People v. Bound

• Decision Date: 22 December 1987
• Docket Number: Docket No. 96099
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James Patrick BOUND, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 762

413 N.W.2d 762

163 Mich.App. 261

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James Patrick BOUND, Defendant-Appellee.

Docket No. 96099.

Court of Appeals of Michigan.

Submitted July 8, 1987.

Decided Sept. 21, 1987.

Released for Publication Oct. 28, 1987.

Leave to Appeal Denied Dec. 22, 1987.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Graham K. Crabtree, Asst. Pros. Atty., for the People.

Robert W. Larin, Birmingham, for defendant-appellee.

Before KELLY, P.J., and BEASLEY and EDWARDS, ^* JJ.

KELLY, Presiding Judge.

The prosecutor appeals by leave granted from the circuit court decision affirming the district court's dismissal of felony charges against defendant. We affirm.

On October 14, 1985, defendant James Patrick Bound was charged with operating a motor vehicle while under the influence of intoxicating liquor, or operating a vehicle with a blood-alcohol content of 0.10 percent, third offense, M.C.L. Sec. 257.625; M.S.A. Sec. 9.2325. Pursuant to subsection (6) of the statute defendant was charged with a felony. Because the two prior convictions relied on by the prosecutor in bringing felony charges arose out of violations of local ordinances in another state, defendant moved to dismiss.

M.C.L. Sec. 257.625; M.S.A. Sec. 9.2325 provides in part:

"(1) A person, whether licensed or not, who is under the influence of intoxicating liquor or a controlled substance, or a combination of intoxicating liquor and a controlled substance, shall not operate a vehicle upon a highway or other place open to the general public, including an area designated for the parking of vehicles, within the state. A peace officer may, without a warrant, arrest a person when the peace officer has reasonable cause to believe that the person was, at the time of an accident, the driver of a vehicle involved in the accident and was operating the vehicle upon a public highway or other place open to the general public, including an area designated for the parking of vehicles, in the state while in violation of this subsection or of subsection (2), or of a local ordinance substantially corresponding to this subsection or subsection (2).

"(2) A person, whether licensed or not, whose blood contains 0.10% or more by weight of alcohol, shall not operate a vehicle upon a highway or other place open to the general public, including an area designated for the parking of vehicles, within the state.

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"(5) A person who violates subsection (1) or (2) or a local ordinance substantially corresponding to subsection (1) or (2) within 7 years of a prior conviction may be sentenced to imprisonment for not more than 1 year, or a fine of not more than $1,000.00, or both. As part of the sentence, the court shall order the secretary of state to revoke the operator's or chauffeur's license of the person. For purposes of this section, 'prior conviction' means a conviction under subsection (1) or (2), a local ordinance substantially corresponding to subsection (1) or (2), or a law of another state substantially corresponding to subsection (1) or (2).

"(6) A person who violates subsection (1) or (2) or a local ordinance substantially corresponding to subsection (1) or (2) within 10 years of 2 or more prior convictions, as defined in subsection (5), is guilty of a felony. As part of the sentence, the court shall order the secretary of state to revoke the operator's or chauffeur's license of the person."

It is the interpretation of the language of subsection (5) of the statute, which defines prior convictions, that is in dispute. Defendant successfully argued in his motion to dismiss the felony charge that M.C.L. Sec. 257.625(5); M.S.A. Sec. 9.2325(5) excluded convictions based on local ordinances from another state since the statute did not mention local ordinances of another state in defining prior convictions. The people argue that the apparent purpose of the Legislature in adopting the provision on prior convictions was to deter persons from repeated violations of the statute. The people contend that this legislative intent of preventing intoxicated persons from driving is violated when prior...