Leslie E. BuscherPAW PAW
-- Although Leslie Buscher was found in her car with a blood alcohol level exceeding 0.4 percent, drunken-driving charges against her were dismissed because her car was parked off the road, according to court documents.
A Van Buren County judge's decision turned on this point: Does the shoulder of CR 652 fit the definition of a roadway "ordinarily used for vehicular travel"?
Buscher, 37, a teacher for Portage Public Schools,
She was charged with operating a motor vehicle with a high blood-alcohol content, operating a motor vehicle while intoxicated with an occupant under 16 years old, and having an open intoxicant in a vehicle.
Van Buren County sheriff’s deputies said Buscher, who has worked in Portage schools since 1999, was slumped over the wheel of her 2005 Dodge Durango and had a cup of vodka and her two children inside the vehicle when they found her at about 3:30 p.m. that day.
In a written opinion filed last month, District Judge Richard Hentchel dismissed the charges. He agreed with Buscher's attorney that she could not be found guilty of driving while intoxicated, since she was not driving the car at the time and her car was off the roadway when she was found by deputy David Walker.
Hentchel acknowledged that there are some cases where a person can be arrested for drunken-driving even if the officer does not see them driving the vehicle. That includes cases in which a vehicle is parked or stopped on a roadway or if any part of the vehicle intrudes into the roadway.
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In this case, Buscher's car was parked on the paved shoulder of CR 652, based on photos taken by Walker.
Hentchel said that does not fit the definition of a roadway, which refers to "a portion of a highway improved, designed, or ordinarily used for vehicular travel." In his ruling, the judge said that the shoulder of the road "may, on occasion, be used as a go around, but that does not rise to the level of ordinary usage."
Hentchel's opinion also says that the law defining highway refers to the "entire width between the boundary lines of every highway publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel."
He said the boundary lines for Red Arrow Highway are the white lines marking the outer edges of the travel lanes.
"The defendant's vehicle is clearly outside of that line and therefore not on the highway," Hentchel ruled.
The Van Buren County prosecutor's office has appealed the judge's dismissal of charges against Buscher. The prosecutor disagrees with Hentchel's interpretation of what constitutes a roadway and contends that the definition of a roadway includes the paved shoulder.
That appeal is pending before Van Buren County Circuit Judge Paul Hamre.
Buscher is working as a special-education teacher consultant at Portage Northern High School and has co-teaching duties. School officials have said the dismissal of her case does not impact her teaching assignment.
Julie Mack can be reached at 269-350-0277 or at jmack1@mlive.com. Follow her on Twitter at twitter.com/kzjuliemack. Click here for all mlive.com posts by Julie Mack.