PEOPLE OF MI V JOHN GALE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
March 19, 2009
9:15 a.m.
Plaintiff-Appellant,
v
No. 286689
Wayne Circuit Court
LC No. 08-005125
COLLEEN ELIZABETH SADOWS,
Defendant-Appellee.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 286693
Wayne Circuit Court
LC No. 08-003887-FH
JOHN JOSEPH GALE,
Defendant-Appellee.
Advance Sheets Version
Before: Saad, C.J., and Bandstra and Hoekstra, JJ.
PER CURIAM.
The 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 defendants their rights to
equal protection and due process, we reverse and remand for further proceedings.
I
In Docket 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 influence of liquor (OUIL) in 1997 and
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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, defendant 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 sentencing
enhancements because the subsections changed the charged offense from a misdemeanor to a
felony and that the two subsections violated the constitutional prohibition against ex post facto
laws and the 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
constitution 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 the 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 post facto laws.
The Court reasoned that “the amendment did not attach legal consequences to [the] prior
offenses, which occurred before the amendment’s effective date. Rather, the amendment made
the consequences of current offenses, which occurred after January 3, 2007, more severe on the
basis of [the] 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 Supreme Court “affirm[ed] the
Court of Appeals decision holding that . . . MCL 257.625 does not violate the ex post facto
provisions 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 facto laws.4
1
Before MCL 257.625 was amended, a defendant could only be convicted of a felony 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 offense. 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, because 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
(continued…)
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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 XIV, § 1; Const 1963, art 1, § 2. We agree.
The guarantee 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
alleged discrimination involves a suspect class or impinges on the exercise of a fundamental
right, a contested 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 alcohol-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 amended, 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 Clause of both the federal constitution and the state constitution, US
Const, Am XIV, § 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 arbitrary. The amendment is rationally related to the Legislature’s
interest in reducing habitual drunken driving. Further, defendants had constructive notice,
pursuant to the amendment, that their prior OUIL convictions would subject them to felony
prosecutions if they operated a vehicle while under the influence 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 proceedings. We do not retain jurisdiction.
/s/ Henry William Saad
/s/ Richard A. Bandstra
/s/ Joel P. Hoekstra
(…continued)
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 process 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.
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