People of Michigan v. John Andrew Beemer ( 2014 )

Order Michigan Supreme Court
Lansing, Michigan
November 7, 2014 Robert P. Young, Jr.,
Chief Justice
149219 Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
PEOPLE OF THE STATE OF MICHIGAN, David F. Viviano,
Plaintiff-Appellee, Justices
v SC: 149219
COA: 313602
Saginaw CC: 11-036498-FH
JOHN ANDREW BEEMER,
Defendant-Appellant.
_____________________________________/
On order of the Court, the application for leave to appeal the March 11, 2014
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
MARKMAN, J. (dissenting). I respectfully dissent and would reverse. Defendant
struck another vehicle while intoxicated, and the occupant of the other vehicle suffered a
fracture to his wrist. On this basis, defendant was convicted of “operating while
intoxicated causing serious impairment of a body function of another person.” MCL
257.625(5). The Michigan Vehicle Code provides that “ ‘[s]erious impairment of a body
function’ includes” the “[l]oss of a limb or loss of use of a limb,” the “[l]oss of a foot,
hand, finger, or thumb or loss of use of a foot, hand, finger, or thumb,” the “[l]oss or
substantial impairment of a bodily function,” or a “skull fracture or other serious bone
fracture.” MCL 257.58c(a), (b), (d), and (h). The same term appears, and has been
defined, in the no-fault act. MCL 500.3135(5) (“ ‘[S]erious impairment of body
function’ means an objectively manifested impairment of an important body function that
affects the person’s general ability to lead his or her normal life.”).
Although “serious impairment of a body function” has not been defined in the
vehicle code in a manner exactly equivalent to the definition in the no-fault act, this Court
should nonetheless seek to interpret that term with some degree of consistency in its
separate contexts, at least to the point of making clear that the Legislature intended in
both places to communicate that an impairment must be of a particularly serious
character. Here, the victim missed a single day of work and was cleared to resume
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participating in ice hockey shortly after his cast was removed following three months of
intermittently wearing it. Moreover, medical testimony indicated that the victim retained
good strength, extension, and flexion in his fingers after the fracture and that the injury
was of the sort that heals well. I do not believe that the instant injury can reasonably be
characterized as involving the “serious impairment of a body function,” particularly in
light of interpretations that have been given to this term in the no-fault context. See, e.g.,
McCormick v Carrier, 487 Mich. 180 (2010), overruling Kreiner v Fischer, 471 Mich. 109
(2004). Defendant should be held to full account for his impaired driving and for the
injuries he caused, but in my judgment, his criminal conduct was not aggravated by the
infliction of a “serious impairment of a body function.”
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
November 7, 2014
h1104
Clerk