PEOPLE OF MI V MICHAEL R DOYLE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 26, 1996
Plaintiff-Appellee,
v
No. 181124
LC No. 94-131421
MICHAEL R. DOYLE,
Defendant-Appellant.
Before: Griffin, P.J., and Bandstra and M. Warshawsky,* JJ.
PER CURIAM.
Defendant was convicted by a jury of operating a motor vehicle while under the influence of
intoxicating liquor (OUIL), MCL 257.625(6)(d); MSA 9.2325(6)(d),1 and pleaded guilty to driving
while license is suspended (DWLS), MCL 257.904(1); MSA 9.2604(1), and habitual offender, fourth
offense, MCL 769.12; MSA 28.1084. He was sentenced to serve three to twenty years in prison for
the habitual offender conviction and one year in jail for the DWLS conviction. He appeals as of right.
We affirm defendant’s convictions, but remand for a correction of the judgment of sentence.
Defendant first argues that the trial court improperly denied his motion for a directed verdict
because there was insufficient evidence to show beyond a reasonable doubt that he was intoxicated.
When ruling on a motion for a directed verdict, the trial court must consider the evidence presented by
the prosecutor up to the time the motion was made and determine whether any rational trier of fact
could find that the essential elements of the charged crime were proven beyond a reasonable doubt.
This Court applies the same standard on review of a ruling on such a motion. People v Daniels, 192
Mich App 658, 665; 482 NW2d 176 (1992).2
The OUIL statute, MCL 257.625; MSA 9.2325, provides in pertinent part:
(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
* Circuit judge, sitting on the Court of Appeals by assignment.
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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 or a controlled
substance, or a combination of intoxicating liquor and a controlled substance.
OUIL is a status crime that focuses only on the fact that the defendant operates an automobile
while he is intoxicated. People v Crawford, 187 Mich App 344, 350; 467 NW2d 818 (1991).
John Runchey testified that defendant smelled of alcohol, staggered, and had slurred speech and
that he believed defendant was intoxicated. Officer Donald Russell also testified that defendant smelled
strongly of alcohol, was staggering, and had slurred speech. Although defendant testified that he was
limping because of a sore knee, Officer Russell stated that defendant's manner of walking was not
consistent with someone who was injured or limping, but was consistent with staggering due to alcohol.
Officer Russell also testified that he did not administer a field sobriety test to defendant because
defendant had tried to flee once before, and he might try again. Officer Russell stated that the reason a
chemical test was not performed on defendant was because he refused the test. Officer Russell
believed that defendant had been drinking and was intoxicated.
Defendant argues that Officer Russell's testimony was not credible because it differed at the
preliminary examination and trial. However, the discrepancy in Officer Russell's testimony was only in
regard to the struggle that occurred when he was handcuffing defendant, in terms of what defendant did
with his hands. Officer Russell's testimony regarding the smell of alcohol, the staggering, slurred speech,
and hiding behind a tree was consistent. Although defendant attempted to impeach Officer Russell at
trial with his prior testimony, the jury was entitled to weigh his credibility and believe his testimony that
defendant was intoxicated. People v Daniels, 172 Mich App 374, 378; 431 NW2d 846 (1988). This
Court will not interfere with credibility determinations by the trier of fact. Id. Thus, the trial court
properly denied defendant's motion for a directed verdict because there was sufficient evidence from
which a reasonable jury could determine that defendant was intoxicated at the time of the accident.
Defendant next argues that the enhancement from a misdemeanor to a felony for his OUIL
conviction was improper because the prosecutor did not prove defendant's two prior OUIL convictions
at trial as elements of OUIL third offense. However, a defendant is not entitled to a jury trial on the
issue of his prior convictions given that the OUIL statute establishes a sentence enhancement scheme
rather than a separate substantive crime. People v Weatherholt, 214 Mich App 507, 512; 543
NW2d 34 (1995).
If a person is convicted of OUIL, MCL 257.625(6)(d); MSA 9.2325(6)(d) provides:
(d) If the violation occurs within 10 years of 2 or more prior convictions, the
person is guilty of a felony, and shall be sentenced to imprisonment for not less than 1
year or more than 5 years, or a fine of not less than $500.00 or more than $5,000.00,
or both.
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MCL 257.625(11) and (12); MSA 9.2325(11) and (12)3 further provide:
(11) If the prosecuting attorney intends to seek an enhanced sentence under
subsection (6)(b) or (d) or (10)(b) or (c) based upon the defendant having 1 or more
prior convictions, the prosecuting attorney shall include on the complaint and information
filed in district court, circuit court, recorder's court, municipal court, or probate court a
statement listing the defendant's prior convictions.
(12) A prior conviction shall be established at sentencing by 1 or more of the
following:
(a) An abstract of conviction.
(b) A copy of the defendant's driving record.
(c) An admission by the defendant.
Pursuant to MCL 257.625(11); MSA 9.2325(11), the prosecutor stated in the complaint that
he intended to seek an enhanced sentence against defendant based on his having two prior OUIL
convictions. Moreover, a certified copy of defendant's driving record was admitted into evidence prior
to sentencing, reflecting that defendant had ten drinking and driving offenses. Therefore, the
requirements to enhance defendant's sentence from a misdemeanor to a felony for OUIL third offense
were met, and defendant's OUIL conviction was properly enhanced.
Defendant asserts that the trial court violated a stipulation that defendant's admission of his two
prior OUIL convictions would not waive his challenge to the enhancement pursuant to People v Fish,
(On Remand), 207 Mich App 486; 525 NW2d 467 (1994). However, Fish has been overruled, and
defendant was properly convicted of OUIL third offense pursuant to Weatherholt, supra.
Defendant also argues that his sentence of three to twenty years in prison is disproportionate.
The sentences imposed upon criminal defendants are reviewed for an abuse of discretion. People v
Milbourn, 435 Mich 630; 461 NW2d 1 (1990). A sentence constitutes an abuse of discretion if it is
disproportionate to the seriousness of the circumstances surrounding the offense and the offender. Id.
Prior to his current OUIL conviction, defendant had ten drunk driving offenses. Defendant
admitted that he was an alcoholic and had a current problem with alcohol. At the time he had the
accident with John Runchey, there was testimony that he smelled of alcohol, was staggering, and had
slurred speech. Both Runchey and Officer Russell believed that defendant was intoxicated. In addition,
defendant was driving with a suspended license. Thus, there was evidence that defendant was a
substantial hazard due to his driving while intoxicated. Considering the serious risk posed by
defendant's history of drunk driving, his sentence was not disproportionate to the circumstances of the
offense or offender.
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Defendant also argues that the court ignored the effect of the consecutive sentence for his parole
violation and the instant offense. However, in determining the proportionality of an individual sentence,
the cumulative effect of consecutive sentences need not be considered. People v Clark, 207 Mich
App 500, 502; 526 NW2d 357 (1994). Accordingly, the trial court did not abuse its discretion in
sentencing defendant.
In reviewing the lower court record in this case, we noticed an error in the judgment of
sentence. The sentencing transcript reveals that defendant was sentenced to three to twenty years’
imprisonment for the fourth habitual offender conviction and one year for the DWLS conviction. The
judgment of sentence incorrectly states that defendant was sentenced to one year for the habitual
offender conviction and three to twenty years for the DWLS offense. We remand for a correction of
the judgment of sentence.
We affirm, but remand for correction of the judgment of sentence.
jurisdiction.
We do not retain
/s/ Richard Allen Griffin
/s/ Richard A. Bandstra
/s/ Meyer Warshawsky
1
The statute was amended in 1994, so that the section that was previously MCL 257.625(6)(d) is
currently MCL 257.625(7)(d), which provides that if a person is convicted of OUIL within ten years of
two or more prior convictions, then that person is guilty of a felony. Although the section numbers
changed after defendant's arrest, the relevant provisions that were applied to defendant's case were
effective at the time of his arrest.
2
Defendant addressed the denial of his motion for a directed verdict and the sufficiency of the evidence
as separate issues, presumably because the standard of review f a directed verdict focuses on the
or
evidence up to the time defendant moved for a directed verdict. However, the standard of review for
sufficiency of the evidence is the same. People v Allay, 171 Mich App 602, 605; 430 NW2d 794
(1988). Moreover, even considering the testimony offered on defendant’s behalf, there was sufficient
evidence from which a rational trier of fact could find that the essential elements of OUIL were proven
beyond a reasonable doubt.
3
Subsections 11 and 12 are now subsections 14 and 16. The substance of the subsections remains
unchanged.
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