PEOPLE OF MI V JOSEPH MARK WOLFE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
May 10, 2002
9:00 a.m.
Plaintiff-Appellant,
v
No. 234940
Kent Circuit Court
LC No. 01-002134-FH
JOSEPH MARK WOLFE,
Defendant-Appellee.
Updated Copy
August 16, 2002
Before: Wilder, P.J., and Griffin and Smolenski, JJ.
WILDER, P.J.
The prosecutor appeals by leave granted the trial court's order dismissing felony child
endangerment charges, MCL 257.625(7)(a)(ii), and remanding to the district court. We reverse
and remand.
I. Facts and Procedural History
Defendant was bound over to the circuit court for trial on the charge of operating a motor
vehicle while impaired (OWI), second offense, MCL 257.625(3), while a person under the age of
sixteen was occupying the vehicle (child endangerment). In the information, the prosecution
noted its reliance on defendant's March 24, 1991, conviction for driving while intoxicated (DWI)
in the state of Texas, Tex Rev Civ Stat Ann, art 6701l-1, in seeking enhancement of the DWI
charge to a felony charge under MCL 257.625(7)(a)(ii).
Before trial, defendant moved for dismissal of the felony charge, arguing that the offense
of DWI under the Texas statute did not "substantially correspond" to either of Michigan's
primary drunk driving offenses (OUIL or OWI), as required by MCL 257.625(23), and that
therefore his DWI conviction in Texas did not constitute a prior conviction within the meaning of
MCL 257.625(7)(a)(ii), the result being that a felony charge could not be sustained. The trial
court agreed, granted the motion to dismiss, and remanded to the district court for trial on the
charge of OWI, first offense.
The trial court first found that because the Michigan statute requires an impairment from
alcohol consumption to affect the driver's "ability to operate a vehicle," in contrast to the Texas
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statute, which "requires merely that the driver be affected by alcohol," on its face the Michigan
statute imposed on the prosecutor a more demanding threshold of proofs. The trial court next
concluded that because the Texas and Michigan statutes were facially dissimilar, and because the
prosecutor presented no evidence that the Texas statute was applied in a substantially similar
manner to the Michigan statute, Oxendine v Secretary of State, 237 Mich App 346, 352-353; 602
NW2d 847 (1999), defendant's contention that the two statutes did not substantially correspond
to one another was correct.
This Court granted the prosecutor leave to appeal, People v Wolfe, unpublished order of
the Court of Appeals, entered July 12, 2001 (Docket No. 234940), to consider whether the trial
court correctly determined that the Texas and Michigan drunk driving statutes were not
substantially similar.
II. Standard of Review
The issue before us is one of statutory construction, a question of law that we review de
novo. People v Webb, 458 Mich 265, 274; 580 NW2d 884 (1998); Oxendine, supra at 349. As
the Supreme Court observed in Macomb Co Prosecutor v Murphy, 464 Mich 149, 158; 627
NW2d 247 (2001):
In considering a question of statutory construction, this Court begins by
examining the language of the statute. We read the statutory language in context
to determine whether ambiguity exists. If the language is unambiguous, judicial
construction is precluded. We enforce an unambiguous statute as written. Where
ambiguity exists, however, this Court seeks to effectuate the Legislature's intent
through a reasonable construction, considering the purpose of the statute and the
object sought to be accomplished. [Citations omitted.]
Unless defined in the statute, every word or phrase of a statute should be accorded its plain and
ordinary meaning, taking into account the context in which the words are used, Phillips v Jordan,
241 Mich App 17, 22-23, n 1; 614 NW2d 183 (2000), citing Western Michigan Univ Bd of
Control v Michigan, 455 Mich 531, 539; 565 NW2d 828 (1997). Further, the language must be
applied as written, Camden v Kaufman, 240 Mich App 389, 394; 613 NW2d 335 (2000); Ahearn
v Bloomfield Charter Twp, 235 Mich App 486, 498; 597 NW2d 858 (1999), and nothing should
be read into a statute that is not within the manifest intent of the Legislature as indicated by the
act itself.
III. Analysis
MCL 257.625(7)(a)(ii) provides in pertinent part:
(7) A person, whether licensed or not, is subject to the following
requirements:
(a) He or she shall not operate a vehicle in violation of subsection (1), (3),
(4), or (5) while another person who is less than 16 years of age is occupying the
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vehicle. A person who violates this subdivision is guilty of a crime punishable as
follows:
* * *
(ii) If the violation occurs within 7 years of a prior conviction or within 10
years of 2 or more prior convictions, a person who violates this subdivision is
guilty of a felony and shall be sentenced to pay a fine of not less than $500.00 or
more than $5,000.00 and to either of the following:
(A) Imprisonment under the jurisdiction of the department of corrections
for not less than 1 year or more than 5 years.
(B) Probation with imprisonment in the county jail for not less than 30
days or more than 1 year and community service for not less than 60 days or more
than 180 days. Not less than 48 hours of this imprisonment shall be served
consecutively. This term of imprisonment shall not be suspended.[1]
The term "prior conviction," as used in subsection 625(7), is defined in subsection
625(23) to mean "a conviction for [OWI or OUIL], whether under a law of this state, a local
ordinance substantially corresponding to a law of this state, or a law of another state substantially
corresponding to a law of this state." MCL 257.625(23). See also MCL 257.625(23)(a).2
MCL 257.625(1) and (3) provide:
(1) A person, 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 either of the following applies:
(a) The person is under the influence of intoxicating liquor, a controlled
substance or a combination of intoxicating liquor and a controlled substance.
(b) The person has an alcohol content of 0.10 grams or more per 100
milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.
* * *
1
Without enhancement by either two prior convictions within ten years or one prior conviction
within seven years, the offense is classified as a misdemeanor punishable by not more than one
year's imprisonment, MCL 257.625(7)(a)(i), and therefore, within the jurisdiction of the district
court. MCL 600.8311.
2
While other convictions apply, they are not relevant to the facts before us in this case.
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(3) A person, 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
when, due to the consumption of intoxicating liquor, a controlled substance, or a
combination of intoxication liquor and a controlled substance, the person's ability
to operate the vehicle is visibly impaired . . . .
At the time of defendant's DWI conviction in Texas, Tex Rev Civ Stat Ann, art 6701l-1 provided
in part:
(a) In this article:
(1) "Alcohol concentration" means: (A) the number of grams of alcohol
per 100 milliliters of blood; (B) the number of grams of alcohol per 210 liters of
breath; or (C) number of grams of alcohol per 67 milliliters of urine.
(2) "Intoxicated" means: (A) not having the normal use of mental faculties
by reason of the introduction of alcohol, a controlled substance, a drug, or a
combination of two or more of those substances into the body; or (B) having an
alcohol concentration of 0.10 or more.
(b) A person commits an offense if the person is intoxicated while driving
or operating a motor vehicle in a public place.
The core issue in this case is whether MCL 257.625(1) and (3) and Tex Rev Civ Stat Ann, art
6701l-1 are substantially corresponding laws within the meaning of MCL 257.625(23).
Because the term "substantially corresponding" is not defined in MCL 257.625(23), we
consult dictionary definitions for aid in construing this term in accordance with its ordinary and
generally accepted meaning. People v Lawrence, 246 Mich App 260, 265; 632 NW2d 156
(2001), citing People v Morley, 461 Mich 325, 330; 603 NW2d 250 (1999). The word
"substantial" is defined as "being such with respect to essentials: two stories in substantial
agreement; pertaining to the substance, matter, or material of a thing; pertaining to the essence of
a thing." Random House Webster's College Dictionary (1997), p 1285. The word
"corresponding" is defined as "similar in position, form, etc: corresponding officials in two
states." Id. at 297. In addition, Merriam Webster's Collegiate Thesaurus (2002) lists the words
"like," "akin," "alike," analogous" and "comparable" as being synonymous to the word
"corresponding."
We agree with the prosecutor and find that the plain language of MCL 257.625(1) and (3)
and Tex Rev Civ Stat Ann, art 6701l-1 indicates that they are substantially corresponding statutes
that require "no judicial gloss to show [their] similarity." While the Michigan and Texas laws
employ different words, it is clear that each of the statutes in question uses similar subjective
criteria to prohibit similar conduct pertaining to the same essence, namely, drunk driving. In
addition, both the Texas and Michigan laws set forth identical blood alcohol thresholds,
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measured in identical ways, as an objective method of proving a violation. MCL 257.625(23)
requires that the law of the other state "substantially correspond" to a law of this state; it does not
require an identical match.
Because the Michigan and Texas laws substantially correspond to one another when the
term "substantially corresponding" is accorded its ordinary and generally accepted meaning, the
trial court's reliance on People v Lambert, 395 Mich 296, 305; 235 NW2d 338 (1975), and
Oxendine, supra at 354, was misplaced.
IV. Conclusion
MCL 257.625(3) and Tex Rev Civ Stat Ann, art 6701l.1 are "substantially corresponding"
laws, within the meaning of MCL 257.625(23). Accordingly, defendant's conviction under the
Texas statute constitutes a prior conviction under MCL 257.625(7)(a)(ii), and defendant was
appropriately bound over to the circuit court on the charge of OWI, second offense. Thus, the
trial court erred in granting defendant's motion to dismiss.
Reversed and remanded to the trial court for proceedings consistent with this opinion.
We do not retain jurisdiction.
/s/ Kurtis T. Wilder
/s/ Richard Allen Griffin
/s/ Michael R. Smolenski
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