PEOPLE OF MI V JAMES RICHARD LARGE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 10, 2004
Plaintiff-Appellant,
v
No. 253261
Jackson Circuit Court
LC No. 03-000895-FH
JAMES RICHARD LARGE,
Defendant-Appellee.
Before: Murray, P.J., and Markey and O’Connell, JJ.
PER CURIAM.
Defendant was charged with manslaughter with a motor vehicle, MCL 750.321;
operating a vehicle under the influence of liquor (OUIL) causing death, MCL 257.625(4); OUIL
second offense, MCL 257.625(1); and violation of license restrictions, MCL 257.312. The
prosecution appeals by leave the circuit court order that denied its motion to reinstate the OUIL
causing death count and granted defendant’s motion to quash the manslaughter with a motor
vehicle count.
Defendant’s vehicle struck and killed the victim as she rode her bicycle into the roadway
from her elevated and partially obscured driveway. The prosecution presented evidence that
defendant was traveling between 60 and 65 miles per hour in a fifty-five miles per hour zone and
that his blood alcohol content was .10. The prosecutor contends that the circuit court erred in
finding that the district court abused its discretion in binding over defendant on the manslaughter
with a motor vehicle count. We disagree.
This Court reviews a district court’s decision to bind over a defendant for an abuse of
discretion. People v Hudson, 241 Mich App 268, 276; 615 NW2d 784 (2000) (citations
omitted). “A magistrate’s ruling that alleged conduct falls within the scope of a criminal statute
is a question of law reviewed for clear error.” People v Orzame, 224 Mich App 551, 557; 570
NW2d 118 (1997) (citations omitted).
An unlawful act committed in a grossly negligent manner that proximately causes death
is involuntary manslaughter. People v McCoy, 223 Mich App 500, 502; 566 NW2d 667 (1997)
(citations omitted). “To prove gross negligence amounting to involuntary manslaughter, the
prosecution must establish: (1) defendant’s knowledge of a situation requiring the use of
ordinary care and diligence to avert injury to another, (2) [defendant’s] ability to avoid the
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resulting harm by ordinary care and diligence in the use of the means at hand, and (3)
[defendant’s] failure to use care and diligence to avert the threatened danger when to the
ordinary mind it must be apparent that the result is likely to prove disastrous to another.” People
v Albers, 258 Mich App 578, 582; 672 NW2d 336 (2003), citing McCoy, supra at 503.
Although the circuit court concluded that the district court abused its discretion in
binding over defendant on this count, the circuit court agreed with the district court’s finding that
defendant’s conduct was grossly negligent. Defendant does not challenge the lower courts’
conclusion that his conduct was grossly negligent. Instead, he contends that the district and
circuit courts correctly found that the prosecution had not established causation, i.e., had not
presented evidence that defendant had the ability to avoid the harm. The only testimony
presented at the preliminary examination on this point indicated that by using ordinary care and
diligence defendant did not have the ability to avoid the fatal accident. Deputy Bradley Piros,
who was admitted as an expert in accident reconstruction, opined that the accident was inevitable
even if defendant had been driving forty-five miles per hour. Piros explained how he had
performed twelve tests involving the driveway in question and a similar bicycle to the one the
victim was riding. Piros determined that the victim was traveling down the driveway at a speed
of nine miles per hour and that the distance from the edge of the driveway to the area of impact
was approximately thirteen feet. Piros was then asked:
Q. And a person traveling at nine miles per hour from the edge of the driveway to
the area of impact, how much time transpired from the time that Cody reached
the edge of the road until the point she was struck by Mr. Large’s truck?
***
A. Using the distance of approximately thirteen feet and the speed of nine miles
per hour, which if you calculate it in feet per second would be a little over
thirteen feet, so approximately one second.
Q. So that calculation basically says from the time Cody reaches the edge of the
road until the point she’s hit, covering that, traversing that thirteen feet would
take approximately a second.
A. Correct.
When asked how long it would take a sober driver to perceive a threat on the roadway, Piros
stated, “Normal perception time in order to see a threat, realize you have a threat and then decide
what you’re going to do is around a second a half.” Thus, if defendant had been sober, he still
would not have had time to react.
To bind the defendant over, the magistrate must always find that there is evidence
regarding each element of the crime charged or evidence from which the elements may be
inferred. Hudson, supra at 278 (citations omitted). In this case, there was no evidence
demonstrating that defendant could have avoided the resulting harm by using ordinary care and
diligence. Based on the above testimony, even if defendant had been sober and had been driving
forty-five miles per hour, defendant could not have avoided the accident. Thus, the circuit court
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correctly found that the district court abused its discretion in binding over defendant on this
count.
The prosecution next contends that the district court abused its discretion in denying its
request to bind over defendant on the OUIL causing death count. We disagree.
As acknowledged by the prosecutor, our Supreme Court has addressed the language of
the OUIL causing death statute in People v Lardie, 452 Mich 231; 551 NW2d 656 (1996). The
statute that was in effect at the time of the Lardie case provided the following:
“A person, whether licensed or not, who operates a motor 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, under the influence of intoxicating liquor or a controlled substance, or a
combination of intoxicating liquor and a controlled substance, or with a blood
alcohol content of 0.10% or more by weight of alcohol, and by the operation of
that motor vehicle causes the death of another person is guilty of a felony,
punishable by imprisonment for not more than 15 years, or a fine of not less than
$2,500.00 or more than $10,000.00, or both.” [Lardie, supra at 238, quoting
MCL 257.625(4), as adopted by 1991 PA 98.][1]
The Lardie Court found that under the above statute, the prosecutor must prove that the
driver had the general intent to drive while intoxicated and that this wrongful act, i.e., the
intoxicated driving, must be the cause of the death. Lardie, supra, 234. The Court stated that
“[i]n seeking to reduce fatalities by deterring drunken driving, the statute must have been
designed to punish drivers when their drunken driving caused another’s death.” Id. at 257
(emphasis in original, footnote omitted). “Otherwise, the statute would impose a penalty on a
driver even when his wrongful decision to drive while intoxicated had no bearing on the death
1
We note that the OUIL statute has frequently been amended. MCL 257.625(4), as last
amended by 2003 PA 61, effective July 15, 2003, provides in relevant part:
A person, whether licensed or not, who operates a motor vehicle in
violation of subsection (1) [under the influence of alcoholic liquor, a controlled
substance, or a combination of alcoholic liquor and a controlled substance, or
having an unlawful body alcohol content], (3) [visibly impaired by the
consumption of alcoholic liquor, a controlled substance, or a combination of
alcoholic liquor and a controlled substance], or (8) [any body content of a
schedule 1 controlled substance] and by the operation of that motor vehicle causes
the death of another person is guilty of a crime as follows: . . . . [penalties
omitted.]
Even though the statute has been amended several times since the Lardie decision, the pertinent
provisions remain substantially unchanged. Therefore, the Court’s analysis in Lardie is
applicable to the facts at hand.
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that resulted.” Id. The Court stated that such an interpretation would produce an absurd result
by divorcing the defendant’s fault from the resulting injury. Id. The Court continued:
Moreover, this interpretation would not directly further the Legislature’s
purpose of reducing fatalities because there is no reason to penalize an intoxicated
driver with a fifteen-year felony when there is an accident resulting in a fatality if
that driver, even if not intoxicated, would still have been the cause in fact of the
victim’s death. There would be no reason because it would not prevent that
fatality from occurring again. Therefore, in proving causation, the people must
establish that the particular defendant’s decision to drive while intoxicated
produced a change in that driver’s operation of the vehicle that caused the death
of the victim. In this way, the statute does not impose a severe penalty when the
injury was unavoidable for that particular driver (regardless of whether he was
intoxicated), because the statute ensures that the wrongful decision caused the
death in the accident. [Id. at 258 (footnotes omitted).]
Testimony at the preliminary examination revealed that defendant was driving under the
influence of alcohol. But, as discussed above, testimony also revealed that defendant’s
intoxicated driving was not a substantial cause of the victim’s death. The prosecution failed to
present sufficient evidence to justify a finding that defendant’s intoxicated driving was a
substantial cause of the victim’s death, as required in Lardie. Thus, the district court did not
abuse its discretion in denying the prosecution’s request to bind over defendant on this count.
The prosecutor argues that Lardie was wrongly decided and that subsequent case law
casts doubt on Lardie’s analysis; however, “[a] decision of the Supreme Court is binding upon
this Court until the Supreme Court overrules itself.” O’Dess v Grand Trunk W R Co, 218 Mich
App 694, 700; 555 NW2d 261 (1996)(citations omitted). Therefore, we may not revisit the
holding of Lardie. Id.
We affirm.
/s/ Christopher M. Murray
/s/ Jane E. Markey
/s/ Peter D. O’Connell
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