People v. Schaefer

¶1(concurring). I join in the majority’s holding, analysis, and application in these cases. As the *447majority 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.

¶2I 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 Lardieconcurrence.

¶3Specifically, I suggested in Lardiethat showing proximate cause was not necessary to prove OUIL causing death. Lardie, supraat 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.

¶4The dangers of driving under the influence are no doubt of concern to the Legislature; however, as 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.

¶5(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 error requiring reversal when it reminded the jury three times during instructions about defendant’s stipulation regarding his blood-alcohol level of 0.16 grams.

¶6*448As the majority correctly observes, ante at 445 n 81, in determining whether the multiple references to the stipulation constitute an error requiring reversal, the Court of Appeals should consider whether 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).

¶7In assessing whether a miscarriage of justice occurred, I believe it is noteworthy that 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 could have concluded that defendant was intoxicated. Specifically, at the 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.

¶8Thus, 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.”

¶9In 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.

*449It’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.]

¶10Moreover, the trial court explicitly instructed the jury that it was free to reject defendant’s stipulation about his blood-alcohol level. Specifically, the trial court told the jury, “You have a right to accept [the stipulation], or you have a right to reject it. It’s entirely up to you.” It is thus quite possible that the jury chose to ignore completely defendant’s stipulation about his blood-alcohol level when it found defendant guilty of OUIL causing death.1

¶11*450Accordingly, 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(l)(a) and (b) and the trial court’s instruction that the jury was entitled to disregard the stipulation.

¶16(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 and the proximate cause of the victim’s death. Like Justice WEAVER, I have carefully 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 LardieCourt’s interpretation of the statute did not effectuate the intent of the Legislature. As Justice WEAVER noted in her Lardie*451concurrence, the Lardiemajority’s conclusion that the focus must be on the defendant’s “intoxicated driving” imposed an unworkable burden on the prosecution. Lardie, supra at 272 (WEAVER, J., concurring). After due consideration, I now believe that the correct interpretation of the statute is that set forth by the current majority.

¶17I would also suggest that the Lardiemajority’s conclusion that the defendant’s driving 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 482 (1993) (CAVANAGH, J., concurring in part and dissenting in part). Thus, in a criminal context, “[t]he proximate cause standard requires a sufficient causal connection between the defendant’s conduct and the result 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.

¶18As our criminal jury instructions suggest, “the criminal standard for proximate cause requires 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 *452causes 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 affir- ' mative 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).]

¶19Thus, the LardieCourt’s underlying premise, that proximate cause should be examined differently in a criminal case, was correct, but the current majority’s approach more accurately conveys the concept.

¶20I dissent, however, from the majority’s decision to remand these cases for further proceedings under the rule set forth in today’s opinion because I believe that • applying the new rule, which overturns our prior 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, art I, § 10; Const 1963, art 1, § 10.1

¶21*453In 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 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.

¶22The 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 lead to criminal culpability. Through that decision, the people of this state were given “fair warning” of a prohibited type of conduct. 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.” Bouie, supra at 352.

¶23Our 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 *454indefensible 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 Lardiethat 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 Lardiewould alert a person that Lardiewould later be revisited or revised. Thus, at the time of these defendants’ conduct, any construction different than that set forth in Lardiewas both unexpected and indefensible.

¶24The 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. See ante at 444 n 80. Under the majority’s reasoning, no new court opinion would ever be “indefensible or unexpected,” because the new opinion would always be “correct.” But this ignores the fact that every court believes an opinion it issues is correct, just as the LardieCourt believed in 1996, or it would not issue the opinion.

¶25Further, the majority’s reasoning imposes on our citizenry the untenable burden of guessing and predicting when one court might overturn a prior court’s settled interpretation of a statute. I find such a result in grave conflict with the notions of due process and, thus, fatally flawed.

¶26As 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 pun*455ishment. While the prosecution had a more difficult burden under Lardie, today’s decision lessens that burden, making our new interpretation an unforeseeable judicial expansion of a criminal statute. 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.

¶27Accordingly, I would affirm the district court’s dismissal of defendant Large’s case because the district court found that, under Lardie, 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.

¶29(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 on which I sat2 were both correct in ruling that the statute is constitutional.

¶30The 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 disagreed that the statute is unconstitutional. I now believe that the statute does not impose strict liability on the intoxicated driver, as the Court of *456Appeals ruled. Nor does it require the prosecutor to prove that the intoxication caused the injury, as this Court ruled.

¶31Lardie presented a different issue than the issue in these cases; it concerned intent. Causation was not the focus in Lardie, but it is here. The question here is what causal link between defendant’s actions and the death does the statute require that the prosecutor show. After thorough consideration, I conclude that the correct interpretation of MCL 257.625(4) is that the 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.

¶32I agree with Justice CAVANAGH that the majority errs in remanding People v Large for further proceedings under 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 XTV( § 1; Const 1963, art 1, § 17.