PEOPLE OF MI V MICHAEL J BULGER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
November 30, 2010
9:00 a.m.
Plaintiff-Appellee,
v
No. 288312
Macomb Circuit Court
LC No. 2007-003573-FH
MICHAEL J. BULGER,
Defendant-Appellant.
Before: OWENS, P.J., and WHITBECK and FORT HOOD, JJ.
PER CURIAM.
Defendant Michael Bulger pleaded no contest to one count of operating a motor vehicle
while intoxicated causing death1 and one count of operating a motor vehicle while intoxicated,
second offense.2 The trial court sentenced Bulger to 71 months to 15 years in prison for the
operating a motor vehicle while intoxicated causing death conviction and 93 days for the
operating a motor vehicle while intoxicated, second offense conviction, with credit for three days
already served. Bulger now appeals by leave granted. We affirm.
I. BASIC FACTS
On April 19, 2007, Bulger drove a vehicle on North Avenue in Macomb Township while
under the influence of alcohol, causing the death of Emilee Floer. On October 30, 2007, Bulger
pleaded no contest to the charges of operating a motor vehicle while intoxicated causing death
and operating while intoxicated, second offense.
The trial court determined that, based on Bulger’s prior record and offense variable
scores, for the charge of operating while intoxicated causing death, the sentencing guidelines
called for a minimum sentence of 36 to 71 months. In scoring the sentencing guidelines, the trial
court assessed two points under Prior Record Variable (PRV) 5 for Bulger’s prior conviction for
1
MCL 257.625(4)(a).
2
MCL 257.625(1) and MCL 257.625(9)(b).
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operating a vehicle as a minor with any bodily alcohol content (the “zero-tolerance provision”).3
The trial court sentenced Bulger to concurrent terms of 71 months to 15 years in prison for the
operating while intoxicated causing death conviction and 93 days for the operating while
intoxicated, second offense conviction, with a credit of three days for time served. Bulger
moved for resentencing, challenging the trial court’s scoring of PRV 5. Bulger claimed that
PRV 5 should have been scored at zero points, resulting in a reduced minimum recommendation
of 29 to 57 months. The trial court denied Bulger’s motion. Bulger now appeals.
II. SENTENCING
A. STANDARD OF REVIEW
Bulger argues that the trial court erred by denying his motion for resentencing. This
Court reviews de novo the proper interpretation and application of Michigan’s legislative
sentencing guidelines.4
B. PRIOR CONVICTION
Bulger argues that his conviction for underage drinking and driving under the zerotolerance provision does not constitute the type of prior conviction that may be counted against
him in scoring the sentencing guidelines. More specifically, he argues that it is not an offense
for “operating a vehicle . . . while under the influence of or impaired by alcohol” because it
merely required proof that there was alcohol in Bulger’s body, not that he was “under the
influence” or “impaired.”
3
MCL 257.625(6) provides:
(6) A person who is less than 21 years of age, 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 the person has any bodily alcohol
content. As used in this subsection, “any bodily alcohol content” means either of
the following:
(a) An alcohol content of 0.02 grams or more but less than 0.08 grams per
100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or,
beginning October 1, 2013, the person has an alcohol content of 0.02 grams or
more but less than 0.10 grams per 100 milliliters of blood, per 210 liters of breath,
or per 67 milliliters of urine.
(b) Any presence of alcohol within a person’s body resulting from the
consumption of alcoholic liquor, other than consumption of alcoholic liquor as a
part of a generally recognized religious service or ceremony.
4
People v Morson, 471 Mich 248, 255; 685 NW2d 203 (2004).
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This is an issue of first impression. We conclude that the best reading of Michigan’s
legislative sentencing guidelines, in conjunction with the drunk-driving statute, supports the
prosecution’s argument that the trial court properly counted Bulger’s prior conviction under the
zero-tolerance provision when determining his sentence range.
The sentencing guidelines statute calls for the trial court to:
Count all prior misdemeanor convictions and prior misdemeanor juvenile
adjudications for operating or attempting to operate a vehicle, vessel, ORV,
snowmobile, aircraft, or locomotive while under the influence of or impaired by
alcohol, a controlled substance, or a combination of alcohol and a controlled
substance. Do not count a prior conviction used to enhance the sentencing
offense to a felony.[5]
Therefore, the crucial question is whether Bulger’s conviction for being a minor operating a
vehicle with any bodily alcohol content constitutes a misdemeanor for operating a vehicle while
“under the influence” of alcohol or “impaired by” alcohol.
Resolution of the issue requires this Court to interpret the sentencing statute. And, in
doing so, we should ascertain and give effect to the Legislature’s intent.6 We should also
reasonably construe the statute, with regard to the purpose of the act.7 Further, we must enforce
clear statutory language as written.8 However, we bear in mind that seemingly plain language
may be rendered ambiguous when used in connection with another statute.9 Thus, we should
reconcile apparent inconsistencies if possible.10
It is true that Bulger’s prior conviction under the zero-tolerance provision did not require
proof that he was actually under the influence of alcohol or was impaired by alcohol.11 Further,
the Legislature differentiated the zero-tolerance provision from the crimes of operating while
intoxicated or operating while visibly impaired by prohibiting a plea of guilty to the zerotolerance provision in exchange for dropping either of the more serious charges.12 Finally, the
zero-tolerance provision applies when a minor has an alcohol content of less than 0.08 grams per
5
MCL 777.55(2)(b).
6
People v Giovannini, 271 Mich App 409, 411; 722 NW2d 237 (2006).
7
Id.
8
People v Gillis, 474 Mich 105, 115; 712 NW2d 419 (2006).
9
People v Valentin, 457 Mich 1, 6; 577 NW2d 73 (1998).
10
Nowell v Titan Ins Co, 466 Mich 478, 483; 648 NW2d 157 (2002); People v Coffee, 151 Mich
App 364, 369; 390 NW2d 721 (1986).
11
MCL 257.625(6).
12
MCL 257.625(16).
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100 milliliters of blood, whereas operating while intoxicated requires an alcohol content of at
least 0.08 grams.13
However, when considering the zero-tolerance provision as a prior offense, the
Legislature chose not to make such broad distinctions. MCL 257.625(9) requires heavier fines
and increased jail time for offenders with one or more prior convictions, and multiple prior
convictions raise operating while intoxicated to a felony. For the purposes of the drunk-driving
statute, a prior conviction is defined as any violation of the subsections of MCL 257.625, except
for the crime of a car owner authorizing a person who is under the influence to drive the owner’s
vehicle.14 Thus, the Legislature specifically chose to count violations of the zero-tolerance
provision as prior convictions for the purposes of MCL 257.625. The only limitation is that
multiple violations of the zero-tolerance provision count as a single prior conviction.15
We can extend the approach in MCL 257.625 to the sentencing statute if we read the
sentencing statute broadly to refer to the drunk-driving statute as a whole, rather than to the
specific crimes that require proof of operating a vehicle “under the influence of or impaired by”
alcohol. Because the drunk-driving statute itself uses the words in both the broad and narrow
senses, applying the broad sense to the sentencing statute does not create any new linguistic
conflicts. In addition, Bulger’s argument would lead to the incongruous situation where a
conviction under the zero-tolerance provision would count as a prior conviction for the purposes
of raising a misdemeanor to a felony, but not for the purposes of a sentencing enhancement. It is
more likely, therefore, that the Legislature’s use of “under the influence of or impaired by” in the
sentencing statute refers to the drunk-driving statute as a whole and not to specific crimes that
include the same language as an element. The drunk-driving statute provides clear evidence that
the Legislature intended to use prior convictions under the zero-tolerance provision to increase
the sentences of repeat offenders. Reading the language in the sentencing statute broadly
produces a result in which the sentencing statute and the drunk-driving statute coexist
harmoniously.
Bulger also claims that several of his prior record and offense variable scores are
unconstitutional under Blakely v Washington.16 However, the Michigan Supreme Court has held
that Blakely does not apply to Michigan’s indeterminate sentencing system.17 Therefore, his
argument on this point is without merit.
13
MCL 257.625(1)(b), (6)(a).
14
MCL 257.625(25) (excluding MCL 257.625[2]).
15
MCL 257.625(26).
16
Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004).
17
People v Drohan, 475 Mich 140, 159; 715 NW2d 778 (2006).
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The best reading of the sentencing statute18 and the zero-tolerance provision19 together
reveals that the trial court properly considered Bulger’s violation of the zero-tolerance provision
in scoring two points for PRV 5. Accordingly, we conclude that the trial court correctly
calculated PRV 5 of Bulger’s sentencing guidelines.
We affirm.
/s/ Donald S. Owens
/s/ William C. Whitbeck
/s/ Karen M. Fort Hood
18
MCL 777.55(2)(b).
19
MCL 257.625(6).
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