PEOPLE OF MI V JAMES RICHARD LARGE
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
JULY 27, 2005
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 126067
DAVID WILLIAM SCHAEFER,
Defendant-Appellee.
________________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 127142
JAMES RICHARD LARGE,
Defendant-Appellee.
_______________________________
BEFORE THE ENTIRE BENCH
YOUNG, J.
We granted leave to appeal in these cases and ordered
that they be argued and submitted together to clarify the
elements
influence
death”),
of
of
MCL
operating
a
liquor
and
257.625(4).
motor
vehicle
causing
In
death
addressing
while
under
(“OUIL
this
the
causing
issue,
we
revisit our decision in People v Lardie,1 which held, inter
alia, that to convict a defendant of OUIL causing death,
the
prosecution
must
prove
“that
the
defendant’s
intoxicated driving was a substantial cause of the victim’s
death.”2
We conclude that the Lardie Court erred in holding
that
the
defendant’s
“intoxicated
driving”3
substantial cause of the victim’s death.
must
be
a
The plain text of
§ 625(4) does not require that the prosecution prove the
defendant’s intoxicated state affected his or her operation
of the motor vehicle.
Indeed, § 625(4) requires no causal
link at all between the defendant’s intoxication and the
victim’s death.
operation
of
intoxicated
death.
The statute requires that the defendant’s
the
manner
The
motor
of
vehicle,
driving,
defendant’s
must
status
as
not
the
cause
defendant’s
the
victim’s
“intoxicated”
is
separate element of the offense of OUIL causing death.
a
It
specifies the class of persons subject to liability under §
625(4):
intoxicated drivers.
1
452 Mich 231; 551 NW2d 656 (1996).
2
Id. at 259-260 (emphasis added).
3
Id. at 234 (emphasis in original).
2
Quite simply, by enacting § 625(4), the Legislature
intended
to
punish
“operating
while
“operating in an intoxicated manner.”
intoxicated,”
not
Therefore, to the
extent that Lardie held that the defendant’s intoxicated
driving must be a substantial cause of the victim’s death,
it is overruled.4
Accordingly,
in
People
v
Schaefer,
we
vacate
the
judgment of the Court of Appeals and remand the case to the
Court of Appeals to address defendant’s remaining argument
that the trial court erred so as to require reversal in
making repeated references to defendant’s stipulation as to
his 0.16 blood-alcohol level during the jury instructions.
In People v Large, we reverse the judgment of the Court of
Appeals
and
remand
the
case
to
the
district
court
for
reconsideration of whether to bind defendant over on the
charge of OUIL causing death in light of the principles set
forth in this opinion.
4
We do not disturb our other holdings in Lardie, including
that the prosecution need not prove negligence or gross
negligence by the defendant, that the defendant must have
“voluntarily” decided to drive “knowing that he had
consumed an intoxicating liquor,” and that § 625(4)
comports with constitutional due process principles.
Id.
at 249-251, 265-267.
3
I. FACTS
AND
PROCEDURAL HISTORY
A. PEOPLE
V
SCHAEFER
In January 2002, defendant was driving on Interstate75
in
the
city
passenger
in
consumed
three
of
the
Lincoln
Park
vehicle.
beers
with
his
Defendant
before
getting
friend
admitted
behind
as
that
the
a
he
wheel.5
According to several eyewitnesses, defendant was tailgating
various cars and driving erratically.
While on the freeway, defendant’s passenger abruptly
told
him
that
they
had
reached
their
freeway
exit.
Defendant swerved to exit the freeway, hit the curb, and
lost control of the car.
passenger.
0.16
The car rolled over, killing the
Defendant stipulated at trial that he had a
blood-alcohol
level
almost
charged
with
three
hours
after
the
causing
death7
and
accident.6
Defendant
was
OUIL
manslaughter with a motor vehicle.8
At trial, a defense
5
Defendant denied drinking the beer contained in the empty
bottles found in his vehicle. He claimed that the bottles
were left over from a party.
6
At the time defendant was charged, § 625(1) set the
statutory intoxication threshold at a blood-alcohol content
of 0.10 grams per one hundred milliliters.
Pursuant to
2003 PA 61, however, the statutory intoxication threshold
has been reduced from 0.10 to 0.08.
7
MCL 257.625(4).
4
expert witness testified that the exit ramp was safe for
speeds up to thirty miles per hour, but dangerous at any
greater
speed.
He
stated
that
he
would
have
expected
numerous accidents, including rollovers, during the thirtysix years that the ramp was in existence and that he was
surprised to learn that there had been no other rollover
accidents in over twenty years.
In
instructing
the
jury,
instead
of
reading
the
standard instruction for OUIL causing death, CJI2d 15.11,9
8
MCL 750.321.
9
CJI2d 15.11 provided at the time:
(1) The defendant is charged with the
crime of operating a motor vehicle under the
influence of intoxicating liquor . . . or
with an unlawful bodily alcohol level, or
while impaired, and in so doing, causing the
death of another person. To prove this
charge, the prosecutor must prove each of the
following elements beyond a reasonable doubt:
*
*
*
(4) Third, that the defendant was under
the influence of intoxicating liquor . . .,
or had an unlawful bodily alcohol level, or
was impaired while [he / she] was operating
the vehicle.
(5) Fourth, that the defendant voluntarily
decided to drive knowing that [he / she] had
consumed
alcohol
.
.
.
and
might
be
intoxicated.
5
the trial court read the text of the OUIL causing death
statute.
When the jury asked for additional instructions
during deliberations, the trial court said all it could do
was tell them what the statute said.
read the statute to the jury.
Thus, the court again
The jury convicted defendant
of OUIL causing death and negligent homicide.10
Defendant
was sentenced to concurrent prison terms of fifty months to
fifteen years for OUIL causing death and one to two years
for negligent homicide.
On appeal, the Court of Appeals affirmed defendant’s
negligent homicide conviction, but reversed his conviction
of OUIL causing death.11
Court
of
Appeals
held
In a two-to-one decision, the
that
the
trial
court
erred
in
instructing the jury because it did not inform the jury
that defendant’s intoxicated driving must be a “substantial
cause” of the victim’s death, as required by Lardie.12
The
(6)
Fifth,
that
the
defendant’s
intoxicated [or impaired] driving was a
substantial cause of the victim’s death.
10
Negligent homicide, MCL 750.324, is a lesser-included
offense of manslaughter with a motor vehicle. MCL 750.325;
People v Weeder, 469 Mich 493, 497-498; 674 NW2d 372
(2004).
11
Unpublished opinion per curiam, issued March 25, 2004
(Docket No. 245175).
12
Id., slip op at 5.
6
dissent concluded that the trial court properly instructed
the jury on the causation element of OUIL causing death by
reading
the
statute
to
the
jury.
We
granted
the
prosecutor’s application for leave to appeal and ordered
that
this
case
be
argued
and
submitted
with
People
v
Large.13
B. PEOPLE
In
July
2003,
while
V
LARGE
driving
on
a
road
in
Jackson
County, defendant struck and killed an eleven-year-old girl
who was riding her bicycle in the late afternoon.
The girl
emerged onto the road after descending from an elevated
driveway, the street view of which was partially obstructed
by vegetation.
have any brakes.
The bicycle that she was riding did not
Defendant was driving approximately five
miles an hour over the posted speed limit of fifty-five
miles per hour.
Despite swerving in an attempt to avoid
hitting the girl, the two collided.
At the time of the
accident, defendant had a 0.10 blood-alcohol level.
Defendant was charged with manslaughter with a motor
vehicle,14 OUIL causing death,15 OUIL (second offense),16 and
13
471 Mich 923 (2004).
14
MCL 750.321.
15
MCL 257.625(4).
7
violation
of
license
restrictions.17
At
defendant’s
preliminary examination, the prosecution called a sheriff’s
deputy
who
testified
reconstruction.
as
an
expert
witness
in
accident
The deputy testified that the accident was
unavoidable, opining that the collision still would have
occurred had defendant been sober and driving the speed
limit.
According to the deputy, a sober driver would have
required at least 1 1/2 seconds to notice the girl and
attempt
to
avoid
hitting
her.
On
the
basis
of
his
investigation, the deputy concluded that the girl emerged
onto the road, and the impact occurred, all within less
than one second.
The district court bound defendant over on all counts
except OUIL causing death.
On appeal to the circuit court,
the court refused to reinstate the charge of OUIL causing
death.18
The prosecution then appealed to the Court of
Appeals, which affirmed the circuit court.19
Relying on
Lardie, the Court of Appeals held that “[t]he prosecution
16
MCL 257.625(1).
17
MCL 257.312.
18
The circuit court also dismissed the manslaughter charge
and remanded the case to the district court on the two
remaining misdemeanor counts.
19
Unpublished opinion per curiam, issued August 10, 2004
(Docket No. 253261).
8
failed to present sufficient evidence to justify a finding
that
defendant’s
intoxicated
driving
was
cause of the victim’s death . . . .”20
a
substantial
In refusing to
entertain the prosecutor’s argument that Lardie was wrongly
decided, the Court of Appeals stated that “‘[a] decision of
the Supreme Court is binding upon this Court until the
Supreme Court overrules itself.’
revisit
the
holding
of
Therefore, we may not
Lardie.”21
We
granted
the
prosecutor’s application for leave to appeal and ordered
that
this
case
be
argued
and
submitted
with
People
v
Schaefer.22
II.
STANDARD
OF
REVIEW
Statutory interpretation is a question of law that is
reviewed
by
this
Court
instructions
that
involve
reviewed
de
novo.24
decision
to
bind
over
In
a
20
Similarly,
questions
reviewing
defendant,
of
a
law
are
district
the
lower
jury
also
court’s
court’s
Id. (citation omitted).
22
novo.23
Id., slip op at 4.
21
de
471 Mich 923 (2004).
23
People v Moore, 470 Mich 56, 61; 679 NW2d 41 (2004);
People v Babcock, 469 Mich 247, 253; 666 NW2d 231 (2003).
24
People v Perez, 469 Mich 415, 418; 670 NW2d 655 (2003);
People v Gonzalez, 468 Mich 636, 641; 664 NW2d 159 (2003).
9
determination regarding the sufficiency of the evidence is
reviewed for an abuse of discretion, but the lower court’s
rulings based on questions of law are reviewed de novo.25
III. ANALYSIS
A.
MCL 257.625(4)
Our Legislature first enacted the “OUIL causing death”
statute as part of 1991 PA 98 in an attempt to increase the
criminal
penalties
intoxicated.26
The
sentences
Legislature
resulting
negligent
associated
homicide
from
with
driving
evidently
involuntary
convictions
while
believed
that
manslaughter
and
inadequately
deterred
intoxicated drivers from getting behind the wheel.27
Thus,
to address this concern, the Legislature enacted the OUIL
causing
death
penalties,
heightened
with
statute,
the
penalties
which
apparent
would
provides
more
expectation
deter
intoxicated
that
severe
these
individuals
from driving.
Our
OUIL
causing
death
statute,
MCL
257.625(4),
provides:
25
People v Yost, 468 Mich 122, 126-127; 659 NW2d 604
(2003); People v Thomas, 438 Mich 448, 452; 475 NW2d 288
(1991).
26
Lardie, supra at 253 & n 33.
27
Id. at 246-247, 253.
10
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:
(a) . . . [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. [28]
B.
PEOPLE
V
LARDIE
In People v Lardie, this Court was presented with a
due process challenge to the OUIL causing death statute.29
The
defendants
in
the
two
consolidated
cases
in
Lardie
alleged that § 625(4) imposed criminal liability without
requiring
defendants’
a
culpable
due
mental
process
state.
arguments,
this
In
rejecting
Court
held
the
that
28
MCL 257.625(4) (emphasis added).
The reference to
subsection 8—intoxication by a schedule 1 controlled
substance—in § 625(4) was added as part of 2003 PA 61. At
the time that defendants Schaefer and Large were charged, §
625(4) referenced only subsections 1 and 3.
29
Although § 625(4) has been amended since our decision in
Lardie, none of the amendments limits the holding of Lardie
or is otherwise material to the resolution of the present
cases.
11
OUIL causing death is a general intent crime and that “the
culpable act that the Legislature wishes to prevent is the
one in which a person becomes intoxicated and then decides
to drive.”30
We further held that “there is no requirement
[under § 625(4)] that the people prove gross negligence or
negligence”
because
“the
Legislature
essentially
has
presumed that driving while intoxicated is gross negligence
as a matter of law.”31
This
Court
then
proceeded
to
examine
the
causation
element of the OUIL causing death offense, stating:
The Legislature passed [§ 625(4)] in order
to reduce the number of alcohol-related
traffic fatalities. The Legislature sought to
deter drivers who are “willing to risk
current penalties” from drinking and driving.
In 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.
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 that resulted. Such an interpretation
of the statute would produce an absurd result
by divorcing the defendant’s fault from the
resulting injury. We seek to avoid such an
interpretation.[32]
30
Lardie, supra at 245. We stated, “[t]he Legislature must
reasonably have intended that the people prove a mens rea
by demonstrating that the defendant purposefully drove
while intoxicated or, in other words, that he had the
general intent to perform the wrongful act.” Id. at 256.
31
Id. at 249, 251.
32
Id. at 256-257 (emphasis in original).
12
Thus, relying on policy justifications and its belief that
a contrary construction would lead to an “absurd result,”
the
Lardie
people
Court
must
held
that
“in
establish
that
proving
the
causation,
particular
the
defendant's
decision to drive while intoxicated produced a change in
that
driver's
operation
of
death of the victim.”33
the
vehicle
that
caused
the
According to the Lardie Court,
“[i]t is the change that such intoxication produces, and
whether it caused the death, which is the focus of [the
causation] element of the crime.”34
The
elements
Lardie
the
Court
summarized
prosecution
must
the
prove
three
in
distinct
securing
a
conviction for OUIL causing death:
(1) [That] the defendant was operating his
motor vehicle while he was intoxicated, (2)
that he voluntarily decided to drive knowing
that he had consumed alcohol and might be
intoxicated, and (3) that the defendant's
intoxicated driving was a substantial cause
of the victim's death.[35]
C.
PRINCIPLES
OF
STATUTORY INTERPRETATION
When interpreting a statute, it is the court’s duty to
give effect to the intent of the Legislature as expressed
33
Id. at 258 (emphasis added).
34
Id. at 258 n 47 (emphasis in original).
35
Id. at 259-260 (emphasis added).
13
in the actual language used in the statute.36
It is the
role of the judiciary to interpret, not write, the law.37 If
the
statutory
language
is
clear
and
unambiguous,
the
statute is enforced as written.38 Judicial construction is
neither necessary nor permitted because it is presumed that
the Legislature intended the clear meaning it expressed.39
D.
THE CAUSATION ELEMENT
OF
§ 625(4)
The plain text of § 625(4) requires no causal link
between
death.40
licensed
the
defendant’s
Section
or
not,
625(4)
who
intoxication
provides,
operates
a
and
“A
motor
the
person,
vehicle
victim’s
whether
[while
intoxicated] and by the operation of that motor vehicle
36
Halloran v Bhan, 470 Mich 572, 576; 683 NW2d 129 (2004);
DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d
300 (2000).
37
Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645
NW2d 34 (2002); State Farm Fire & Cas Co v Old Republic Ins
Co, 466 Mich 142, 146; 644 NW2d 715 (2002).
38
People v Laney, 470 Mich 267, 271; 680 NW2d 888 (2004);
People v Phillips, 469 Mich 390, 395; 666 NW2d 657 (2003).
39
Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d
663 (2002); People v Stone, 463 Mich 558, 562; 621 NW2d 702
(2001).
40
Defendant Schaefer admits this point, stating that “[a]
bare reading of the statute does not require that the
defendant’s intoxicated driving be a substantial cause of
the victim’s death.” Schaefer brief at 12-13 (emphasis in
original).
He further states, “[t]he statute does not
require a nexus between the drunken driving, and the cause
of the accident.” Id. at 15.
14
causes the death of another person is guilty of a crime
. . . .”41
Accordingly, it is the defendant’s operation of
the motor vehicle that must cause the victim’s death, not
the defendant’s “intoxication.”
While a defendant’s status
as “intoxicated” is certainly an element of the offense of
OUIL causing death, it is not a component of the causation
element of the offense.
Justice Weaver succinctly stated
this point in her concurrence in Lardie:
The plain language of the statute clearly
indicates
that
the
Legislature
intended
causation to turn on the fact that the
defendant
operated
the
vehicle
while
intoxicated, rather than the changed manner
in which, or how, the defendant operated the
vehicle while intoxicated.[42]
The Lardie Court’s reliance on policy considerations
in construing § 625(4) was misplaced.
It is true that the
cardinal rule of statutory interpretation is to give effect
to
the
intent
of
the
Legislature.43
However,
the
Legislature’s intent must be ascertained from the actual
text
of
the
statute,
not
from
extra-textual
41
MCL 257.625(4) (emphasis added).
42
judicial
Lardie, supra at 273 (emphasis in original).
43
Grossman v Brown, 470 Mich 593, 598; 685 NW2d 198 (2004);
Parkwood Ltd Dividend Housing Ass'n v State Housing Dev
Auth, 468 Mich 763, 772; 664 NW2d 185 (2003).
15
divinations of “what the Legislature really meant.”44
As we
stated in Lansing Mayor, supra, “rather than engaging in
legislative mind-reading to discern [legislative intent],
we
believe
that
the
best
measure
of
the
Legislature's
intent is simply the words that it has chosen to enact into
law.”45
The Lardie Court also erred in assuming that judicial
adherence to and application of the actual text of § 625(4)
“would produce an absurd result.”
Court
in
Lardie
viewed
as
The result that the
“absurd”–imposing
criminal
liability under § 625(4) when a victim’s death is caused by
a
defendant’s
operation
of
the
vehicle
rather
than
the
defendant's intoxicated operation–reflects a policy choice
adopted by a majority of the Legislature.
A court is not
free to cast aside a specific policy choice adopted on
behalf
of
the
people
of
the
state
by
their
elected
representatives in the Legislature simply because the court
would prefer a different policy choice. To do so would be
to
empower
the
least
politically
accountable
government with unbridled policymaking power.
44
branch
of
Such a model
See Lansing Mayor v Pub Service Comm, 470 Mich 154, 164;
680 NW2d 840 (2004); Robertson v DaimlerChrysler Corp, 465
Mich 732, 762; 641 NW2d 567 (2002).
45
Lansing Mayor, supra at 164.
16
of government was not envisioned by the people of Michigan
in ratifying our Constitution, and modifying our structure
of government by judicial fiat will not be endorsed by this
Court.
Instead, we must construe the causation element of §
625(4)
according
to
the
actual
text
of
the
statute.
Section 625(4) plainly requires that the victim’s death be
caused by the defendant’s operation of the vehicle, not the
defendant’s
which
the
operation
element
intoxicated
defendant’s
of
of
operation.
Thus,
intoxication
the
vehicle
the
crime.
is
affected
unrelated
The
the
to
his
the
defendant’s
manner
or
in
her
causation
status
as
“intoxicated” is a separate element of the offense used to
identify the class of persons subject to liability under §
625(4).46
46
The flaw in the Lardie Court’s analysis is readily
apparent when one considers the closely analogous crime of
operating a vehicle with a suspended or revoked license and
causing death.
MCL 257.904(4).
The text of § 904(4)
parallels the language in § 625(4).
Section 904(4)
provides:
A person who operates a motor vehicle
[under a suspended or revoked license] and
who, by operation of that motor vehicle,
causes the death of another person is guilty
of a felony . . . . [Emphasis added.]
Under the Lardie Court’s rationale, § 904(4) would
require that the defendant’s suspension or revocation
somehow affect (i.e., be a “substantial cause” of) the
17
Accordingly, we overrule Lardie only to the extent it
held that the prosecution must prove “that the defendant’s
intoxicated driving was a substantial cause of the victim’s
death.”47
causing
that
We hold that the prosecution, in proving OUIL
death,
must
establish
beyond
a
reasonable
doubt
(1) the defendant was operating his or her motor
vehicle in violation of MCL 257.625(1), (3), or (8); (2)
the defendant voluntarily decided to drive, knowing that he
or she had consumed an intoxicating agent and might be
intoxicated; and (3) the defendant’s operation of the motor
vehicle caused the victim’s death.48
It is ironic that the Lardie Court recognized that the
Legislature’s
intent
in
passing
§
625(4)
was
“to
deter
manner by which the defendant operates the vehicle before
criminal liability may be imposed.
There is obviously no
textual basis for such a conclusion, just as there was no
such basis in Lardie. As Justice Weaver pointed out in her
concurrence in Lardie, the Lardie majority fundamentally
misunderstood the nature of a “status crime.”
Lardie,
supra at 271 n 8. The Lardie majority mistakenly took the
status element of the crime—that the defendant was
intoxicated—and fused it with the causation element of the
offense.
Therefore, to the extent that the Lardie Court
was simply attempting to articulate a proximate cause
requirement by creating its “substantial cause” test, the
Lardie
Court
erred
in
conflating
the
“status”
and
“causation” elements of the crime.
47
Lardie, supra at 259-260 (emphasis added). As mentioned
in note 4 of this opinion, we do not disturb the other
holdings in Lardie.
48
MCL 257.625(4); cf. Lardie, supra at 259.
18
th[e]
gravely
dangerous
conduct”49
of
driving
while
intoxicated, yet interpreted § 625(4) in such a way so as
to limit substantially the applicability of § 625(4) beyond
that which the Legislature envisioned.
As Justice Weaver
noted
Lardie
in
her
Lardie
concurrence,
the
majority’s
“demanding burden of proof”–requiring the prosecution to
show that the defendant’s intoxication changed his or her
manner of operation–“was not intended by the Legislature
and is not found in the language of the statute.”50 Unlike
the Lardie Court, we believe that the best way to “deter
this gravely dangerous conduct” is to enforce the statute
as written and thereby give the statute the teeth that the
Legislature intended.51
Having determined that § 625(4) requires the victim’s
death to be caused by the defendant’s
49
of the
Lardie, supra at 253.
50
operation
Id. at 272.
51
As we noted in Robinson v Detroit, 462 Mich 439, 463468; 613 NW2d 307 (2000), we do not lightly overrule
precedent.
However, we do not believe that any of the
considerations
discussed
in
Robinson
counsel
against
overruling Lardie in the present cases.
Notably, we find
it difficult to conceive any possible situation in which a
“reliance interest” would ever exist in the context of a
criminal statute. Additionally, as noted by Justice Weaver
in Lardie, the majority opinion in Lardie defies “practical
workability” because the “change” in operating ability due
to intoxication that the prosecution must demonstrate
creates a nearly impossible burden of proof.
19
vehicle, rather than the defendant’s intoxicated manner of
operation,
we
turn
to
the
issue
of
defining
the
term
“cause.”
In the criminal law context, the word “cause” has
acquired
a
unique,
technical
meaning.52
Accordingly,
pursuant to MCL 8.3a, we must construe the term “according
to [its] peculiar and appropriate meaning” in the law.53
In criminal jurisprudence, the causation element of an
offense is generally comprised of two components:
cause
and
proximate
cause.54
The
concept
causation is relatively straightforward.
of
factual
factual
In determining
whether a defendant’s conduct is a factual cause of the
52
Indeed, for more than a century, this Court has
recognized that “cause” is a term of art in criminal law.
See People v Cook, 39 Mich 236 (1878); People v Rockwell,
39 Mich 503 (1878); People v Townsend, 214 Mich 267, 277280; 183 NW 177 (1921).
53
MCL 8.3a provides:
All words and phrases shall be construed
and understood according to the common and
approved usage of the language; but technical
words and phrases, and such as may have
acquired a peculiar and appropriate meaning
in the law, shall be construed and understood
according to such peculiar and appropriate
meaning. [Emphasis added.]
See also Babcock, supra at 257-258; People v Jones, 467
Mich 301, 304-305; 651 NW2d 906 (2002).
54
People v Tims, 449 Mich 83, 95; 534 NW2d 675 (1995); see
also 1 Torcia, Wharton’s Criminal Law (15th ed), § 26;
LaFave & Scott, Handbook on Criminal Law, § 35, p 246.
20
result, one must ask, “but for” the defendant’s conduct,
would the result have occurred?55
If the result would not
have occurred absent the defendant’s conduct, then factual
causation exists.56
The
existence
of
factual
causation
alone,
however,
will not support the imposition of criminal liability.57
Proximate causation must also be established.
As we noted
in Tims, proximate causation is a “legal colloquialism.”58
It
is
a
legal
construct
designed
to
prevent
criminal
liability from attaching when the result of the defendant’s
conduct is viewed as too remote or unnatural.59
Thus, a
55
Tims, supra at 95; People v Barnes, 182 Mich 179, 194;
148 NW 400 (1914); see also 1 Torcia, Wharton’s Criminal
Law (15th ed), § 26; Perkins, Criminal Law (2d ed), pp 687688; LaFave & Scott, Handbook on Criminal Law, § 35, p 249
(1972) (“In order that conduct be the [factual] cause of a
particular result it is almost always sufficient that the
result would not have happened in the absence of the
conduct; or, putting it another way, that “but for” the
antecedent conduct the result would not have occurred.”).
56
Tims, supra at 95.
57
Tims, supra at 95.
58
Id. at 96.
59
See, e.g., Beale, The proximate consequences of an act,
33 Harv L R 633, 640 (1920).
21
proximate cause is simply a factual cause “of which the law
will take cognizance.”60
For
a
defendant’s
conduct
to
be
regarded
as
a
proximate cause, the victim’s injury must be a “direct and
natural result” of the defendant’s actions.61
this
determination,
there
was
an
it
is
intervening
necessary
cause
to
that
In making
examine
whether
superseded
the
defendant’s conduct such that the causal link between the
defendant’s conduct and the victim’s injury was broken.
If
an intervening cause did indeed supersede the defendant’s
act
as
a
legally
significant
causal
factor,
then
the
defendant’s conduct will not be deemed a proximate cause of
the victim’s injury.62
The standard by which to gauge whether an intervening
cause
supersedes,
and
thus
severs
the
causal
generally one of reasonable foreseeability.
link,
is
For example,
suppose that a defendant stabs a victim and the victim is
60
1 Torcia, Wharton’s Criminal Law (15th ed), § 26, pp 147148; See also Perkins, Criminal Law (2d ed), p 690.
61
Barnes, supra at 198; see also 1 Torcia, Wharton’s
Criminal Law (15th ed), § 26; Perkins, Criminal Law (2d
ed), pp 690-695; LaFave & Scott, Handbook on Criminal Law,
§ 35, pp 251-252 (1972); McLaughlin, Proximate cause, 39
Harv L R 149, 183 (1925).
62
Cook, supra at 239-240; Townsend, supra at 277-279;
People v Vanderford, 77 Mich App 370, 372-373; 258 NW2d 502
(1977).
22
then taken to a nearby hospital for treatment.
If the
physician is negligent in providing medical care to the
victim and the victim later dies, the defendant is still
considered to have proximately caused the victim’s death
because it is reasonably foreseeable that negligent medical
care
might
negligence
physician
break
the
provided.63
be
or
is
At
intentional
not
causal
same
misconduct
reasonably
chain
the
foreseeable,
between
the
by
time,
a
and
gross
treating
would
defendant
thus
and
the
victim.64
The
linchpin
in
the
superseding
cause
analysis,
therefore, is whether the intervening cause was foreseeable
based on an objective standard of reasonableness.
If it
was reasonably foreseeable, then the defendant’s conduct
will be considered a proximate cause.
If, however, the
intervening act by the victim or a third party was not
reasonably
foreseeable—e.g.,
gross
negligence
or
63
Cook, supra at 240. See also Perkins, Criminal Law (2d
ed), p 716 (“And negligence, unfortunately, is entirely too
frequent in human conduct to be considered ‘abnormal.’”);
LaFave & Scott, Handbook on Criminal Law, § 35, p 259 (“In
short, mere negligence in medical treatment is not so
abnormal
that
the
defendant
should
be
freed
of
liability.”).
64
Cook, supra at 240. See also Perkins, Criminal Law (2d
ed), p 719; LaFave & Scott, Handbook on Criminal Law, § 35,
p 259.
23
intentional misconduct—then generally the causal link is
severed and the defendant’s conduct is not regarded as a
proximate cause of the victim’s injury or death.
In criminal law, “gross negligence” is not merely an
elevated or enhanced form of ordinary negligence.
As we
held
gross
in
Barnes,
negligence
supra,
“means
consequences
in
criminal
wantonness
which
may
ensue,
jurisprudence,
and
disregard
and
of
indifference
the
to
the
rights of others that is equivalent to a criminal intent.”65
Accordingly,
in
examining
the
causation
element
of
OUIL causing death, it must first be determined whether the
defendant’s operation of the vehicle was a factual cause of
the victim’s death.
it
must
then
be
If factual causation is established,
determined
whether
the
defendant’s
operation of the vehicle was a proximate cause.
so,
one
must
inquire
whether
the
victim’s
In doing
death
was
a
direct and natural result of the defendant’s operation of
the
vehicle
and
whether
an
intervening
cause
superseded and thus severed the causal link.66
65
may
have
While an act
Barnes, supra at 198.
66
Justice Cavanagh suggests in his partial dissent that
both the Lardie Court and the majority in the present cases
require a “more demanding standard” of proximate cause in
the criminal context than that found in tort law. Post at
2.
Justice Cavanagh mischaracterizes both Lardie and the
present cases. First, we do not read Lardie to impose the
24
of God or the gross negligence or intentional misconduct by
the victim or a third party will generally be considered a
superseding cause, ordinary negligence by the victim or a
third party will not be regarded as a superseding cause
because ordinary negligence is reasonably foreseeable.67
heightened form of proximate cause in criminal law that
Justice Cavanagh advocates.
In fact, in Tims, which was
decided just one year before Lardie, we explicitly rejected
that same argument. Second, contrary to Justice Cavanagh’s
assertion, we do not adopt a heightened form of proximate
cause in the present cases.
Instead, we are simply
applying the standard of proximate cause that this Court
articulated in Tims and that has existed in our criminal
jurisprudence for well over a century.
67
Had the Legislature intended to require only factual
causation and not proximate causation as well, the
Legislature would have instead used the words “results in
death” rather than “causes the death.”
Indeed, MCL 257.617, which requires motorists involved
in accidents to remain at the scene of the accident,
specifically uses the phrase “results in . . . death.”
Section 617(2) provides:
[I]f the individual [flees the scene of
an accident] and the accident results in
serious impairment of a body function or
death, the individual is guilty of a felony
punishable by imprisonment for not more than
5 years or by a fine of not more than
$5,000.00, or both. [Emphasis added.]
Accordingly, the Legislature is well aware of how to draft
a statute that requires only factual causation and not
proximate causation.
The United States Court of Appeals reached the same
conclusion in construing an analogous federal criminal
statute:
distribution of a controlled substance resulting
in death, 21 USC 841.
Specifically § 841(a)(1) makes it
25
E.
i.
Defendant
argues
APPLICATION
PEOPLE
that
V
SCHAEFER
the
trial
court
erred
in
instructing the jury on OUIL causing death in two respects.
First,
defendant
instruction
on
the
contends
that
causation
the
element
of
trial
the
court’s
crime
was
illegal to “knowingly or intentionally . . . distribute
. . . a controlled substance” and § 841(b)(1)(C) provides
an enhanced sentence “if death or serious bodily injury
results from the use of such substance . . . .” (Emphasis
added.) In recently addressing the proximate cause issue,
the United States Court of Appeals for the Ninth Circuit
held:
[P]roximate cause is not a required
element for conviction and sentencing under §
841(b)(1)(C). All that is necessary under the
statutory language is that “death . . .
results”
from
the
offense
described
in
§ 841(a)(1). . . . Cause-in-fact is required
by the “results” language, but proximate
cause . . . is not a required element.
[United States v Houston, 406 F3d 1121, 11241125 (CA 9, 2005).]
In so holding, the Ninth Circuit joined numerous other
circuits that reached the same conclusion.
See United
States v Soler, 275 F3d 146, 152 (CA 1, 2002); United
States v McIntosh, 236 F3d 968, 972-973 (CA 8, 2001);
United States v Robinson, 167 F3d 824, 830-832 (CA 3,
1999); United States v Patterson, 38 F3d 139, 145-146 (CA
4, 1994).
Therefore,
if
the
Legislature
had
intended
to
eliminate proximate causation as an element of OUIL causing
death, it would have used the phrase “and by the operation
of that motor vehicle the death of another person results.”
The Legislature, however, deliberately chose to use the
word “cause” in § 625(4) and thereby incorporated the
technical, legal meaning of the term.
26
flawed.
erred
Second,
when
it
defendant
reminded
argues
the
that
jury
the
three
trial
times
court
during
instructions about defendant’s stipulation as to his 0.16
blood-alcohol level.
In
initially
instructing
the
jury
on
the
causation
element of OUIL causing death, the trial court read the
text of § 625(4) to the jury.
Defendant objected to the
instruction, arguing that the standard jury instruction for
OUIL causing death, CJI2d 15.11, which incorporated this
Court’s
Lardie
holding,
should
have
been
read
instead.
Less than an hour into deliberations, the jury specifically
requested
clarification
from
the
trial
court
on
causation element of OUIL causing death:
The Court: Okay.
You’re asking to explain
under
the
influence,
as
is
stated in Count I [OUIL causing
death]. [I]s that what you want
to know?
Also causing death.
Juror No. 11:
The Court:
I’m sorry; also what?
Juror No. 11:
Under the influence causing
death.
The Court:
Yeah, okay.
All I can do is
tell you what the statute says.
If that was the case, you have
to
decide
that.
[Emphasis
added.]
27
the
Defendant again objected to the instruction, arguing that
the trial court did not adequately explain the causation
element of OUIL causing death.
We agree that the trial court erred in instructing the
jury
on
causation,
defendant.
but
not
for
the
reasons
offered
by
Defendant argues that the causation instruction
was flawed because the trial court did not instruct the
jury
that
defendant’s
intoxicated
driving
must
be
a
“substantial cause” of the victim’s death, as required by
Lardie.
As discussed above, the
requiring that the defendant’s
Lardie
Court erred in
intoxication, rather than
the defendant’s operation of the motor vehicle, constitute
the
substantial
cause.
Accordingly,
the
trial
court’s
causation instruction was not flawed in the manner asserted
by defendant.
Instead, we conclude that the trial court
erred because the word “cause” in § 625(4) is a legal term
of
art
normally
not
within
the
common
understanding
of
jurors, and thus, simply reading the statute to the jury
was
insufficient.
understand
that
the
The
jury
statute
could
not
required
be
the
expected
to
prosecutor
to
prove both factual causation and proximate causation.68
68
While the trial court was not required to read the
jury the standard criminal jury instruction because they
are not binding authority, People v Petrella, 424 Mich 221,
277; 380 NW2d 11 (1985), the court was nevertheless
28
Having determined that the causation instruction was
flawed, we turn to whether the error was harmless.
Mere
error alone in instructing the jury is insufficient to set
aside a criminal conviction.
establish
that
the
erroneous
miscarriage of justice.”69
Instead, a defendant must
instruction
resulted
in
“a
Specifically, by enacting MCL
769.26, our Legislature has provided:
No judgment or verdict shall be set
aside or reversed or a new trial be granted
by any court of this state in any criminal
case, on the ground of misdirection of the
jury, or the improper admission or rejection
of evidence, or for error as to any matter of
pleading or procedure, unless in the opinion
of the court, after an examination of the
entire cause, it shall affirmatively appear
that the error complained of has resulted in
a miscarriage of justice.[70]
As we noted in People v Cornell,71 in giving effect to
the
“miscarriage
of
justice”
standard
of
MCL
769.26,
a
obligated to “instruct the jury as to the law applicable to
the case”.
MCL 768.29.
While reading the applicable
statute to the jury may well be instructing the jury as to
the law applicable to the case in most circumstances, it
was not here because the statute contained a term of art
jurors are not presumed to understand, i.e., a jury would
not understand from a reading of the statute that the
existence of factual causation alone would be insufficient
to support a guilty verdict.
69
MCL 769.26; People v Young, 472 Mich 130, 141-142; 693
NW2d 801 (2005).
70
MCL 769.26 (emphasis added).
71
466 Mich 335; 646 NW2d 127 (2002).
29
reviewing court is required to classify the type of alleged
instructional
error
as
either
constitutional
or
nonconstitutional, and as either preserved or unpreserved.72
In Cornell, we held that instructional error based on the
misapplication
of
nonconstitutional
a
statute
error.73
As
is
generally
such,
any
considered
error
that
the
trial court committed in the present case in failing to
explain
the
causation
nonconstitutional.
element
Moreover,
of
because
§
625(4)
defendant
was
promptly
objected to the instruction and adequately articulated the
basis for the objection, the alleged error was properly
preserved.
Accordingly, the alleged instructional error in this
case
is
appropriately
classified
as
preserved,
nonconstitutional error, as noted by the Court of Appeals.
In People v Lukity,74 we held that MCL 769.26 creates a
presumption
that
preserved
nonconstitutional
error
is
harmless unless the defendant demonstrates that the error
72
Id. at 362-363, citing People v Carines, 460 Mich 750;
597 NW2d 130 (1999). Constitutional errors must further be
classified as either structural or nonstructural. Cornell,
supra at 363.
73
Id. at 364-365; see also People v Rodriguez, 463 Mich
466, 473-474; 620 NW2d 13 (2000).
74
460 Mich 484; 596 NW2d 607 (1999).
30
was outcome determinative.75
stated
that
MCL
769.26
Specifically, in
“presumes
that
a
Lukity
we
preserved,
nonconstitutional error is not a ground for reversal unless
‘after
an
examination
of
the
entire
cause,
it
shall
affirmatively appear’ that it is more probable than not
that the error was outcome determinative.”76
not
“outcome
determinative”
unless
it
An error is
“‘undermined
the
reliability of the verdict.’”77
Applying
the
Lukity
standard
to
the
alleged
instructional error in the present case, we conclude that
any error on the part of the trial court in merely reading
the statute and failing to explain the causation element of
OUIL causing death was harmless.
There is no evidence that
the trial court’s failure to explain fully both the factual
cause
and
proximate
cause
components
of
the
causation
element of the offense was “outcome determinative” or that
the “reliability of the verdict was undermined.”
75
Id. at 495-496.
76
Id. (citation omitted).
77
People v Whittaker, 465 Mich 422, 427; 635 NW2d 687
(2001), quoting People v Elston, 462 Mich 751, 766; 614
NW2d 595 (2000).
Recent cases where we found that
instructional error required reversal include People v
Mass, 464 Mich 615; 628 NW2d 540 (2001), People v Duncan,
462 Mich 47; 610 NW2d 551 (2000), and People v Rodriguez,
supra.
31
Assuming, arguendo, that the jury gave full credit to
the
testimony
of
defendant’s
expert
witness
on
highway
design, the most that the witness’s testimony established
was that the freeway exit was negligently designed.
witness
presented
no
evidence
that
there
was
negligence in the design of the freeway exit.
design
of
the
freeway
exit
could
not
be
any
The
gross
As such, the
considered
a
superseding cause that would prevent defendant from being
legally
regarded
death.
We conclude, therefore, that defendant has failed
to
rebut
the
as
a
proximate
presumption
that
cause
the
of
alleged
the
victim’s
instructional
error was harmless because he has not demonstrated that the
alleged
error
was
outcome
determinative
in
that
it
undermined the reliability of the verdict, as required by
MCL 769.26 and Lukity.78
Defendant also argues that the trial court committed
error requiring reversal when it reminded the jury three
times during instructions about defendant’s stipulation as
to his 0.16 blood-alcohol level.79
However, the Court of
78
As noted earlier, defendant’s expert witness admitted at
trial that his defective design theory was inconsistent
with the actual history of accidents associated with the
exit ramp.
79
Schaefer brief at 26 (“the judge reminded the jurors that
the parties stipulated that the Defendant’s blood alcohol
32
Appeals declined to address this argument in light of its
resolution of this case.
Accordingly, we remand this case
to the Court of Appeals limited solely to the issue of
whether the trial court committed error requiring reversal
in making repeated references to the stipulation regarding
defendant’s
blood-alcohol
level.80
We
do
not
retain
jurisdiction.81
level was 0.16.
The reminder of the stipulation is used
three times in this instruction . . . .”).
80
Justice Cavanagh’s ex post facto and due process concerns
are misplaced.
As the United States Supreme Court has
held, “The Ex Post Facto Clause, by its own terms, does not
apply to courts.
Extending the Clause to courts through
the rubric of due process thus would circumvent the clear
constitutional text.” Rogers v Tennessee, 532 US 451, 460;
121 S Ct 1693; 149 L Ed 2d 697 (2001).
Although it is
true, as Justice Cavanagh indicates, that prior precedent
from the United States Supreme Court and this Court has
held that there are due process limitations on the
retroactive application of judicial interpretations of
criminal statutes that are “unexpected and indefensible by
reference to the law which had been expressed prior to the
conduct in issue,” Post at 6, we believe that it is not
“indefensible or unexpected” that a court would, as we do
today, overrule a case that failed to abide by the express
terms of a statute.
81
Because we conclude that the trial court’s other
instructional errors were harmless, the Court of Appeals is
to consider on remand only whether the trial court’s
multiple references to the stipulation constituted error
requiring reversal—i.e., that a “miscarriage of justice”
occurred, as required by MCL 769.26 and Lukity.
If the
Court of Appeals determines that no “miscarriage of
justice” occurred, defendant’s conviction of OUIL causing
death is to be affirmed.
33
ii.
PEOPLE
V
LARGE
The first two elements of OUIL causing death are not
in dispute.
and
he
Defendant’s blood-alcohol level was 0.10 grams
voluntarily
consumed alcohol.
chose
to
drive
knowing
that
he
had
The uncertainty lies in the causation
element of the offense.
Defendant’s operation of the vehicle was undeniably a
factual
cause
of
the
young
girl’s
death.
Absent
defendant’s operation of the vehicle, the collision would
not
have
occurred.
however,
is
less
victim’s
death
The
issue
certain.
was
the
of
There
direct
proximate
is
and
defendant’s operation of the vehicle.
causation,
evidence
natural
that
the
result
of
At the same time,
the victim rode a bicycle without brakes down a partially
obstructed hill onto a busy road and, thus, according to
the prosecution’s own expert witness, made the collision
unavoidable.
examination
Given the fact that during the preliminary
the
parties
did
not
directly
address
the
proximate cause issue, including whether the victim’s own
behavior was a superseding cause, the proper course is to
remand this case to the district court for reconsideration
of
whether
to
bind
over
defendant
principles discussed in this opinion.
jurisdiction.
34
in
light
of
the
We do not retain
IV.
CONCLUSION
The Lardie Court erred in holding that the defendant’s
“intoxicated driving” must be a substantial cause of the
victim’s death.
There is no textual basis for the Lardie
Court’s holding.
Indeed, the plain text of the OUIL causing
death statute requires no causal link at all between the
defendant’s
intoxication
and
the
victim’s
death.
The
defendant’s status as “intoxicated” is a separate element of
the offense and entirely irrelevant to the causation element
of the crime.
It is the defendant’s operation of the motor
vehicle that must cause the victim’s death under § 625(4),
not the manner by which the defendant’s intoxication may or
may
not
have
affected
the
defendant's
Therefore, to the extent that
requires
the
defendant’s
Lardie
intoxicated
operating
ability.
held that § 625(4)
driving
to
be
a
substantial cause of the victim’s death, it is overruled.
In proving the causation element of OUIL causing death, the
people need only prove that the defendant’s operation of the
motor vehicle caused, both factually and proximately, the
victim’s death.
Accordingly, in People v Schaefer, the judgment of the
Court of Appeals is vacated and the case is remanded to the
Court of Appeals to address defendant’s remaining argument
that the trial court erred so as to require reversal in
35
making repeated references to defendant’s stipulation as to
his 0.16 blood-alcohol level during the jury instructions.
In People v Large, the judgment of the Court of Appeals is
reversed and the case is remanded to the district court for
reconsideration of whether to bind defendant over on the
charge of OUIL causing death in light of the principles set
forth in this opinion.
We do not retain jurisdiction in
either case.
Robert P. Young, Jr.
Clifford W. Taylor
Elizabeth A. Weaver
Maura D. Corrigan
Stephen J. Markman
36
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 126067
DAVID WILLIAM SCHAEFER,
Defendant-Appellee.
_______________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 127142
JAMES RICHARD LARGE,
Defendant-Appellee.
_______________________________
WEAVER, J. (concurring).
I
join
in
the
majority’s
application in these cases.
holding,
analysis,
and
As the majority concludes—and
as I urged in my separate concurrence in People v Lardie,
452 Mich 231, 267; 551 NW2d 656 (1996)—a proper reading of
the
statute
prohibiting
OUIL
causing
death
is
that
it
criminalizes a death caused by a person operating a car
while intoxicated, regardless of the manner of operation.
I
write
separately
to
note
that
the
same
careful
consideration of the OUIL statutory text that results in
the above conclusion demands I reconsider another point I
made in my Lardie concurrence.
Specifically,
I
suggested
in
Lardie
that
showing
proximate cause was not necessary to prove OUIL causing
death.
Lardie, supra at 268 n 5, 273 n 11.
However, now
that the issue is squarely before the Court, and I have
reexamined the language of the statute in the two cases
before us, I now agree that the Legislature’s use of the
term
“causes
the
death”
indicates
that
the
common-law
meaning of “cause” must be used, and both cause in fact and
proximate cause need to be shown.
The
doubt
of
dangers
concern
of
to
driving
the
under
the
influence
are
Legislature;
however,
as
no
the
majority indicates, had the Legislature wanted to remove a
showing of proximate cause from the
statute prohibiting
OUIL causing death, it could have used the term “resulting
in the death” instead.
Elizabeth A. Weaver
2
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 126067
DAVID WILLIAM SCHAEFER,
Defendant-Appellee.
_______________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 127142
JAMES RICHARD LARGE,
Defendant-Appellee.
_______________________________
CORRIGAN, J. (concurring).
I concur in and join every aspect of the majority
opinion.
I
write
separately
to
suggest
an
analytic
approach to the sole remaining issue to be resolved on
remand in People v Schaefer, i.e., whether the trial court
committed
jury
error
three
stipulation
grams.
requiring
times
during
regarding
his
reversal
when
instructions
it
about
blood-alcohol
reminded
the
defendant’s
level
of
0.16
As the majority correctly observes, ante at 33 n 81,
in
determining
stipulation
Court
of
whether
the
constitute
Appeals
an
should
multiple
error
references
requiring
consider
whether
to
the
reversal,
the
defendant
has
established that a “miscarriage of justice” occurred, as
required by MCL 769.26 and People v Lukity, 460 Mich 484;
596 NW2d 607 (1999).
In
assessing
occurred,
I
believe
whether
it
is
a
miscarriage
noteworthy
that
of
justice
defendant
is
mistaken in assuming that his blood-alcohol level at the
time of the accident is the sole factor that the jury was
entitled to consider in finding that he was intoxicated.
MCL 257.625(1) clearly provides two independent bases on
which
the
jury
intoxicated.
could
have
concluded
Specifically,
at
the
that
defendant
was
time
defendant
was
charged, § 625(1) provided that a defendant is considered
intoxicated for the purpose of OUIL causing death if either
of the following applies:
(a) The person is under the influence of
intoxicating liquor, a controlled substance, or
a combination of intoxicating liquor and a
controlled substance.
(b) The person has an alcohol content of
0.10 grams or more per 100 milliliters of
blood, per 210 liters of breath, or per 67
milliliters of urine.
2
Thus, pursuant to § 625(1), the jury could have found that
defendant was intoxicated either on the basis of evidence
of
defendant’s
blood-alcohol
level,
or
on
the
basis
of
evidence presented at trial demonstrating that defendant
was “under the influence of intoxicating liquor.”
In instructing the jury, the trial court repeatedly
informed the jury of these two alternative bases:
The Court:
So, the elements are
either
operating under the influence,
that’s one.
Or, operating a
motor vehicle while the blood
alcohol content is 0.10.
*
*
*
It’s either driving under the
influence, or driving with a
blood alcohol content of 0.10.
And as a result of so operating
a motor vehicle, causes the
death of another person.
Those are the elements of Count
1 [OUIL causing death]. . . .
*
*
*
So, if you find in Count 1 [OUIL
causing
death]
that
the
defendant
operated
a
motor
vehicle under the influence of
intoxicants, or that he at the
time had a blood alcohol level
in excess of .10. And that as a
result of that, a person was
killed.
That is what you call
homicide caused by driving under
the
influence.
[Emphasis
added.]
3
Moreover, the trial court explicitly instructed the
jury that it was free to reject defendant’s stipulation
about
his
court
told
blood-alcohol
the
stipulation],
jury,
or
you
level.
“You
have
Specifically,
have
a
a
right
right
to
to
the
trial
accept
[the
it.
It’s
reject
entirely up to you.”
It is thus quite possible that the
jury
chose
completely
about
his
to
ignore
blood-alcohol
level
defendant’s
when
it
stipulation
found
defendant
guilty of OUIL causing death.1
1
The prosecution presented various evidence at trial to
demonstrate that defendant was “under the influence of
intoxicating liquor,” pursuant to § 625(1)(a).
First,
defendant himself admitted that he consumed at least three
beers before getting behind the wheel.
Defendant also
admitted that his blood-alcohol level was 0.16 grams less
than three hours after the accident and that he did not
consume any alcoholic beverages between the time of the
accident and when his blood was later drawn at the
hospital.
The accident occurred about 10:08 pm, and
defendant’s blood was drawn at the hospital about 12:56 am.
The victim, defendant’s passenger, had a blood-alcohol
level of 0.35 grams approximately forty minutes after the
accident occurred.
Three hours after the accident, the
victim’s blood-alcohol level had declined to 0.24 grams.
Second, several eyewitnesses told the police that
defendant was tailgating various cars on the freeway,
driving erratically, and swerved suddenly to get off the
highway.
Evidence was presented at trial that defendant
followed a car on the freeway for one mile with less than
one-half of a car length between the vehicles and while
traveling at a speed of sixty-five miles an hour.
Defendant acknowledged that the other two lanes of the
freeway were clear for the entire mile that he was
tailgating.
Defendant then proceeded to tailgate a
tractor-trailer in a similar manner.
4
Accordingly, in addressing on remand whether the trial
court committed error requiring reversal in making repeated
references to the stipulation, the Court of Appeals should
consider the alternative bases provided by § 625(1)(a) and
(b) and the trial court’s instruction that the jury was
entitled to disregard the stipulation.
Maura D. Corrigan
Third, when the police investigated the crime scene,
officers found numerous empty bottles of alcohol in
defendant’s vehicle.
In addition to the empty bottles of
beer, the police also found an empty vodka bottle in
defendant’s vehicle.
Defendant denied drinking any vodka
on the night of the accident.
Fourth, the nature of the accident itself was
described in great detail at trial.
Defendant suddenly
swerved to get off the freeway and his vehicle rolled over.
In the prior twenty years, there had been no rollover
accidents on that same freeway exit.
5
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 126067
DAVID WILLIAM SCHAEFER,
Defendant-Appellee.
_______________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 127142
JAMES RICHARD LARGE,
Defendant-Appellee.
_______________________________
CAVANAGH, J. (concurring in part and dissenting in part).
I concur in the result reached by the majority that,
to convict a defendant of OUIL causing death under MCL
257.625(4), the prosecution must prove that the defendant
was intoxicated and that his or her driving was both the
factual
Like
and
Justice
the
proximate
Weaver,
I
cause
have
of
the
carefully
victim’s
death.
reexamined
the
language of the statute and this Court’s interpretation of
that language in People v Lardie, 452 Mich 231; 551 NW2d
656 (1996).
In doing so, I have come to the conclusion
that the Lardie Court’s interpretation of the statute did
not effectuate the intent of the Legislature.
Weaver
noted
majority’s
in
her
Lardie
conclusion
defendant’s
that
“intoxicated
J., concurring).
concurrence,
the
focus
driving”
burden on the prosecution.
As Justice
the
must
imposed
Lardie
be
an
on
the
unworkable
Lardie, supra at 272 (Weaver,
After due consideration, I now believe
that the correct interpretation of the statute is that set
forth by the current majority.
I
would
conclusion
also
that
suggest
the
that
the
defendant’s
Lardie
driving
majority’s
must
be
a
“substantial” cause of the victim’s death, while inartfully
worded,
was
likely
an
attempt
to
accentuate
that
the
concept of proximate cause in a criminal context is a more
demanding standard than that found in tort law.
People v
Barnes, 182 Mich 179, 196-199; 148 NW 400 (1914); LaFave &
Scott, Criminal Law (2d ed), § 3.12, pp 279, 282.
This is
true “because the potential deprivation of personal rights
is obviously much more extreme in criminal, as opposed to
tort, actions.”
People v Harding, 443 Mich 693, 738; 506
NW2d
(Cavanagh,
482
(1993)
dissenting in part).
proximate
cause
J.,
concurring
in
part
and
Thus, in a criminal context, “[t]he
standard
requires
a
sufficient
causal
connection between the defendant’s conduct and the result
2
of that conduct.
‘[I]t [must] appear[] that the death
resulted as the natural, direct, and necessary result of
the unlawful act . . . .’”
Id. at 737, quoting Barnes,
supra at 196.
As
criminal
our
criminal
standard
for
jury
instructions
proximate
cause
suggest,
requires
“the
a
more
direct causal connection than the tort concept of proximate
cause.”
Harding, supra
at 738.
Thus, in establishing
causation under MCL 257.625(4), it is critical to note the
following caveats:
[C]riminal liability requires a more direct
causal connection than merely finding that the
defendant’s actions were “a” cause.
Where there
are multiple independent causes contributing to
the victim’s injury or death, so that the
defendant’s conduct alone would not have caused
the death, we would not impose liability for
criminal
negligence
unless
the
defendant’s
conduct
sufficiently
dominated
the
other
contributing factors, to be fairly deemed a
criminal proximate cause, and the injury was
reasonably
foreseeable
from
the
defendant’s
negligence.
More specifically, even though a
victim’s
contributory
negligence
is
not
an
affirmative defense, it is a factor to be
considered by the trier of fact in determining
whether the prima facie element of proximate
cause has been proven beyond a reasonable doubt.
[People v Tims, 449 Mich 83, 111; 534 NW2d 675
(1995) (Cavanagh, J., dissenting).]
Thus,
proximate
the
cause
Lardie
should
Court’s
be
underlying
examined
3
premise,
differently
that
in
a
criminal
case,
was
correct,
but
the
current
majority’s
approach more accurately conveys the concept.
I dissent, however, from the majority’s decision to
remand these cases for further proceedings under the rule
set
forth
applying
in
the
today’s
new
opinion
rule,
because
which
I
believe
that
our
prior
overturns
interpretation of MCL 257.625(4), violates due process and
infringes on the protections inherent in the Ex Post Facto
Clauses of the United States and Michigan constitutions.
US Const 1963, art I, § 10; Const, art 1, § 10.1
In
People
v
Dempster,
396
Mich
700;
242
NW2d
381
(1976), this Court recognized the longstanding rule that to
avoid a deprivation of due process, “[a] criminal statute
must
be
‘sufficiently
explicit
to
inform
those
who
are
subject to it what conduct on their part will render them
1
Although the Ex Post Facto Clauses do not directly
apply to the judiciary, People v Doyle, 451 Mich 93, 99;
545 NW2d 627 (1996), citing Marks v United States, 430 US
188; 97 S Ct 990; 51 L Ed 2d 260 (1977), the “principles
are applicable to the judiciary by analogy through the Due
Process Clauses of the Fifth and Fourteenth Amendments.”
Doyle, supra at 100, citing Bouie v City of Columbia, 378
US 347; 84 S Ct 1697; 12 L Ed 2d 894 (1964); see also
People v Stevenson, 416 Mich 383, 395; 331 NW2d 143 (1982);
People v Dempster, 396 Mich 700, 714-718; 242 NW2d 381
(1976).
For the purposes of my analysis, I consider the
concepts inextricably intertwined.
When a defendant is
deprived of due process, and, thus, is subjected to a
punishment not available at the time of his or her conduct,
this treatment is precisely what is contemplated, and
prohibited, under ex post facto principles.
4
liable to its penalties’.”
Id. at 715, quoting Connally v
Gen Constr Co, 269 US 385, 391; 46 S Ct 126; 70 L Ed 322
(1926).
In Lardie, this Court examined MCL 257.625(4) in
great detail in an attempt to clarify its meaning.
We
engaged in extensive endeavors of statutory construction to
determine things that were not evident on the statute’s
face.
In particular, we examined whether the statute was
meant to impose strict liability; if it was not, whether it
created a general or specific intent crime; whether the
Legislature intended that the prosecution prove some type
of
fault;
and
what
the
parameters
of
the
statute’s
causation requirement were.
The resulting judicial interpretation of the statute
had,
of
course,
the
force
of
law,
and
sufficiently
explained to the citizenry what type of conduct on their
part
would
decision,
lead
the
to
criminal
people
of
culpability.
this
state
were
warning” of a prohibited type of conduct.
Through
that
given
“fair
As the United
States Supreme Court has explained, “There can be no doubt
that a deprivation of the right of fair warning can result
not only from vague statutory language but also from an
unforeseeable and retroactive judicial expansion of narrow
and precise statutory language.”
5
Bouie, supra at 352.
Our decision in Lardie, which had the support of six
justices, was the settled state of the law at the relevant
time of these defendants’ conduct.
Due process precludes
“retroactive application of a ‘judicial construction of a
criminal statute [that] is “unexpected and indefensible by
reference to the law which had been expressed prior to the
conduct in issue . . . .”’” Doyle, supra at 101, quoting
Bouie, supra at 354, quoting Hall, General Principles of
Criminal Law (2d ed), p 61.
There was nothing in Lardie
that suggested that the law was in some state of flux or
that this Court’s construction of the statute was less than
clear or complete.
No fair reading of Lardie would alert a
person that Lardie would later be revisited or revised.
Thus,
at
the
time
of
these
defendants’
conduct,
any
construction different than that set forth in Lardie was
both unexpected and indefensible.
The majority’s assertion that “it is not ‘indefensible
or unexpected’ that a court would, as we do today, overrule
a case that failed to abide by the express terms of a
statute,” completely eliminates the protections against ex
post facto punishments and due process violations.
ante at 33 n 80.
See
Under the majority’s reasoning, no new
court opinion would ever be “indefensible or unexpected,”
because the new opinion would always be “correct.”
6
But
this ignores the fact that every court believes an opinion
it issues is correct, just as the Lardie Court believed in
1996, or it would not issue the opinion.
Further,
the
majority’s
reasoning
imposes
on
our
citizenry the untenable burden of guessing and predicting
when
one
court
might
overturn
interpretation of a statute.
a
prior
court’s
settled
I find such a result in grave
conflict with the notions of due process and, thus, fatally
flawed.
As such, I disagree that these defendants must again
undergo the criminal process under our new interpretation
of what was, at the relevant time, settled law.
Such a
ruling violates the fundamental principles of due process
and subjects defendants to ex post facto punishment.
While
the prosecution had a more difficult burden under Lardie,
today’s
decision
interpretation
lessens
an
criminal statute.
that
unforeseeable
burden,
judicial
making
our
expansion
new
of
a
Subjecting defendants to a new rule that
increases the chance of culpability, when their conduct was
committed when the old rule was settled law, is a clear
violation of defendants’ constitutional rights.
Accordingly,
I
would
affirm
the
district
court’s
dismissal of defendant Large’s case because the district
court
found
that,
under
Lardie,
7
probable
cause
that
defendant committed a crime was nonexistent.
The district
court did not abuse its discretion in finding so.
I would,
though, remand defendant Schaefer’s case for a new trial.
On remand, I would instruct the trial court to give the
jury instruction to which defendant Schaefer was entitled
at his original trial.
Michael F. Cavanagh
8
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 126067
DAVID WILLIAM SCHAEFER,
Defendant-Appellee
_______________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 127142
JAMES RICHARD LARGE,
Defendant-Appellee
_______________________________
KELLY, J. (concurring in part and dissenting in part).
I
concur
with
the
majority’s
interpretation
of
MCL
257.625(4). I write separately to note that I too have
reexamined the language of MCL 257.625(4) and past readings
of it.
I continue to believe that the opinion of this
Court in People v Lardie1 and that of the Court of Appeals
1
452 Mich 231; 551 NW2d 656 (1996).
on which I sat2 were both correct in ruling that the statute
is constitutional.
The defendant in Lardie had contended and the trial
court
had
found
that
the
statute
creates
an
unconstitutional strict liability, public welfare offense.
Both
appellate
courts
unconstitutional.
disagreed
that
the
statute
is
I now believe that the statute does not
impose strict liability on the intoxicated driver, as the
Court of Appeals ruled. Nor does it require the prosecutor
to prove that the intoxication caused the injury, as this
Court ruled.
Lardie presented a different issue than the issue in
these cases; it concerned intent.
focus in Lardie, but it is here.
Causation was not the
The question here is what
causal link between defendant’s actions and the death does
the
statute
thorough
require
that
consideration,
interpretation
of
MCL
the
I
prosecutor
conclude
257.625(4)
is
show.
that
that
After
the
the
correct
prosecutor
must prove (1) the defendant was intoxicated and (2) the
defendant’s driving was the factual and proximate cause of
the victim’s death.
I agree with Justice Cavanagh that the majority errs
in remanding People v Large for further proceedings under
2
207 Mich App 615; 525 NW2d 504 (1994).
2
the new rule set forth in its decision.
Doing so violates
fundamental notions of fairness that are embedded in the
Due Process Clause of the federal and state constitutions.
US Const, Am V; Am XIV, § 1; Const 1963, art 1, § 17.
Marilyn Kelly
3
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