9.7OWI or OWVI Causing Death—Section 625(4)

A.Statutory Authority

“A person, whether licensed or not, who operates a motor vehicle in violation of [MCL 257.625(1), MCL 257.625(3), or MCL 257.625(8)] and by the operation of that motor vehicle causes the death of another person is guilty of a crime[.]” MCL 257.625(4).¹

B.Relevant Jury Instructions

•M Crim JI 15.11 addresses operating while intoxicated and operating while visibly impaired causing death.

•M Crim JI 15.11a addresses operating with any amount of a schedule 1 or 2 controlled substance in the body causing death.

C.Penalties

The penalties for violating MCL 257.625(4) are as follows:

“(a) Except as provided in subdivisions (b) and (c), the person is guilty of a felony punishable by imprisonment for not more than 15 years or a fine not less than $2,500.00 or more than $10,000.00, or both[.]

(b) If the violation occurs while the person has an alcohol content of 0.17 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, and within 7 years of a prior conviction, the person is guilty of a felony punishable by imprisonment for not more than 20 years or a fine of not less than $2,500.00 or more than $10,000.00, or both . . .

(c) If, at the time of the violation, the person is operating a motor vehicle in a manner proscribed under [MCL 257.653a²] and causes the death of a police officer, firefighter, or other emergency response personnel, the person is guilty of a felony punishable by imprisonment for not more than 20 years or a fine of not less than $2,500.00 or more than $10,000.00 or both. This subdivision applies regardless of whether the person is charged with the violation of [MCL 257.653a].” MCL 257.625(4).

“A person may be charged with and convicted of any of the [offenses listed in MCL 769.36(1), including MCL 257.625(4),] for each death arising out of the same criminal transaction, and the court may order the terms of imprisonment to be served consecutively to each other[.]” MCL 769.36(1)(a).

D.Sanctions

Only applicable sanctions are listed below; accordingly, if a particular sanction is omitted from this section, it is not applicable to this offense. The Offense Code Index for Traffic Violations published by the secretary of state and sourced from the Michigan Department of State Court Manual includes a table detailing traffic offenses and applicable sanctions. See Section 1.41 for more information on abstracting procedures.

•Six points. See MCL 257.320a(1)(c). See Section 1.42 for more information on points.

•License revocation/denial (length dependent on specific conviction and criminal history). See MCL 257.303(2)(d); MCL 257.303(4)(a). See Section 1.45 for more information on license suspension and Section 1.44 for more information on license revocation.

•Vehicle immobilization (length dependent on specific conviction and criminal history), if forfeiture is not ordered. See MCL 257.625(4); MCL 257.904d(1). See Section 1.47 for more information on vehicle immobilization.

•No prior convictions: mandatory immobilization for not more than 180 days, unless forfeiture is ordered under MCL 257.625n. See MCL 257.625(4); MCL 257.904d(1)(b).

•Conviction under MCL 257.625(4) within seven years after a prior conviction: mandatory immobilization for not less than 90 days or more than 180 days, unless forfeiture is ordered under MCL 257.625n. See MCL 257.625(4); MCL 257.904d(1)(c).

•Conviction under MCL 257.625(4) after two or more prior convictions: mandatory immobilization for not less than one year or more than three years, unless forfeiture is ordered under MCL 257.625n. See MCL 257.625(4); MCL 257.904d(1)(d).

•Vehicle forfeiture may be imposed for a violation of MCL 257.625(4). See MCL 257.625(4); MCL 257.625n. See Section 1.49 for more information on vehicle forfeiture.

•Registration denial is required under certain circumstances. See MCL 257.219(1)(c)-(d). See Section 1.50 for more information on registration denial.

E.Issues³

1.Elements of Section 625(4)

“The plain text of [MCL 257.625(4)] does not require that the prosecution prove the defendant’s intoxicated state affected his or her operation of the motor vehicle.” People v Schaefer, 473 Mich 418, 422 (2005), overruling People v Lardie, 452 Mich 231 (1996), “to the extent that Lardie held that [MCL 257.625(4)] requires the defendant’s intoxicated driving to be a substantial cause of the victim’s death[.]” “Indeed, [MCL 257.625(4)] requires no causal link at all between the defendant’s intoxication and the victim’s death.” Schaefer, 473 Mich at 422. “The statute requires that the defendant’s operation of the motor vehicle, not the defendant’s intoxicated manner of driving, must cause the victim’s death.” Id. “The defendant’s status as ‘intoxicated’ is a separate element of the offense of OUIL causing death.” Schaefer, 473 Mich at 422. “It specifies the class of persons subject to liability under [MCL 257.625(4)]: intoxicated drivers.” Schaefer, 473 Mich at 422. “Quite simply, by enacting [MCL 257.625(4)], the Legislature intended to punish ‘operating while intoxicated,’ not ‘operating in an intoxicated manner.’” Schaefer, 473 Mich at 422.

While MCL 257.625(4) does not require a defendant’s intoxicated driving to be a substantial cause of the victim’s death, Schaefer, 473 Mich at 422, “[t]he plain language of the statutes that prohibit OWI causing death, MCL 257.625(1) and [MCL 257.625(4)], and the statutes that prohibit operating a motor vehicle with the presence of a schedule 1 controlled substance in one’s body, causing death, MCL 257.625(4) and [MCL 257.625(8)], requires that the defendant’s operation of a motor vehicle have caused the death of another person.” People v Feezel, 486 Mich 184, 193 (2010). “[W]hile the victim’s intoxication is not a defense, under the facts of [Feezel] it should have been a factor for the jury to consider when determining whether the prosecution proved beyond a reasonable doubt that [the] defendant’s conduct was a . . . proximate cause of the victim’s death, under MCL 257.625(4) and [MCL 257.625(8)].” Feezel, 486 Mich at 201-202. But see People v Bergman, 312 Mich App 471, 486 (2015) (holding that evidence of the victim’s intoxication was not probative of causation and was properly excluded from trial where “[t]here was no evidence that [the victim] was not properly driving within his marked lane, or that [the victim’s] vehicle would not have safely passed [the] defendant if [the] defendant had not crossed the center line in front of [the victim], presenting a serious and unexpected hazard[;] [t]hus, there was no evidence that [the victim] did anything that contributed to the accident in a way that would establish that he was negligent or grossly negligent and by his conduct was an intervening cause of the accident[]”).

“[MCL 257.625(4)] provides that a defendant may be convicted when he or she ‘operates a motor vehicle’ while intoxicated and ‘by the operation of that motor vehicle causes the death of another person . . . .’” People v Lechleitner, 291 Mich App 56, 60 (2010). “[MCL 257.625(4)] does not require that the defendant’s vehicle be in motion at the time of the accident, but rather that the victim’s death be caused by the defendant’s operation of the vehicle while intoxicated.” Lechleitner, 291 Mich App at 60. In Lechleitner, 291 Mich App at 60, the “defendant was intoxicated, operated his vehicle, and crashed it, with the result that it sat in the middle of the freeway at night creating a risk of injury or death to others.” The Michigan Supreme Court has “stated that ‘operating’ must be defined ‘in terms of the danger the OUIL statute [MCL 257.625] seeks to prevent: the collision of a vehicle being operated by a person under the influence of intoxicating liquor with other persons or property.’” Lechleitner, 291 Mich App at 60, quoting People v Wood, 450 Mich 399, 404 (1995). “Accordingly, ‘[o]nce a person using a motor vehicle as a motor vehicle has put the vehicle in motion, or in a position posing a significant risk of causing a collision, such a person continues to operate it until the vehicle is returned to a position posing no such risk.’” Lechleitner, 291 Mich App at 60, quoting Wood, 450 Mich at 404-405. In Lechleitner, the Court of Appeals affirmed the defendant’s conviction, “conclud[ing] that Wood remains good law and that the trial court properly followed it[.]” Lechleitner, 291 Mich App at 61.

2.Double Jeopardy⁴

Involuntary manslaughter, MCL 750.321. “The offenses of involuntary manslaughter and OUIL causing death protect distinct societal norms, the amount of punishment for each statute does not involve a hierarchy of offenses, and each statute requires proof of an element that the other does not. Thus, pursuant to [People v Price, 214 Mich App 538 (1995)], [the] defendant’s convictions and punishments under both statutes [did] not violate the Double Jeopardy Clauses of the United States and Michigan Constitutions.” People v Kulpinski, 243 Mich App 8, 23 (2000).

Second-degree murder, MCL 750.317.“Th[e] reasoning [in Kulpinski] applies with equal force to dual convictions of second-degree murder and OUIL causing death. If the Legislature intended for the OUIL causing death statute to enforce societal norms that are distinct from the societal norms enforced by the involuntary manslaughter statute (grossly negligent conduct), it clearly also intended the OUIL statute to enforce societal norms other than those enforced by the second-degree murder statute (proscribing wanton conduct likely to cause death or great bodily harm).” People v Werner, 254 Mich App 528, 536 (2002), citing Kulpinski, 243 Mich App at 22-24 and Price, 214 Mich App at 543-544. “Moreover, the OUIL causing death statute and second-degree murder statute each contain an element not found in the other.” Werner, 254 Mich App at 536. “The OUIL causing death statute includes the element of operating a motor vehicle with a specified blood alcohol level, but not the element of malice; the converse is true of the second-degree murder statute.” Id. “Accordingly, [the] defendant’s convictions of both second-degree murder and OUIL causing death [did] not violate the Double Jeopardy Clauses.” Id. See also People v Bergman, 312 Mich App 471, 492 (2015) (holding the defendant’s multiple convictions of OUIL causing death and second-degree murder did not violate the double jeopardy clauses).

Operating with a suspended license causing death, MCL 257.904(4). A defendant’s multiple convictions of OUIL causing death and driving with a suspended license causing death do not violate the double jeopardy clauses of the United States and Michigan constitutions. People v Bergman, 312 Mich App 471, 492 (2015). “[T]he OUIL and suspended-license statutes enforce distinct societal norms, and their respective elements of intoxication while driving and lack of a valid operator’s license are distinctive to each.” Id. at 492 (citations omitted).