People v. Callon, Docket No. 234421.

CourtCourt of Appeal of Michigan (US)
Citation256 Mich. App. 312,662 N.W.2d 501
Docket NumberDocket No. 234421.
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lee Lawrence CALLON, Defendant-Appellant.
Decision Date29 May 2003

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Marilyn J. Day, Assistant Prosecuting Attorney, for the people.

Brian Dailey Law Firm, P.C., (by Amy M. Hopp), Farmington Hills, for the defendant.

Before: MARKEY, P.J., and SMOLENSKI and METER, JJ.


Defendant Lee L. Callon appeals by right his conviction by a jury of operating a vehicle under the influence of intoxicating liquor or while having a blood alcohol content of 0.10 grams or more per 100 milliliters of blood (OUIL/UBAL), M.C.L. § 257.625(1). Defendant was sentenced to two years probation, with 273 days in jail, as a third-time offender, M.C.L. § 257.625(8)(c), but the trial court stayed the sentence and granted defendant bond pending appeal. We affirm.


The facts of the present case are simple. Defendant was stopped on October 9, 1999, by Farmington Hills Police Officer Matthew Parsons for erratic driving and speeding. Defendant was arrested for OUIL after an investigation that included the administration of field sobriety tests. When defendant did not take an offered breath test, Parsons obtained a search warrant for his blood. Parsons transported defendant to Botsford Hospital where Daniel Quinn, a hospital phlebotomist, executed the search warrant in Parsons' presence, drawing two vials of defendant's blood that Parsons sealed in a Michigan State Police blood-urine test kit and mailed to the Michigan State Police crime lab.1

Kimberly Dailey, a Michigan State Police forensic scientist, testified that as a forensic scientist she analyzes blood and urine for the presence of drugs and alcohol. After the trial court accepted Dailey as an expert in determining blood alcohol content, she testified that she conducted various tests on the blood sample the police seized from defendant, obtaining a result of 0.16 grams of alcohol per 100 milliliters of blood.


Defendant first argues that 1998 PA 350, effective October 1, 1999, which included impaired-driving convictions in the definition of "prior conviction" that may be used to enhance a conviction of OUIL/UBAL to a felony, operates as an ex post facto law. Interpretation of constitutional provisions and statutory construction are both questions of law we review de novo. People v. Sierb, 456 Mich. 519, 522, 581 N.W.2d 219 (1998). We conclude that defendant's argument has no merit because the legal consequences of 1998 PA 350 attached to defendant only as a result of acts committed by defendant after the effective date of the statute. Carmell v. Texas, 529 U.S. 513, 519-520, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000); People v. Harvey, 174 Mich.App. 58, 61, 435 N.W.2d 456 (1989).

Before his arrest on October 9, 1999, defendant had been convicted of impaired driving2 on April 6, 1993, and of operating with an unlawful blood alcohol level on May 25, 1995. After his conviction of OUIL/UBAL, defendant was subject to M.C.L. § 257.625(8)(c), which provides in part, "[i]f a person is convicted of violating subsection (1), all of the following apply:... (c) If the violation occurs within 10 years of 2 or more prior convictions, the person is guilty of a felony...." Before October 1, 1999, a prior conviction for impaired driving could not be used to enhance a conviction for OUIL/UBAL, M.C.L. § 257.625(6)(f), as amended by 1991 PA 98. Rather, the conviction could only be used to enhance a subsequent conviction of impaired driving from a ninety-day misdemeanor to a one-year misdemeanor, M.C.L. § 257.625(10), as amended by 1991 PA 98. Defendant argues that 1998 PA 350, effective October 1, 1999, operates as an ex post facto law because it modified the definition of "prior conviction" to include a prior conviction of impaired driving under M.C.L. § 257.625(3) for purposes of enhancing a subsequent conviction of OUIL/UBAL, M.C.L. § 257.625(1), to a felony conviction, M.C.L. § 257.625(8)(c). The statute now provides, in part:

(23) ... as used in this section, "prior conviction" means a conviction for any of the following, whether under a law of this state, a local ordinance substantially corresponding to a law of this state, or a law of another state substantially corresponding to a law of this state:

(a) ... a violation or attempted violation of subsection (1), (3), (4), (5), (6), or (7), section 625m, former section 625(1) or (2), or former section 625b. [MCL 257.625(23), as amended by 1998 PA 350.]

Ex post facto laws are prohibited by both the Michigan Constitution, Const. 1963, art. 1, § 10 ("no bill of attainder, ex post facto law or law impairing the obligation of contract shall be enacted"), and United States Constitution, U.S. Const., art. I, § 10 ("no state shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts...."). Michigan does not interpret its constitutional provision more expansively than its federal counterpart. Attorney General v. Pub. Service Comm., 249 Mich.App. 424, 434, 642 N.W.2d 691 (2002); People v. Pennington, 240 Mich.App. 188, 191 n. 1, 610 N.W.2d 608 (2000). Both ex post facto clauses are designed to secure substantial personal rights against arbitrary and oppressive legislation, People v. Russo, 439 Mich. 584, 592, 487 N.W.2d 698 (1992); Pennington, supra, and to ensure fair notice that conduct is criminal, People v. Stevenson, 416 Mich. 383, 396, 331 N.W.2d 143 (1982); People v. Davis, 181 Mich.App. 354, 357, 448 N.W.2d 842 (1989).

The seminal case interpreting the federal Ex Post Facto Clause is Calder v. Bull, 3 Dall. 386, 3 U.S. 386, 390, 1 L.Ed. 648 (1798), in which Justice Chase described four categories of ex post facto laws. The Supreme Court recently reaffirmed these four categories in Carmell, supra, quoting Justice Chase's opinion in Calder, supra, as follow:

"I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.2d. Every law that aggravates a crime, or makes it greater than it was, when committed.3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender." [Carmell, supra at 522, 120 S.Ct. 1620, quoting Colder, supra at 390 (emphasis in original).]

See also Collins v. Youngblood, 497 U.S. 37, 42, 49, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) (finding departures from Justice Chase's original understanding of the Ex Post Facto Clause to be unjustified), and Stevenson, supra at 396, 331 N.W.2d 143 (finding that In re Hoffman, 382 Mich. 66, 71 n. 1, 168 N.W.2d 229 (1969), adopted Justice Chase's definition of ex post facto laws by reference). 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. Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); People v. Slocum, 213 Mich.App. 239, 243, 539 N.W.2d 572 (1995). Defendant first argues the amended definition of "prior conviction" is an ex post facto law within the meaning of the second Calder category, a "law that aggravates a crime, or makes it greater than it was, when committed," and the third Calder category, a "law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." Defendant's argument fails. "The critical question [for an ex post facto violation] is whether the law changes the legal consequences of acts completed before its effective date." Carmell, supra at 520, 120 S.Ct. 1620, quoting Weaver, supra at 31, 101 S.Ct. 960. Here, the amended statute did not attach legal consequences to defendant's prior impaired-driving conviction, but attached legal consequences to defendant's future conduct of driving under the influence or with an unlawful blood alcohol level. "`[R]ecidivist statutes ... do not change the penalty imposed for the earlier conviction.'" People v. Reichenbach, 459 Mich. 109, 124-125, 587 N.W.2d 1 (1998), quoting Nichols v. United States, 511 U.S. 738, 747, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). See also People v. Tice, 220 Mich.App. 47, 51, 558 N.W.2d 245 (1996) (holding that M.C.L. § 750.224f prohibiting possession of a firearm by a felon was not an ex post facto law when applied to the defendant whose felony conviction occurred before the effective date of the statute, because punishment was assessed for conduct committed after the effective date of the statute), and Harvey, supra at 61, 435 N.W.2d 456 (no ex post facto violation occurred by applying the parental kidnapping statute, M.C.L. § 750.350a, to the defendant's retention of a child in violation of a divorce decree for more than twenty-four hours after the effective date of the new statute).

Similarly, defendant's argument that his impaired-driving conviction is an element of OUIL/UBAL, third offense, must also fail. First, defendant's reliance on People v. Bewersdorf, 438 Mich. 55, 68, 475 N.W.2d 231 (1991), is misplaced because in that case our Supreme Court addressed M.C.L. § 257.625 as it existed before its amendment by 1991 PA 98, which made the existence of prior convictions only part of a sentence-enhancement scheme. See People v. Weatherholt, 214 Mich.App. 507, 511-512, 543 N.W.2d...

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