People v. Yarema , 208 Mich. App. 54 ( 1994 )

Doctoroff, C.J.

Defendant was arrested and charged with operating a vehicle while under the influence of intoxicating liquor in violation of § 625 of the Vehicle Code, MCL 257.625; MSA 9.2325, on September 24, 1993. On October 7, 1993, the district court sent notice of arraignment, which was then scheduled for October 11, 1993. At a November 5, 1993, pretrial conference, defense counsel moved for dismissal for fáilure to arraign defendant within fourteen days or to hold the pretrial conference within thirty-five days as required by § 625b of the Vehicle Code, MCL 257.625b; MSA 9.2325(2).

That motion was denied, and a further motion to dismiss was made and rejected when the original trial date of November 24 was adjourned to December 15, 1993, beyond the seventy-seven-day time limit set forth in the statute. The case proceeded to trial, and defendant was convicted by a jury of the lesser included offense of driving while impaired, MCL 257.625(3); MSA 9.2325(3). His conviction was affirmed on appeal to the St. Clair Circuit Court, and the case comes to this Court by way of a delayed application for leave to appeal.

This Court denied the application in an order dated September 30, 1994. Defendant, through counsel, filed a motion for rehearing suggesting that the bar and the lower court bench need guidance regarding the question whether the time limits set forth in the statute are wholly meaningless. Believing that there is merit in that request, in lieu of granting or denying the motion for rehearing, we have elected, pursuant to MCR 7.205(D)(2), to resolve the issue by this peremptory opinion. People v Smith, 200 Mich App 237, 238-239; 504 NW2d 21 (1993).

In People v Smith, supra, this Court held that dismissal for violation of the statutory time limits could not be "with prejudice.” The Court was careful to avoid the question whether dismissal "without prejudice” was proper, which was not crucial to the proper decision of the issue then presented, as evidenced by the statement in the opinion that "the original dismissal may have been appropriate, but it could not have been 'with prejudice.’ ” Id. at 243. (Emphasis supplied.) The case at bar squarely presents the issue whether dismissal is mandatory.

As this Court held in Smith, supra, the fundamental rules of statutory construction generally preclude construction of a time limit for performance of an official duty as being mandatory, absent language that expressly precludes performance of such duty after the specified time has elapsed. Such statutes are normally construed as being "directory.” 3 Sutherland, Statutory Construction (5th ed), § 57.19, pp 47-48. Smith, supra at 241-242. In this context, the term "directory” means something less than the alternative of compliance or absolute dismissal.

In Smith, this Court drew an analogy to the twelve-day time limit for conducting preliminary examinations in felony cases, MCL 766.4; MSA 28.922. The Supreme Court, likewise, has construed that statute as being directory only, meaning that, on timely motion, the charges may be dismissed, but without prejudice, except when the constitutional right to a speedy trial has otherwise also been violated. People v Weston, 413 Mich 371, 372; 319 NW2d 537 (1982).

We think that Michigan’s developed jurisprudence regarding the twelve-day time limit for preliminary examinations applies by analogy to the fourteen-, thirty-five, and seventy-seven-day time limit in the drunk driving statute for an arraignment, pretrial conference, and trial, respectively. This means that, not only must there be a timely motion to dismiss on the basis of a violation of the statutory time limit, with any resulting dismissal being without prejudice to the reinstitution of charges, People v Smith, supra, but, if the trial court denies the motion for dismissal, the issue properly can be preserved only by pursuing an interlocutory appeal. Appeal after judgment, i.e., after trial, conviction, and sentence, precludes reliance on such issues. People v Crawford, 429 Mich 151; 414 NW2d 360 (1987).

The case at bar is therefore directly controlled by the reasoning in Crawford. Defendant timely raised the issue, but failed to pursue it by interlocutory appeal when the district court denied his motions to dismiss. This appeal having arisen after the judgment of conviction and sentence, the issue, being nonsubstantive in nature, is not cognizable. Accordingly, no other issue being presented, defendant’s conviction is affirmed.

Affirmed.

Taylor, J., concurred.