PEOPLE OF MI V RONNIE FRANK JONES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 22, 2009
Plaintiff-Appellant,
v
No. 280698
Wayne Circuit Court
LC No. 07-008738-01
RONNIE FRANK JONES,
Defendant-Appellee.
Before: Murphy, P.J., and K.F. Kelly and Donofrio, JJ.
PER CURIAM.
The prosecution appeals as of right from the circuit court’s order granting defendant’s
motion to quash the information and dismissing defendant’s felony prosecution for operating a
motor vehicle while intoxicated, MCL 257.625(9) and (11). We reverse and remand for further
proceedings.
I. Facts and Procedural History
Defendant was charged with one count of operating a motor vehicle while intoxicated
(OWI), MCL 257.625(1), a misdemeanor, for driving while intoxicated on March 22, 2007. As a
misdemeanor, defendant’s potential jail time was limited to 93 days. However, because
defendant has two previous OWI convictions from 1996 and 1997, the prosecutor sought to
charge defendant with a felony pursuant to MCL 257.625(11) or MCL 257.625(9), as amended
by 2006 PA 564, effective January 3, 2007.1 Defendant moved to quash the information, arguing
that application of the amended statute was impermissible under the Ex Post Facto Clause of the
United States Constitution. The circuit court agreed, granted defendant’s motion, and dismissed
the case without prejudice.
II. Standards of Review
We review de novo a trial court’s ruling on a motion to dismiss based on legal grounds.
People v Owen, 251 Mich App 76, 78; 649 NW2d 777 (2002). Further, to the extent that we
1
Before MCL 257.625 was amended, only convictions incurred within the previous ten years
could be considered for enhancement under MCL 257.625(9) and (11).
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interpret constitutional and statutory provisions, our review is de novo. People v Callon, 256
Mich App 312, 315; 662 NW2d 501 (2003).
II. Ex Post Facto Laws
The prosecution argues that the trial court erred by granting defendant’s motion to quash
based on the reasoning that application of the enhanced penalty provisions of MCL 257.625, as
amended, violates the Ex Post Facto Clause. We agree. Both the United States and Michigan
Constitutions prohibit ex post facto laws, or laws that criminalize an act after it has been
committed. US Const, art 1, § 10; Const 1963, art 1, § 10. “All ex post facto laws share two
elements: (1) they attach legal consequences to acts before their effective date, and (2) they work
to the disadvantage of the defendant.” Callon, supra at 318.
MCL 257.625(9) provides, in pertinent part, “If a person is convicted of violating
subsection (1)” and “the violation occurs after 2 or more prior convictions, regardless of the
number of years that have elapsed since any prior conviction, the person is guilty of a felony . . .
.”2 Prior to the current version of MCL 257.625, which became effective on January 3, 2007, a
defendant could be charged with a felony only if his or her prior drunken driving-related offenses
had occurred within the previous ten years. Defendant contends that application of the current
version of the statute to his case violates the prohibition against ex post facto laws, as use of his
prior convictions under the previous statute would have been time-barred. We disagree.
This Court has recently held that the application of MCL 257.925(9), as amended, to new
offenses committed after January 3, 2007 does not violate the state or federal Ex Post Facto
Clauses, regardless of the prior convictions’ dates. People v Perkins, 280 Mich App 244; ___
NW2d ___ (2008). We reasoned that “the [January 3, 2007] amendment [does] not attach legal
consequences to . . . prior offenses, which occurred before the amendment’s effective date.
Rather, the amendment made the consequences of their current offenses, which occurred after
January 3, 2007, more severe on the basis of defendants’ prior convictions.” Id. at 251
(emphasis added).
In denying leave to appeal the Perkins decision, our Supreme Court
explicitly stated, “[W]e AFFIRM the Court of Appeals decision holding that Heidi's Law, MCL
257.625, does not violate the ex post facto provisions of the federal and state Constitutions.”
People v Perkins, ___ Mich ___, ___ NW2d ____ (2008). Accordingly, “the change in the
predicate offenses used to raise current conduct to the felony level does not constitute an ex post
facto violation.” Perkins, supra at 252.
Further, defendant’s argument that consideration of his prior convictions should be timebarred, lest he be deprived of a vested interest, is unavailing. Defendant ignores the fact that the
amended statute does not attach legal consequences to his prior conduct, only to his future
conduct. In addition, defendant fails to cite any legal authority supporting his position that he
2
MCL 257.625(11) similarly provides, in part, “If a person is convicted of violating subsection
(3)” and “the violation occurs after 2 or more prior convictions, regardless of the number of
years that have elapsed since any prior conviction, the person is guilty of a felony . . . .”
Subsection (3) makes it a misdemeanor to operate a motor vehicle while the operator is “visibly
impaired.” MCL 257.625(3).
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has a vested interest in the expiration from consideration of his prior convictions for
enhancement purposes. The circuit court erred in granting defendant’s motion to quash.3
IV. Due Process and Equal Protection
Although not preserved for appeal, defendant further asserts that the application of MCL
257.625(9) and (11), as amended, violates his rights under both the Equal Protection Clause, US
Const, Am XIV, § 1; Const 1963, art 1, § 2, and the Due Process Clause, US Const, Am XIV,
§ 1; Const 1963, art 1, § 17. We may consider unpreserved issues concerning constitutional
matters that present a question of law as to which the necessary facts have been presented.
People v Davis, 250 Mich App 357, 364; 649 NW2d 94 (2002).
“[Generally, n]either the disparate treatment of criminal offenders nor the impingement
of driving privileges is generally viewed as affecting an individual’s fundamental interests.”
People v Haynes, 256 Mich App 341, 345; 664 NW2d 225 (2003). Defendant has not shown,
under the rational basis test, that the enhancement provisions of MCL 257.625, as amended, are
arbitrary and not rationally related to a legitimate government concern. Id. at 346. Rather, the
statute is tailored to apply to repeat OWI offenders and is rationally related to the government’s
unquestionably legitimate purpose: deterring habitual drunk driving.
Id. at 347-348.
Defendant’s due process argument lacks merit for the same reasons: The Legislature’s decision
to amend MCL 257.625 does not represent an arbitrary exercise of its power, but rather a
reasonable decision to deter recidivist drunk driving by making habitual offenders subject to
enhanced punishment should they operate while impaired in the future. Further, as of the date of
the instant offense, defendant had constructive notice pursuant to the effective date of the
amendment, that his prior convictions would subject him to felony prosecution if he operated a
vehicle while impaired. Haynes, supra at 349. Consequently, defendant’s argument that his
equal protection and due process rights were not violated is unavailing.
Reversed and remanded for further proceedings. We do not retain jurisdiction.
/s/ William B. Murphy
/s/ Kirsten Frank Kelly
/s/ Pat M. Donofrio
3
This Court’s decision in Perkins applies equally to the application of MCL 257.625(11), as
amended.
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