specifically, the person who controls the steering wheel, like defe ndant, can command the vehicle to go in any direction he or sh e chooses. Arguing and causing a distraction to the driver is “hindering;” seizing the steering wheel wh en a car is in motion and causing the vehicle to change direction is an ex ercise of actual physical control. It simply strains credulity for the dissent to s uggest that because the defendant did not have contro l of every ancillary device , such as the windshield wipers, defendant’s act of physically wrenching the steering wheel of the car was not an act of actual physical control. Th e dissent’s analysis is not advanced by suggesting that one who turns the steering wheel of a parked vehicle cannot exercise control. Post at 7. Here, defendant grabbed the wheel of a moving vehicle and, in so doing, caused it to ch ange direction. Defendant’s action was one of “control” in every sense of th e word unless, as does the dissent, one requires that there be complete or exclusive control.

9defendant violated the MCL 257.626c. Because the di strict court applied an erroneous definition of the t erm “operate,” it abused its discretion by refusing to bind defendant ov er for trial at the preliminary examination. We therefore reverse the judgment of the Court of App eals and remand this case for trial. Clifford W. Taylor Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

10v S T A T E O F M I C H I G A N SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
No. 128724 MACARIO G. YAMAT, JR., Defendant-Appellee.

WEAVER, J. ( concurring ). I concur in the result and reasoning of the majo rity opinion with one exception. I disagree with one of the majority’s criticisms in dicta of a Court of Appeals decision, Farm Bureau Gen Ins Co v Riddering. 1 I disagree with the majo rity’s statement that Riddering “erred in resorting to [the principle of contra proferentem ] without first conclu ding that the term ‘operate’ in the [insurance] contract was ambiguous.” Ante at 7. A review of Riddering reveals that that Court of Appeals pa nel in that case did conclude that the contract terms at issue were susceptib le to different interpretations; thus, it properly construed the contract against the drafter. See Klapp v United Ins Group Agency, Inc, 468 Mich 459, 481-487; 663 NW2d 447 (2003) (Weaver, J.

1 172 Mich App 696; 432 NW2d 404 (1988).dissenting), and Raska v Farm Bureau Mu t Ins Co of Michigan, 412 Mich 355, 362; 314 NW2d 440 (1982)

. Elizabeth A. Weaver

2________________ _______________ v S T A T E O F M I C H I G A N
SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
No. 128724 MACARIO G. YAMAT, JR., Defendant-Appellee.

CAVANAGH, J. ( dissenting ). This Court scheduled and heard oral arguments on the prosecutor’s application. 474 Mich 859 (2005). After this process, I believe that the parties’ advocacy and the significance of this issu e weigh in favor of granting leave to appeal. Therefore, I must res pectfully dissent from today’ s decision. Rather than peremptorily reversing the judg ment of the Court of App eals, I would grant leave to appeal and decide this case aft er full briefing and oral argument.

Michael F. CavanaghV S T A T E O F M I C H I G A N SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
No. 128724 MACARIO G. YAMAT, JR., Defendant-Appellee.

KELLY, J. ( dissenting ). In this case, the majority claims that the Court of App eals failed to apply the “plain meaning” of the words used in MCL 257.626c. This is despite the fact that the Court of Appeal s referred to a dictionary and applied dictionary definitions in interpreting the words in question. I believe that the Court of Appeal s read the words as intended by the Legislature. Therefore, I would affirm its decision, along with the district court’s dismissal of the charge of felonious driv ing and the circuit court’s affirmance of the district court’s decision.
T HE M EANING OF “O PERATE ” Felonious driving is codified at MCL 257.626c, which provides: A person who operates a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designate d for the parking of vehicles, carelessly and heedlessly in willful and wanton disregard of the rights or safety of others, or w ithout due caution and circumspectionand at a speed or in a manner that endangers or is likely to endanger any person or property resulting in a serious impairment of a body function of a person, but does not cause death, is guilty of felonious driving punishable by imprisonment for not mo re than 2 years or a fine of not more than $2,000.00, or both. [Emphasis added.] The focus of our discussion is the meaning of the word “operates.” Although the Legislature does not define “operates” in this statut e, it does offer definitions elsewhere in the Michig an Vehicle Code. MC L 257.35a provides: “Operate” or “operating” mean s being in actual physical control of a vehicle regardless of whether or not the person is licensed under this act as an operator or chauffeur. The code also defines “operator.” “‘Op erator’ means every p erson, other than a chauffeur, who is in actual physical control of a motor vehicle upon a highway.”
MCL 257.36. In both definitions, th e central focus is on “co ntrol.” Therefore, our interpretation of MCL 257.626c depends on the meaning of “control.” Random House Webster’s College Dictionary (2001) defines “control” as “to exercise restraint or direction over; dominate, regulate, or command.” “Dominate” and “command” are strong words. They de monstrate more than mere influence. 1

1 It is unlikely that the use of th e strong terms “dominate” and “command” in this definition is an accident. The Merriam-Webster Online Dictionary defines “control” as “to exercise res training or directing influe nce over: REGULATE[.]” See <http://www.m-w.com/dictionary/c ontrol> (accessed May 5, 2006). Dictionary.com defines the word as: “To ex ercise authoritative or dominating influence over; direct.” See <http://d ictionary.reference.com> (accessed May 5, 2006). The Cambridge Dictionaries Online offers the following definition: “to order, limit, instruct or rule something, or someone's actions or behaviour[.]” See<http://www.diction ary.cambridge.org> (accessed May 5, 2006). Just as in the (continued...)

2These terms connote a sense of power ove r the object. While they have some relation to influence, “dominate” and “co mmand” carry more force. Both terms present the idea of ov erriding influence, which is more than a mere or any influence. The majority’s use of “control” in this case is interchangeable with “influence.” This is simp ly inconsistent with the definition of “control.” Therefore, the majority is hol ding the prosecution to a lesser standard than the Legislature intended and in dicated by use of the t erm “control” in both MCL 257.35a and MCL 257.36. Had the Legislature in tended to substitute the term “influence,” it could have done so. Appellate courts shoul d not easily assume that the Legislature made a mist ake in drafting and inadvertently used one word when intending another. Robinson v Detroit , 462 Mich 439, 459; 613 NW2d 307 (2000); Detroit v Redford Twp , 253 Mich 453, 456; 235 NW 217 (1931). Although the majority does not expressly say so, its analysis implies it. Here, in the simple act of grabbing the steering wheel, defendant did not dominate or command the vehicle. The undisputed facts show that the driver remained in command of all the other elemen ts of the vehicle. For instance, the driver still dominated the gas pedal, brake pedal, igniti on, emergency brake, turn signals, and windshield wipers. Defenda nt did not have any command over these

(...continued) Random House Webster’s College Dictionary definition, the common theme among these definitions is dominating in fluence or directing influence. Each definition shows more than simple influence.

3important elements of driv ing. Given that defendant was not dominating the vehicle, he was not in control of the vehicle, 2 and the district court properly dismissed the charge of felonious driving.
T HE D ISTINCTION B ETWEEN C ONTROL AND I NTERFERENCE The lower courts were careful to note the distinction betw een control of a vehicle and interference with that control. In the majority ’s decision, that distinction is ignored because the major ity uses “control” interchangeably with “influence.” I believe that the dis tinction between exerci sing control and interfering with that control is relevant here. By ignoring it, the majority has failed to effectuate the Legislature’s intent in choosing to use th e term “control.” The primary goal of statutory interpretation is to give effect to the Legislature’s intent. Frankenmuth Mut Ins Co v Marlette Homes, Inc , 456 Mich 511, 515; 573 NW2d 611 (1998). Random House Webster’s College Dictionary (2001) defines “interfere” as “to come into opposition or collision so as to hamper, hinder, or obstruct someone or something[.]” This is a c oncept distinct from control. In fact, it can be seen as the opposite. The person exercising cont rol is dominating and commanding the

2 One Look Dictionary Search offers another definition of “control” that is helpful in the analysis of this case: “verb: handle and cause to function (Example: ‘ Control the lever’ )[.]” See <http://www.o nelook.com> (accessed May 5, 2006). Defendant’s actions were not what caused the car to function. The driver caused the car to function. As w ill be discussed later in the opinion, defendant was merely interfering with this process.

4object. A person interfering is hampering , hindering, or obs tructing that domination or command. This case demonstrates the salient po int. The driver of the car was in command of the vehicle. She was ex ercising direction over it by regulating the gas pedal, brake pedal, emergency brake, and steeri ng wheel. This command caused the car to function. Defendant, on the other hand, hampered that command by grabbing the steering wh eel. This action did not place the vehicle under his command. Rather, it hindered and obstructed the driver’s command and ability to direct the vehicle. By seizing the wheel, defen dant could not cause the car to stop. He could not increase or decrease its speed. And he could not have activ ated the headlights or turn signals. All he could do was hamper the driver in steering the vehicle in the direction she chose. Because this ability fits the definition of “interference” rather than “control,” the Court of App eals properly affirmed the lower courts’ decisions to dismiss the felonious-driving ch arge. Ignoring this distinction, the majority offers no justification for its failure to effectuate the intent of the Legislature.
T HE D ISCUSSION OF C IVIL C ASES Much of the majority’s opinion centers on criticizing the Court of Appeals for relying on a civil case. The Court of Appeals supported its decision with a reference to a civil case dealing with the same factual scenari o as in this case, but in the context of an insurance contract, Farm Bureau Gen Ins Co of Michigan v

5Riddering , 172 Mich App 696; 432 NW2d 404 (1988). Given that Riddering was factually close to this case and construed essentially th e same term, operation, as does this case, it was wholly appropriat e for the Court of Appeals to reference it. 3 Riddering noted the distinction between interference and operation: Operation includes more than si mple control as Pioneer State seems to argue on appeal. While Ms. Riddering did exercise some control over the vehicle by grabbi ng the steering wheel, steering is only part of operating a vehicle. Operation necessarily includes the additional functions of controlling the gas and brake pedals and all other components necessary to make a vehicle run. Operation includes control over all the parts that allow th e vehicle to move, not just the steering function. Obvi ously, one cannot operate a vehicle only with the steering—there must be acceleration to get anywhere and there must be braking to stop the vehicle, along with control over other key components , such as the engine. We can reach no other logical co nclusion on the facts of this case than that Ms. Riddering int erfered with the operation of the vehicle while it was being operated by Ms. Jaarsma. Ms. Jaarsma unequivocally testified at her de position that Ms. Riddering’s actions were a surprise and without consent or permission and the trial court so found. It logically follows th at Ms. Riddering’s actions, in order to constitute operation or use, had to be with Ms. Jaarsma’s consent or permission, because Ms. Jaarsm a was operating the vehicle at the time while occupying the driver's seat. Without this needed consent, Ms. Riddering’s actions did not constitute opera tion of the vehicle, but, rather, interference with its operation. [ Id . at 703.] The majority first contends that Riddering used some oth er definition of “operate” than the one ap propriate for this case. Again, the majority claims that it

3 As Justice Felix Frankfurter once stat ed, “If the purpose of construction is the ascertainment of meani ng, nothing that is logi cally relevant should be excluded.” Frankfurter, S ome reflections on the reading of statutes, 47 Colum L R 527, 541 (1947), q uoted in Shapiro, The Oxford Dictionary of American Legal Quotations (New York: Oxfo rd University Press, 1993) p 390.

6is applying “the pl ain language.” See ante at 1. This claim is at odds with the fact that the majority fails to state what makes its defi nition of “operate” different from the Court of Appeals definition in either this case or in Riddering

. Next, the majority claims that Riddering improperly stated that “[o]peration includes more than simple control . . . .” Id . The paragraph that followed demonstrated that the Court of App eals was noting the difference between mere influence and the domina ting or directing influen ce required to meet the definitions of “control” discussed before. Riddering noted that, while Ms. Riddering did have some infl uence over the vehicle, it did not rise to the level of the dominating influence nece ssary to reach the meaning of “operate.” This is because Ms. Riddering could not command the gas and brake pedals or any of the other components necessary to make the ve hicle run. Therefore, she did not have sufficient control of the vehicle to be considered an operator. Id

. Although the majority passe s over this point, the Riddering conclusion is eminently consistent with common sense. Everyon e who has been in an automobile knows that you cannot operate it simply by m oving the steering wheel. If you sit in a parked car and move the steering wheel clockwise and counterclockwise, you will not move the ve hicle. This is because it takes more than influence or “simple control” over the steering wheel to make a car function. Simply put, no one woul d believe that interference with a steering wheel is sufficient to operate a car. Given that the Court of Appeals reading of the statute is consistent with common sense, it should not be casually overturned.

7The majority also comp lains that reliance on Riddering is inappropriate because that decision narro wly construed an exclusion in the language of an insurance contract. The ma jority feels that such narrow construction is inappropriate in a criminal case. 4 I disagree. The rule of lenity should be used when construing a criminal statute. It requires that criminal statutes be construed strictly and in favor of the defendant. United States v Wiltberger , 18 US (5 Wheat) 76, 95; 5 L Ed 37 (1820). The rule demands sensitivity to the rights of individual defendants. Id . Lenity is required because, often, it provides th e only means of giving fai r warning to people about what behavior is criminal. Constitutionally, fair warn ing is given only if an ambiguity in a criminal statut e is construed to apply to conduct that the statute clearly designates as criminal. United States v Lanier , 520 US 259, 266; 117 S Ct 1219; 137 L Ed 2d 432 (1997). In this case, if there is any question ab out the level of control necessary to meet the meaning of the wo rd “operate,” it must be resolved in favor of the

4 The majority also indicates that st rict construction wa s inappropriate in Riddering . I disagree and add that the questi on is not before us and any mention of it by the majority is mere dictum. Given the nature of insurance contracts, I continue to believe that they should be strictly construed against the drafting insurance company and in fav or of the insured. Hillburn v Citizens’ Mut Auto Ins Co , 339 Mich 494, 498; 64 NW2d 702 (1954); Kennedy v Dashner , 319 Mich 491, 494; 30 NW2d 46 (19 47). For more detail on the nature of insurance contracts, please see the “adhesion contracts” section of my di ssenting opinion in Rory v Continental Ins Co , 473 Mich 457, 505-511; 703 NW2d 23 (2005) (Kelly, J., dissenting).

8accused. The majority’s reading creates ambi guity in this stat ute because it is no longer clear what level of influence over a vehicle is sufficient to meet the definition of “operate.” The rule of lenity is especia lly important here, given that Riddering held that a person’s actio n in grabbing the steering wheel does not constitute operating a motor vehicle. It must be expe cted that the law laid down in Riddering would affect this defendant’s understanding of what constitutes a crime under the circumstances of this case. Fair warning mandates that it is made clear to people wh at the law intends to do if they cro ss a certain line. Id . at 265. “‘The underlying principle is that no man shall be held criminally responsib le for conduct which he could not reasonably understand to be proscribed.’” Bouie v Columbia , 378 US 347, 351; 84 S Ct 1697; 12 L Ed 2d 894 (1964), quoting United States v Harriss , 347 US 612, 617; 74 S Ct 808; 98 L Ed 989 (1954). No one should be left to speculate about what constitutes a crime or about th e meaning of a penal statute. Bouie , 387 US 351, quoting Lanzetta v New Jersey , 306 US 451, 453; 59 S Ct 618; 83 L Ed 888 (1939). In this case, defendant and all others in the state could reasonably believe that interference with someone operating a motor vehicle would not be equated to operation of the vehicle. In changing the Riddering analysis, the majority holds defendant criminally responsible for con duct that he could not reasonably have

9understood to be proscribed. Bouie , 378 US 351. This violates the constitutional right of fair notice. Id

. T HERE IS NO R EQUIREMENT OF E XCLUSIVE C ONTROL The majority’s most inexp licable criticism of the Court of Appeals decision is its claim that the Court’s interpreta tion of the statute required the accused to have acquired “ exclusive control” of the vehicle. Ante at 1 (emphasis in original). The word “exclusive” is not used once by the Court of Appeals. The Court of Appeals found no requirement of exclusiv e control. Instead , it recognized the difference between interference and c ontrol. It is this distinction that the majority fails to acknowledge and that apparently l eads to its misinterpret ation of the Court of Appeals opinion. As discussed earlier, there is an undeni able distinction between control and interfering with control. MC L 257.626c requires the form er. Defendant’s conduct constituted the latter. By recognizing the distinction, th e Court of Appeals did not require that all control be exclusive. Another Court of Appeal s opinion in a civil case offers a good example of this point. In Flager v Associated Truck Lines, Inc , 5 two girls rode together on a motor scooter. One operated the throttle and steered. The other operated the brake. This ended up bein g a poor choice because the ride terminated in their collision with a truck. Flager v Associated Truck Lines, Inc , 52 Mich App 280,

5 52 Mich App 280; 21 6 NW2d 922 (1974).

10281-282; 216 NW2d 9 22 (1974). To decide the case, the Court of Appeals needed to interpret the meaning of “operator.” It turned to the definition offered in the Michigan Vehicle Code, MCL 257.36. Flager, supra . at 282 n 1. The Court concluded that each girl constituted an “operator” because of their agreement to cooperate in handl ing the motor scooter: In the extremely unique facts of this case, the evidence is undisputed that both girls agreed to and had some measure of physical control over the operation of the motor scooter. Patty, the girl who was to control the throttle and the steering, was unable to apply the brake due to the constr uction of the motor scooter. The scooter could be controlled only by the two girls acting together; without the actions of one of th em, an essential control function could not be performed. The statut e defines an “operator” as “every person * * * who is in actual physical control of a motor vehicle”; therefore, Vickie comes w ithin the definition b ecause she was one of the persons who was in control of the motor scooter. The trial court did not err either in his ru ling or instruction to the jury th at Vickie was an operator of the motor sc ooter as a matter of law. [ Id . at 283, quoting MCL 257.36.] Because of the girls’ co operation, all of the essential functions of the vehicle were controlled. Flager differed from Riddering in that in Riddering there was no cooperation. Riddering , 172 Mich App 703. And it is the lack of that cooperation that marks the distinction between contro l and interference. Contrary to the majority’s contention, the Cour t of Appeals did not require exclusive control. Instead, it required that, if two people are involved, they must work in cooperation with one another to operate a vehicle. Otherw ise, the surprise actions of one constitute interferen ce with the other’s cont rol of the vehicle. People v

11Yamat , 265 Mich App 555, 557 ; 697 NW2d 157 (2005); Riddering , 172 Mich App 703; Flager , 52 Mich App 282-283. In this case, there was no agreement to work in coopera tion in order to move the vehicle. Instead, as in Riddering , defendant’s action of grabbing the wheel came as a surprise to the person driving. Th erefore, defendant interfered with the vehicle’s control rat her than controlled it, and the district court properly refused to bind him over for trial. With no small amount of acerbity, the majority accu ses my analysis of secretly requiring exclusive control. A simple reading of this section of my opinion disproves the accusation. I believe, as have the past co urts of this state when called on to address this factual scen ario, that control of a vehicle requires more than grabbing a steering wheel. But this does not mean that only one person may control a vehicle at one time. If tw o or more individuals agree to work the components of a vehicle t ogether, then each is an op erator. This is what was recognized in Flager . I believe that the Court of Appeals set forth the proper means of addressing the factual scen ario presented in this case in Flager , Riddering , and Yamat . I see no reason to abandon th is well-reasoned line of cases. The majority finds it simpl er to put words in my m outh and to attack those words than to addre ss my true argument. A straw man is always easier to knock down. In truth, no excl usive-control requirement can be read into my opinion. What is in this opinion is the recognition of a distin ction between interference and control. The majority pays no attention to this differen ce. In fact, it elevates

12interference to the same level as control. I find this inappropriate, logically and legally. Logically, turning a steering wh eel is not enough to operate a vehicle. 6 Legally, the Legislature decided to use the term “control” in MCL 257.35a and MCL 257.36. Therefo re, it is inappropriate for the majority to substitute “interference” for “control.”
C ONCLUSION The majority misinterprets the Court of Appeals deci sion. In doing so, it accuses the Court of Appeals of failing to adhere to the “plain language” of the

statute. Ante at 1. It makes the accusation de spite the fact that the Court of Appeals consulted a diction ary and properly applied its definitions to the facts of the case. This is but another example of when “plain language” in the ears of the majority has quite a different sound in th e ears of others, illustrating the fragility of the concept of plain language le gal analysis in the real world.

6 In yet another stretch of logic, the majority claims that my interpretation means that neither defendant nor the driver was an operator at the time defendant grabbed the steering wheel. Th is is simply not the case. The driver continued to have control over the vehicle. Alth ough her domination of the vehicle was interfered with, this does not mean her control ended. Under the majority’s argument, a driver who pur posefully removes his ha nds from the steering wheel and his feet from the pedals would no l onger be operating the vehicle. Therefore, such a person would not be gu ilty of felonious driving even if he intentionally did this to slam the vehicle in to a crowd of people. I find this illogical. When a person is in the position to have dominating command over a vehicle, the person is an operator. When someone interferes with that dominating command, as occurred in this case, he is not an operator. Courts in Michigan have consistently noted this distinction until no w. I believe that it is th e majority’s analysis that “strains credulity.”

13Defendant did not operate a motor vehicle. Instead , he interfered with the control of a motor vehicle. Therefore, th e district court properly refused to bind him over on a charge of felonious driving. MCL 257.626c. By reversing this decision, the majority has violated the fair notice protections of the Constitution. I would affirm the decision of the Court of Appeals. Marilyn Kelly

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