2.32OV 19—Threat to the Security of a Penal Institution or Court or Interference with the Administration of Justice or the Rendering of Emergency Services

A.Scoring

OV 19 is scored for all felony offenses to which the statutory sentencing guidelines apply. MCL 777.22.

Step 1: Determine which statements addressed by OV 19 apply to the sentencing offense. MCL 777.49(1).

Step 2: Assign the point value indicated by the applicable statement having the highest number of points. MCL 777.49(1).

B.Issues

In addition to the following discussion of issues, see the Michigan Judicial Institute’s table summarizing OV 19 scoring circumstances caselaw.

1.Application of McGraw Rule

“Offense variables must be scored giving consideration to the sentencing offense alone, unless otherwise provided in the particular variable.” People v McGraw, 484 Mich 120, 133 (2009).

“OV 19 may be scored for conduct that occurred after the sentencing offense was completed.” People v Smith, 488 Mich 193, 202 (2010). “Because the circumstances described in OV 19 expressly include events occurring after a felony has been completed, the offense variable provides for the ‘consideration of conduct after completion of the sentencing offense.’” Id., quoting People v McGraw, 484 Mich 120, 133-134 (2009).

In Smith, the defendant was convicted of manslaughter, reckless driving, and witness intimidation. Smith, 488 Mich at 197. A few days after the car accident in which the victim was killed, the defendant contacted one of the passengers in the defendant’s vehicle at the time of the accident and told her not to talk to anyone about what happened and made additional threatening statements. Id. at 196. At sentencing, defense counsel argued that the “defendant’s witness intimidation conviction precluded the scoring of OV 19 for the manslaughter conviction.” Id. at 197. The Court of Appeals agreed and held that the defendant should have been scored zero points for OV 19, based on the rule set out in McGraw, 484 Mich 120, that “offense variables may not be scored for conduct that occurred after the completion of the sentencing offense unless provided for in the particular variable[.]” Smith, 488 Mich at 197-198.

The Supreme Court reversed, noting that “[t]he aggravating factors considered in OV 19 contemplate events that almost always occur after the charged offense has been completed,” and that “[t]he express consideration of these events explicitly indicates that postoffense conduct may be considered when scoring OV 19.” Smith, 488 Mich at 200. Accordingly, “OV 19 may be scored for conduct that occurred after the sentencing offense was completed.” Id. at 195, 202 (noting that McGraw provided an exception to the general rule, holding that only the sentencing offense may be considered when scoring the OVs, “unless otherwise provided in the particular variable.”) (quotation marks and citation omitted).

See Section 2.13(A) for a general discussion of the McGraw rule.

2.Meaning of Interfere With the Administration of Justice

“[T]he plain and ordinary meaning of ‘interfere with the administration of justice’ for purposes of OV 19 is to oppose so as to hamper, hinder, or obstruct the act or process of administering judgment of individuals or causes by judicial process.” People v Hershey, 303 Mich App 330, 343 (2013). “It ‘encompasses more than just the actual judicial process’ and can include ‘[c]onduct that occurs before criminal charges are filed,’ acts that constitute obstruction of justice, and acts that do not ‘necessarily rise to the level of a chargeable offense[.]’” Id., quoting People v Barbee, 470 Mich 283, 286-288 (2004) (first alteration in original).

Interference with the administration of justice is “something more than a suspect’s denial of culpability.” People v Deweerd, 511 Mich 979, 980 (2023). Specifically, the Court in Deweerd gave the following examples from caselaw of actions that rose to the level of interference with the administration of justice:

•“actions that actively redirect the investigation”;

•“that attempt to or successfully conceal evidence from law enforcement”;

•“that attempt to or successfully prevent witnesses from testifying or providing evidence”; and

•“that attempt to or successfully prevent law enforcement from being able to arrest the defendant[.]” Id (citations omitted).

See also People v Muniz, 343 Mich App 437, 455-456 (2022) (holding that while defendants “have an absolute right to maintain their innocence, and a trial court may not base any part of a defendant’s sentence on a refusal to admit guilt,” when statements go “beyond denying the allegations by misleading the police,” and are made with the intent to “deceive law enforcement during the investigation” it is permissible to assess points under OV 19).

“OV 19 is generally scored for conduct that constitutes an attempt to avoid being caught and held accountable for the sentencing offense.” People v Baskerville, 333 Mich App 276, 301-302 (2020) (holding the facts provided a reasonable basis to conclude that the defendant interfered in the administration of justice when he attempted to conceal or dispose of the victim’s body by moving it, moved the victim’s vehicle, got rid of a gun used in the murder, and encouraged the other person involved to tell the police she did not know anything about the incident) (quotation marks and citation omitted).

In contrast, “a defendant’s denial of culpability—without more—does not slow or prevent a criminal investigation or constitute an effort to do so.” Deweerd, 511 Mich at 980. Further, “while an admission of guilt may expedite a criminal investigation, OV 19 does not contemplate the failure to facilitate a criminal investigation, only the interference or attempted interference with one.” Id. at 980-981 (further noting that any “increased punishment imposed because of [a] defendant’s denial of culpability also raises constitutional concerns regarding the defendant’s right to maintain his innocence, for which the defendant cannot be penalized”). See also People v Teike, ___ Mich App ___, ___ (2023) (defendant’s refusal of a chemical test was expressly permitted by MCL 257.625a and MCL 257.625c, and thus, consistent with the administration of justice under the statutes; “[t]o hold otherwise would implicate constitutional concerns regarding warrantless searches, and would engraft an additional consequence onto MCL 257.625a that the Legislature did not see fit to provide”).¹

If a trial court finds that a “defendant ‘otherwise interfered with or attempted to interfere with the administration of justice, or directly or indirectly violated a personal protection order,’” assessing 10 points for OV 19 is proper. People v Dingee, ___ Mich App ___, ___ (2025), quoting MCL 777.49(c). “A person interferes with the administration of justice if he or she does anything to ‘hamper, hinder, or obstruct the act or process of administering judgment of individuals or causes by judicial process.’” Dingee, ___ Mich App at ___, quoting People v Hershey, 303 Mich App 330, 343 (2013). “OV 19 does not require actual interference—the trial court must assign 10 points under that variable if the offender ‘interfered with or attempted to interfere with the administration of justice.’” Dingee, ___ Mich App at ___, quoting MCL 777.49(c). In this case, “[t]he evidence presented at trial permitted an inference that defendant waged her social media campaign against the victim to undermine the victim’s credibility and prevent anyone from acting on the victim’s allegations.” Dingee, ___ Mich App at ___. In fact, “[d]efendant specifically stated that she wanted the victim to tell police officers that she lied when she claimed that [defendant’s son] sexually assaulted her.” Id. at ___.   “There was ample record evidence to support that the purpose of defendant’s social media posts was to intimidate the victim and deter her from pursuing her claim that [defendant’s son] assaulted her.” Id. at ___.   Therefore, “the trial court did not clearly err when it found that defendant attempted to interfere with the administration of justice.” Id. at ___. 

3.Conduct Before Criminal Charges

A defendant’s conduct before criminal charges are filed against him or her may form the basis of interfering or attempting to interfere with the administration of justice as contemplated by OV 19; the conduct constituting interference with the administration of justice under OV 19 includes giving a police officer a false name when asked for identification. People v Barbee, 470 Mich 283, 284-285, 288 (2004) (the defendant gave a false name to a police officer who had pulled over the defendant’s car for crossing the fog line).²

The Court held that “the phrase ‘interfered with or attempted to interfere with the administration of justice’ encompasses more than just the actual judicial process.” Barbee, 470 Mich at 287-288. The Court explained:

“While ‘interfered with or attempted to interfere with the administration of justice’ is a broad phrase that can include acts that constitute ‘obstruction of justice,’ it is not limited to only those acts that constitute ‘obstruction of justice.’

* * *

“The investigation of crime is critical to the administration of justice. Providing a false name to the police constitutes interference with the administration of justice, and OV 19 may be scored, when applicable, for this conduct.” Barbee, 470 Mich at 286, 288.

However, a court may not score 10 points under OV 19 based solely on the fact that a defendant lied to medical services personnel. People v Portellos, 298 Mich App 431, 449-452 (2012) (holding that “[t]he trial court correctly determined that it should not assign 10 points for OV 19 for lying to medical services personnel” about the circumstances surrounding the birth and death of her infant, because “MCL 777.49(c) does not contain any reference to otherwise interfering with emergency services”), overruled in part on other grounds by People v Calloway, 500 Mich 180, 188 (2017).³

“Fleeing from the police can easily become ‘interference with the administration of justice’ particularly where . . . there was an effective command for the vehicle to stop, in the form of the police activating their lights and sirens.” People v Ratcliff, 299 Mich App 625, 632-633 (2013) (holding court properly scored 10 points for OV 19 where police officers approached the stolen vehicle in which the defendant was a passenger and ordered the occupants to “‘[f]reeze,’” but the defendant, after a vehicle chase, “instead fled on foot after the vehicle came to a stop”), vacated in part on other grounds 495 Mich 876 (2013).⁴ See also People v Hershey, 303 Mich App 330, 344 (2013) (citing Ratcliff, noting it was vacated in part on other grounds, and noting that “fleeing from police contrary to an order to freeze” has been held “to constitute an interference or attempted interference with the administration of justice”); People v Smith, 318 Mich App 281, 286 (2016) (“Hiding from the police constituted an interference with the administration of justice because it was done for the purpose of hindering or hampering the police investigation.”).

A defendant’s refusal to submit to a blood draw upon police request does not constitute interference or attempted interference with the administration of justice. People v Teike, ___ Mich App ___, ___ (2023). In this case, the defendant was arrested for operating while intoxicated—he refused to submit to a blood draw and the police obtained a warrant for the test which ultimately revealed numerous controlled substances in his bloodstream. Id. at ___. “MCL 257.625a^[5] contemplates that an arrestee may refuse to submit to a chemical test, and in that event it provides both for alternative means for a police officer to secure the test (a court order) and consequences for the arrestee (suspension of license and driving privileges and the addition of driver record points).” Teike, ___ Mich App at ___. “[B]ecause MCL 257.625a permits an arrestee to make a choice and requires that he be informed of his right to make it, his exercise of that right cannot be found to have hampered, hindered, or obstructed the act or process of administering judgment for purposes of assessing points for OV 19.” Teike, ___ Mich App at ___. “The record does not show that defendant hampered, or attempted to hamper, police officers in obtaining a court order to draw and test his blood; he simply refused to consent to such a test, as was his right under the law (with attendant consequences).” Id. at ___ (holding zero points should be assessed under OV 19).

4.Conduct That Threatened the Security of a Penal Institution or Court

“A 25-point score under OV 19 requires the trial court to find by a preponderance of the evidence that the defendant ‘by his or her conduct threatened the security of a penal institution or court.’” People v Dixon, 509 Mich 170, 177 (2022), quoting MCL 777.49. “To satisfy this standard, a court must find (1) that the defendant engaged in some conduct and (2) that conduct threatened the security of the prison.” Id. at 177. For example, “possession alone, even constructive possession, could be ‘conduct’ for purposes of scoring OV 19,” and “possession might be ‘conduct that threatens the security of a penal institution’ depending on the item possessed.” Id. at 179 (cleaned up). However, “mere possession of any object that hypothetically could pose a threat with some creativity” does not satisfy OV 19’s requirement that the conduct threaten the security of the prison; there must be facts to establish that the possession actually threatened the security of the institution. Id. at 181.

The trial court properly scored 25 points for OV 19 where the defendant smuggled heroin into a prison and delivered it to a prisoner. People v Dickinson, 321 Mich App 1, 24 (2017). The “delivery of an unquestionably dangerous drug like heroin into the confines of the prison threatened the safety and security of both the guards and the prisoners and, therefore, threatened the security of a penal institution.” Id. at 23-24 (noting that “MCL 777.49 by its language does not limit the scoring of 25 points for OV 19 only to offenders who smuggled weapons or other mechanical destructive devices into a prison”).

The trial court properly scored 25 points for OV 19 where the defendant, while in jail awaiting sentencing, attempted to smuggle drugs into the jail and assaulted another inmate who had informed the authorities of his conduct. People v Carpenter, 322 Mich App 523, 530-531 (2018) (noting that “OV 19 explicitly contemplates postoffense conduct” and rejecting “defendant’s argument that his smuggling of controlled substances and assault of an inmate [did] not sufficiently relate to the underlying sentencing offense of armed robbery to justify the trial court’s reference to those events when calculating defendant’s OV 19 score”). “The smuggling of controlled substances into a jail is certainly a threat to the security of a penal institution because of the dangers of controlled substances to the users and those around them”; furthermore, “even if a fight between inmates might be found insufficiently related to the security of the penal institution at large, defendant’s retaliatory attack on an inmate who he believed had informed on him definitely threatened the security of the jail by causing disruption within the jail and by potentially discouraging other inmates from coming forward about security breaches they might witness.” Id. at 531.

The trial court erred by scoring 25 points for OV 19 where the defendant constructively possessed a cell phone and a charger in a prison, but there was no evidence that the defendant “used the phone or that it was operational.” Dixon, 509 Mich at 181. The Court held that the fact that “cell phones can be used in threatening ways, particularly in prisons,” does not satisfy the threat requirement in OV 19; “unlike possession of a weapon, the nature of the cell phone possession is important to determining whether it ‘threatened the security of a penal institution’ because cell phones have many nonthreatening uses.” Id. at 180, 181, 182 (noting that in some cases “prisoner cell phone possession surely meets [the standard in OV 19],” but there must be “facts establish[ing] that the defendant’s conduct, in fact, threatened the security of the institution”).

The Dixon Court observed that the decisions in Dickinson and Carpenter “focused on the defendants’ conduct beyond the drug possession—drug smuggling and assault—to justify a 25-point score.” Accordingly, the Dixon Court concluded that the decisions in Dickinson and Carpenter were not relevant to analyzing the defendant’s conduct under OV 19 “where the only evidence was that [he] was near a cell phone[.]” Dixon, 509 Mich at 180.

“The trial court erred by assessing 25 points for OV 19 because . . . there was no evidence that [defendant] possessed the controlled substances inside the penal facility, or otherwise engaged in conduct that threatened the security of a penal institution.” People v Hines, ___ Mich App ___, ___ (2025). MCL 777.49(a) provides that “[a] trial court may properly assess 25 points for OV 19 when [t]he offender by his or her conduct threatened the security of a penal institution or court.” Hines, ___ Mich App at ___ (quotation marks omitted; second alteration in original). A court must find “that the defendant engaged in some conduct and . . . that conduct threatened the security of the prison.” Id. at ___. In this case, defendant was arrested and eventually transported to county jail. Id. at ___. “During the search at the jail, a corrections officer located controlled substances and other contraband in [defendant’s] inner groin area.” Id. at ___ (quotation marks omitted). “[Defendant] was convicted on each count submitted to the jury: one count of possession with intent to deliver methamphetamine, one count of possession with intent to deliver less than 50 grams of fentanyl, and one count of possession with intent to deliver imitation controlled substances.” Id. at ___. During sentencing, “[t]he prosecution argued that scoring 25 points for OV 19 was appropriate because police searched [defendant] earlier, asked him multiple times if he possessed any contraband, and advised that he could face an additional charge if he tried to bring contraband into the jail.” Id. at ___. “The trial court agreed with the prosecution and scored 25 points for OV 19 over defense counsel’s objection.” Id. at ___. The Hines Court examined “whether mere possession of controlled substances during intake at a penal institution (as opposed to possession inside an institution) satisfies [the] enhancement under OV 19.” Id. at ___. “Here, there was no finding that [defendant] possessed the drugs inside the penal institution or attempted to bring them inside.” Id. at ___. Additionally, “there was no evidence that [defendant] possessed or attempted to possess controlled substances inside the jail, as opposed to being caught with drugs and not providing a self-incriminating statement when the police did not initially find them. Id. at ___. Defendant “possessed the drugs at intake, but police found them before he was incarcerated.” Id. at ___. “To affirm the scoring of OV 19 . . . would essentially amount to requiring a defendant caught with drugs to either accept a sentencing enhancement or give up their rights against self-incrimination.” Id. at ___. “The simpler solution is to apply the enhancement as written: did [defendant] through his conduct threaten a penal institution.” Id. at ___. The Court remanded the matter to “the trial court to make findings on this issue and determine whether OV 19 actually applie[d].” Id. at ___. “If the evidence is only that [defendant] incidentally possessed drugs at the time of his arrest and there [was] not a preponderance of the evidence of his possession or attempted possession inside the facility, then OV 19 does not apply.” Id. at ___.

5.Threatening Conduct/Words

The trial court properly scored 10 points or OV 19 where the defendant told the rape victim, during the kidnapping, that he knew who she was and that “his ‘boys’ had been watching her,” and “required the victim to promise not to contact the police as a condition of releasing her.” People v McDonald, 293 Mich App 292, 299-300 (2011) (further noting that “the trial court properly considered testimony from the preliminary examination at sentencing”).

A defendant’s conduct is properly scored under OV 19 where the defendant threatens to kill a victim of the crime committed. People v Endres, 269 Mich App 414, 420-421 (2006).⁶ Without regard to a defendant’s intention when the threat was issued, fifteen points are appropriate because the “threats resulted in the interference with the administration of justice, either by preventing the victim from coming forward sooner or affecting his testimony against defendant.” Id. at 422.

The trial court properly scored OV 19 at 10 points where the defendant “told his victims not to disclose his acts or he would go to jail.” People v Steele, 283 Mich App 472, 492 (2009). The defendant argued his statement was “an obvious fact,” and therefore not a threat interfering with the administration of justice; the Court disagreed, holding that the “[d]efendant’s admonitions to his victims [that he would go to jail if they disclosed his acts of sexual assault] were a clear and obvious attempt by him to diminish his victims’ willingness and ability to obtain justice.” Id. at 492-493.

6.Resisting Apprehension

The trial court properly scored OV 19 at 15 points where the defendant, in the course of robbing a retail store, “vigorously resisted and threatened” the store’s loss prevention officer and other store employees. People v Passage, 277 Mich App 175, 181 (2007) (noting defendant’s threat to the officer that he better not see the officer outside of the store was an implicit threat to use physical force and “could have dissuaded the officer from testifying against defendant”). According to the Court, interference with store employees in their efforts to prevent the defendant from leaving the premises with unpaid merchandise constituted “interference with the administration of justice” because MCL 764.16(d) authorizes a private citizen to make an arrest if the citizen is an employee of a merchant and has reasonable cause to believe that the person arrested committed a larceny in that store. Passage, 277 Mich App at 180-181. Additionally, the language in MCL 777.49(b) refers only to using force or threatening force against another “person”; the statute does not require that the use or threat of force be directed against police officers. Passage, 277 Mich App at 181.

The trial court properly scored OV 19 at 10 points on the basis of “defendant’s attempt to avoid getting caught” where after completion of the sentencing offenses, defendant ran to a vehicle, looked at the police while outside the vehicle, got inside the vehicle, and when “[t]he police gave defendant loud verbal commands to freeze,” the defendant “was still fumbling inside the vehicle as if trying to get it to start as the police surrounded him.” People v Montague, 338 Mich App 29, 59 (2021).

7.Perjury

Absent any statutory language indicating otherwise, OV 19 applies to convictions, such as perjury, that necessarily involve interference with the administration of justice. People v Underwood, 278 Mich App 334, 339-340 (2008) (the sentencing offense was perjury committed in a court proceeding). The Legislature did not expressly prohibit scoring OV 19 for the crime of perjury, and because perjury is a public trust offense for which OV 19 must be scored, the trial court erred in refusing to do so. Id. at 338-339.

8.Concealing or Destroying a Weapon

Evidence of the defendant’s “attempt to hide or dispose of the weapon [that he used to stab the victim] in conjunction with his encouragement of others to lie about where he was at the time of the stabbing was a multifaceted attempt to create a false alibi and mislead the police,” and this conduct supported the trial court’s assessment of 10 points for OV 19. People v Ericksen, 288 Mich App 192, 204 (2010). See also People v McKewen, 326 Mich App 342, 358 (2018) (holding “the trial court did not err when it assessed 10 points for OV 19” where there was evidence that the defendant disposed of the weapon he used to stab the victim as well as “the clothing he was observed wearing during the attack”⁷).

9.Failure to Pay Court-Ordered Child Support

The “defendant’s failure to comply with [his] court-ordered [child support] obligation” did not “constitute interference with the administration of justice under OV 19.” People v Hershey, 303 Mich App 330, 342, 345 (2013) (holding that because “defendant’s failure to pay child support occurred after the circuit court ordered [him] responsible for child support,” the defendant “did not hamper, hinder, or obstruct the act or process of the circuit court’s administering judgment” in the divorce and child-support case).

10.Parole/Probation Violations

The “defendant did not interfere with the administration of justice by violating the terms of his probation.” People v Hershey, 303 Mich App 330, 345 (2013). “When defendant violated the terms of his probation, the trial court had already entered the . . . judgment of sentence, and the court’s probation order was already effective.” Id. “Thus, although defendant violated the trial court’s probation order, he did not hinder the process or act of the trial court administering judgment in [that case].” Id. at 345-346 (noting “there is no caselaw indicating that an offender’s probation violation itself (as compared to the underlying conduct) constitutes interference with the administration of justice under OV 19”).

The mere fact that a defendant “was contemporaneously in violation of his parole” at the time of the commission of the sentencing offense does not justify a score of 10 points for OV 19. People v Sours, 315 Mich App 346, 348, 350 (2016). “The fact that [the defendant] was also violating his parole had no effect on the process of investigating, trying, and convicting him for the methamphetamine offense; therefore, OV 19 should have been scored at zero points.” Id. at 350 (noting that “defendant was arrested immediately after being discovered with methamphetamine,” and his “failure to report to his parole agent before committing a new felony . . . did not hinder the process of administering judgment for the sentencing offense”).

11.Force or Threat of Force Against Property

“[T]he trial court did not err in assessing 15 points for OV 19” where the defendant fled from police on foot after committing retail fraud and broke into a camper parked in a nearby yard for the purpose of hiding from the police. People v Smith, 318 Mich App 281, 288 (2016). “Although [the defendant] did not threaten a victim’s property or physically destroy the camper in which he hid, he committed the crime of breaking and entering a structure with the intent to commit a felony [(resisting or obstructing a police officer)] when he entered the camper,” and when he “broke into the camper, he exerted force against the property of another by opening the door.” Id. at 288, 288 n 2.

12.Claim of Lockridge Error

Where the defendant, “while pleading guilty, . . . admitted that he ran from the police after stealing property . . . and that he broke into [a] camper in order to hide from the police[,] . . . the facts necessary to support a score of 15 points [for OV 19] were admitted by [the defendant], and his sentence was not constrained by improper judicial fact-finding in violation of the Sixth Amendment” under People v Lockridge, 498 Mich 358, 373 (2015). People v Smith, 318 Mich App 281, 289 (2016), citing People v Garnes, 316 Mich App 339, 344 (2016).⁸ See also Section 2.12(B)(4) for a discussion of judicial fact-finding after Lockridge.