DocketNumber: Docket No. 288312
Citation Numbers: 291 Mich. App. 1
Judges: Hood, Owens, Whitbeck
Filed Date: 11/30/2010
Status: Precedential
Modified Date: 9/9/2022
Defendant, Michael Bulger, pleaded no contest to one count of operating a motor vehicle while intoxicated causing death
On April 19, 2007, Bulger drove a vehicle on North Avenue in Macomb Township while under the influence of alcohol, causing the death of Emilee Floer. On October 30, 2007, Bulger pleaded no contest to the charges of operating a motor vehicle while intoxicated causing death and operating while intoxicated, second offense.
The trial court determined, based on Bulger’s prior record and offense variable scores, that for the conviction of operating while intoxicated causing death, the sentencing guidelines called for a minimum sentence of 36 to 71 months. In scoring the sentencing guidelines, the trial court assessed two points under prior record variable (PRV) 5
II. SENTENCING
A. STANDARD OF REVIEW
Bulger argues that the trial court erred by denying his motion for resentencing. This Court reviews de novo the proper interpretation and application of Michigan’s legislative sentencing guidelines.
B. PRIOR CONVICTION
Bulger argues that his prior conviction of underage drinking and driving under the zero-tolerance provision does not constitute the type of prior conviction that may be counted against him in scoring under the sentencing guidelines. More specifically, he argues that the prior offense was not an offense for “operating a vehicle .. . while under the influence of or impaired by alcohol” because it merely required proof that there was alcohol in Bulger’s body, not that he was “under the influence” or “impaired.”
This is an issue of first impression. We conclude that the best reading of Michigan’s legislative sentencing guidelines, in conjunction with MCL 257.625, supports the prosecution’s argument that the trial court properly
The sentencing-guidelines statute regarding scoring PRV 5 calls for the trial court to
[c]ount all prior misdemeanor convictions and prior misdemeanor juvenile adjudications for operating or attempting to operate a vehicle, vessel, OKVJ snowmobile, aircraft, or locomotive while under the influence of or impaired by alcohol, a controlled substance, or a combination of alcohol and a controlled substance. Do not count a prior conviction used to enhance the sentencing offense to a felony.[6 ]
Therefore, the crucial question is whether Bulger’s conviction of being a minor who operated a vehicle while having any bodily alcohol content constituted a misdemeanor for operating a vehicle while “under the influence” of alcohol or “impaired by” alcohol.
Resolution of the issue requires this Court to interpret MCL 777.55. And, in doing so, we should ascertain and give effect to the Legislature’s intent.
It is true that Bulger’s prior conviction under the
However, when considering whether a prior violation of the zero-tolerance provision should be treated as a prior offense, the Legislature chose not to make such broad distinctions. MCL 257.625(9) requires heavier fines and increased jail time for offenders with one or more prior convictions, and multiple prior convictions raise operating while intoxicated to a felony. For the purposes of MCL 257.625, a “prior conviction” is defined as any violation of the subsections of MCL 257.625, except subsection (2), the crime of a car owner’s authorizing a person who is under the influence of alcohol to drive the owner’s vehicle.
Bulger also claims that several of his prior record and offense variable scores are unconstitutional under Blakely v Washington.
We affirm.
MCL 257.625(4)(a).
MCL 257.625(1) and (9)(b).
MCL 777.55.
MCL 257.625(6) provides:
A person who is less than 21 years of age, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person has any bodily alcohol content. As used in this subsection, “any bodily alcohol content” means either of the following:
(a) An alcohol content of 0.02 grams or more but less than 0.08 grams per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or, beginning October 1, 2013, the person has an alcohol content of 0.02 grams or more but less than 0.10 grams per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.
(b) Any presence of alcohol within a person’s body resulting from the consumption of alcoholic liquor, other than consumption of alcoholic liquor as a part of a generally recognized religious service or ceremony.
People v Morson, 471 Mich 248, 255; 685 NW2d 203 (2004).
MCL 777.55(2)(b).
People v Giovannini, 271 Mich App 409, 411; 722 NW2d 237 (2006).
Id.
People v Gillis, 474 Mich 105, 115; 712 NW2d 419 (2006).
People v Valentin, 457 Mich 1, 6; 577 NW2d 73 (1998).
Nowell v Titan Ins Co, 466 Mich 478, 483; 648 NW2d 157 (2002); People v Coffee, 151 Mich App 364, 369; 390 NW2d 721 (1986).
MCL 257.625(6).
MCL 257.625(16).
MCL 257.625(l)(b) and (6)(a).
MCL 257.625(25) (excluding MCL 257.625[2]).
MCL 257.625(26).
Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004).
People v Drohan, 475 Mich 140, 159; 715 NW2d 778 (2006).
MCL 777.55(2)03).
MCL 257.625(6).