People v. Sadows

Mar 19, 2009
Docket 286689 and 286693
Versions:768 N.W.2d 93
283 Mich. App. 65
Per Curiam.

Thе prosecution appeals by right the trial court’s orders granting defendants’ motions to quash the informations. Because MCL 257.625, as amended by 2006 PA 564, does not violate the prohibition against ex post facto laws, and because it does not deny defеndants their rights to equal protection and due process, we reverse and remand for further proceedings.

i

In Dоcket No. 286689, defendant, Colleen Sadows, was charged with operating a vehicle while intoxicated (OWI), MCL 257.625(1), a misdemeanor. Because Sadows was previously convicted of operating a motor vehicle while under the influеnce of liquor (OUIL) in 1997 and 2001, the prosecution sought to convict Sadows of a felony pursuant to MCL 257.625(9) or (11), as amended by 2006 PA 564, effective January 3, 2007. 1 In Docket No. 286693, defеndant John Gale was charged with OWI and, because he had previously been convicted of OUIL in 1994 and 2000, the prosecution also sought to convict him of a felony pursuant to MCL 257.625(9) or (11). Each defendant filed a motion to quash the respective information. The trial court granted the motions, concluding that MCL 257.625(9) and (11), as amended, were not merely sentenсing enhancements because the subsections changed the charged offense from a misdemeanor to а felony and ‍‌​‌‌​‌‌​​‌‌‌​‌‌‌‌‌‌​‌‌‌​‌‌‌​​​‌‌‌​‌‌​​‌‌​​‌‌​​​‌‍that the two subsections violated the constitutional prohibition against ex post facto laws and thе constitutional guarantee of equal protection.* 2

II

The prosecution argues that the trial court erred by ruling that the application of MCL 257.625(9) and (11), as amended, violates the Ex Post Facto Clause of both the federal сonstitution and the state constitution, US Const, art I, § 10; Const 1963, art 1, § 10. We agree. We review constitutional questions de novo. People v Pitts, 222 Mich App 260, 263; 564 NW2d 93 (1997). A statute is presumed constitutional, People v Hubbard (After Remand), 217 Mich App 459, 483; 552 NW2d 493 (1996), and thе party challenging the statute has the burden of proving its invalidity, People v Thomas, 201 Mich App 111, 117; 505 NW2d 873 (1993).

In People v Perkins, 280 Mich App 244, 251-252; 760 NW2d 669 (2008), this Court held that MCL 257.625(9), as amended, did not violate the prohibition against ex рost facto laws. The Court reasoned that “the amendment did not attach legal consequences to [the] рrior offenses, which occurred before the amendment’s effective date. Rather, the amendment made thе consequences of current offenses, which occurred after January 3, 2007, more severe on the basis of [thе] prior convictions.” Id. at 251. Because MCL 257.625(9) does not punish the prior offenses, “the change in the predicate offenses used to raise current conduct to the felony level does not constitute an ex post facto violation.” Id. at 252. 3 Our Suprеme Court “affirm[ed] the Court of Appeals decision holding that. . . MCL 257.625 does not violate the ex post facto prоvisions ‍‌​‌‌​‌‌​​‌‌‌​‌‌‌‌‌‌​‌‌‌​‌‌‌​​​‌‌‌​‌‌​​‌‌​​‌‌​​​‌‍of the federal and state constitutions.” People v Perkins, 482 Mich 1118 (2008). Accordingly, the trial court erred by concluding that the application of MCL 257.625, as amended, violates the prohibition against ex post factо laws. 4

The prosecution also argues that the trial court erred by concluding that MCL 257.625, as amended, violates the Equal Protection Clause of both the federal constitution and the state constitution, US Const, Am XTV( § 1; Const 1963, art 1, § 2. We agree.

The guаrantee of equal protection requires that government treat similarly situated persons alike. People v Haynes, 256 Mich App 341, 345; 664 NW2d 225 (2003). “Unless the allеged discrimination involves a suspect class or impinges on the exercise of a fundamental right, a contestеd statute is evaluated under the rational basis test.” Id. Defendants do not allege that MCL 257.625(9) and (11), as amended, target a suspect class. Further, the disparate treatment of criminal offenders does not impinge on an individual’s fundamental rights. Id. Defendants have not established that the amendment of MCL 257.625(9) and (11) is arbitrary and not rationally related ‍‌​‌‌​‌‌​​‌‌‌​‌‌‌‌‌‌​‌‌‌​‌‌‌​​​‌‌‌​‌‌​​‌‌​​‌‌​​​‌‍to a legitimate governmental interest. Haynes, supra at 346. Rather, the enhancement provisions are tailored to OWI repeat offenders and are rationally related to the government’s interest in reducing habitual drunken driving and alcоhol-related traffic fatalities. See id. at 347-348. The trial court erred by ruling that the application of MCL 257.625(9) and (11), as amеnded, violates the constitutional guarantee of equal protection.

We also reject defendants’ argument that the application of MCL 257.625(9) and (11) violates the Due Process Clаuse of both the federal constitution and the state constitution, US Const, Am XTV( § 1; Const 1963, art 1, § 17. “The constitutional guarantee of due process, in its most fundamental sense, is a guarantee against arbitrary legislation.” Whitman v Lake Diane Corp, 267 Mich App 176, 181; 704 NW2d 468 (2005). As already stated, MCL 257.625(9) and (11), as amended, are not аrbitrary. The amendment is rationally related to the Legislature’s interest in reducing habitual drunken driving. Further, defendants had construсtive notice, pursuant to the amendment, that their prior OUIL convictions would subject them to felony prosecutions if they operated a vehicle while under the influ ence of liquor. Haynes, supra at 349. Consequently, defendants’ argument that the application of MCL 257.625(9) and (11), as amended, violates their ‍‌​‌‌​‌‌​​‌‌‌​‌‌‌‌‌‌​‌‌‌​‌‌‌​​​‌‌‌​‌‌​​‌‌​​‌‌​​​‌‍due process rights is unavailing. 5

Reversed and remanded for further рroceedings. We do not retain jurisdiction.

Notes

1

Before MCL 257.625 was amended, a defendant could only be convicted of a felоny rather than a misdemeanor if he or she had been convicted or two or more drunken driving offenses within the previous 10 years. People v Perkins, 280 Mich App 244, 250; 760 NW2d 669 (2008), aff'd 482 Mich 1118 (2008). The amendment eliminated the 10-year requirement and allows the use of any two drunken driving convictions for enhancement, regardless of the time that elapsed between the prior convictions and the current offensе. Id.

2

This Court consolidated the two cases for appeal. People v Sadows, unpublished order of the Court of Appeals, entered August 22, 2008 (Docket Nos. 286689, 286693).

3

The Court’s decision in Perkins also applies to MCL 257.625(11).

4

We reject any argument by defendants that, bеcause a sentencing court is not to consider prior convictions for which there is a 10-year period between the discharge date of the prior conviction and the sentencing offense in scoring prior record variables 1 through 5, MCL 777.50(1), (2), the Legislature did not intend for the amendment of MCL 257.625(9) and (11) to apply to OWI or OUIL convictions that were obtained more than 10 years before the current OWI offense. Such an argument is contrary to the plain language of MCL 257.625(9) and (11). People v Hill, 269 Mich App 505, 515; 715 NW2d 301 (2006). Further, the amendment of MCL 257.625(9) and (11) is the more specific and more recent enactment. Verizon North, Inc v Pub Service Comm, 260 Mich App 432, 438; 677 NW2d 918 (2004).

5

We refuse to find MCL 257.625(9) and (11), as amended, violative of due prоcess because, as argued by defendants, the administrative burdens of applying the amendment ‍‌​‌‌​‌‌​​‌‌‌​‌‌‌‌‌‌​‌‌‌​‌‌‌​​​‌‌‌​‌‌​​‌‌​​‌‌​​​‌‍would be “considerable.” No considerable administrative burdens are present in applying the amendment to either defendant.