People of Michigan v. Akash L Shah, 330752

Background

On July 6, 2013, defendant Shah was found asleep in the driver’s seat of his running, parked car on the side of the road after leaving a bar; he later testified he had driven and that he had consumed 3–4 beers that evening.
Officer Manar awakened Shah, detected an odor of intoxicants, observed confusion and fumbling with ID, and administered field sobriety tests (HGN, walk-and-turn, one-leg stand, alphabet/counting) that Shah performed poorly on.
Shah was arrested, a warrant was obtained, and a blood test showed a BAC of 0.23 g/100 ml; defense expert disputed the sample’s reliability (possible post-collection fermentation).
Shah was charged under MCL 257.625(1) (OWI). At trial, the court instructed the jury on both OWI and the necessarily included lesser offense, OWVI (MCL 257.625(3)); the jury convicted Shah of OWVI.
Shah moved for directed verdict/JNOV/new trial; trial court denied relief. On appeal he challenged (1) the propriety of the OWVI instruction as a necessarily included lesser offense, (2) notice of the lesser charge, and (3) sufficiency of the evidence. The Court of Appeals affirmed but remanded to correct an administrative error in the judgment of sentence (wrong statutory subsection listed).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether OWVI is a necessarily included lesser offense of OWI	OWVI is statutorily and doctrinally a lesser offense of OWI; instruction appropriate	OWVI is not necessarily included and jury should not have been instructed	Held: OWVI is a necessarily included lesser offense of OWI; instruction proper
Whether defendant lacked notice of OWVI charge	A defendant charged with OWI is on notice of necessarily included lesser offenses	Defendant contends he lacked notice because prosecution did not submit owvi instruction pretrial	Held: No error; defendant had notice because OWVI is necessarily included and prosecution requested instruction
Sufficiency of evidence to support OWVI conviction	Circumstantial evidence (car running, asleep in driver’s seat, field sobriety failures, BAC 0.23, admission of drinking, defendant’s testimony he drove) supports conviction	Defendant argues impairment was from sleepiness or foot injury, and blood evidence may be unreliable	Held: Evidence sufficient when viewed in prosecution’s favor; jury reasonably inferred visible impairment due to alcohol
Administrative error in judgment of sentence	—	Judgment mistakenly cites wrong statutory subsection for OWVI	Held: Remand for administrative correction of the judgment of sentence (no substantive relief warranted)

Key Cases Cited

People v. Walls, 265 Mich. App. 642 (Mich. Ct. App. 2005) (standard of review for lesser-offense instruction)
People v. Cornell, 466 Mich. 335 (Mich. 2002) (MCL 768.32 governs necessarily included lesser offenses)
People v. Martin, 271 Mich. App. 280 (Mich. Ct. App. 2006) (statutory language may govern over general lesser-offense rule)
People v. Lambert, 395 Mich. 296 (Mich. 1975) (distinction between OWI and OWVI is degree of intoxication)
Oxendine v. Secretary of State, 237 Mich. App. 346 (Mich. Ct. App. 1999) (hierarchical relationship between OWI and OWVI)
People v. Torres, 222 Mich. App. 411 (Mich. Ct. App. 1997) (trial court duty to instruct on lesser included offenses determined by evidence)
People v. Cline, 276 Mich. App. 634 (Mich. Ct. App. 2007) (standard for sufficiency-of-the-evidence review)
People v. Smith-Anthony, 494 Mich. 669 (Mich. 2013) (reviewing sufficiency standard)
People v. Gonzalez, 468 Mich. 636 (Mich. 2003) (deferential review; draw inferences for jury verdict)
People v. Hardiman, 466 Mich. 417 (Mich. 2002) (circumstantial evidence and prosecution need not negate every theory of innocence)
People v. Nowack, 462 Mich. 392 (Mich. 2000) (circumstantial evidence may sustain conviction)
People v. Perry, 460 Mich. 55 (Mich. 1999) (jury may accept or reject any evidence)
People v. Miller, 357 Mich. 400 (Mich. 1959) (blood alcohol concentration admissible as evidence of intoxication)
People v. Herndon, 246 Mich. App. 371 (Mich. Ct. App. 2001) (remand to correct administrative errors in judgment of sentence)