People of Michigan v. James Richard Large ( 2005 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion 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 of operating a motor vehicle while under the
influence of liquor and causing death (“OUIL causing
death”), MCL 257.625(4). In addressing this 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 must be a
substantial cause of the victim’s death. 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. The statute requires that the defendant’s
operation of the motor vehicle, not the defendant’s
intoxicated manner of driving, must cause the victim’s
death. The defendant’s status as “intoxicated” is a
separate element of the offense of OUIL causing death. 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 intoxicated,” not
“operating in an intoxicated manner.” 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 Interstate-
75 in the city of Lincoln Park with his friend as a
passenger in the vehicle. Defendant admitted that he
consumed three beers before getting behind the 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. The car rolled over, killing the
passenger. Defendant stipulated at trial that he had a
0.16 blood-alcohol level almost three hours after the
accident.6
Defendant was charged with OUIL causing death7 and
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 thirty-
six 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. Thus, the court again
read the statute to the jury. 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 In a two-to-one decision, the
Court of Appeals held 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 V LARGE
In July 2003, while 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. The bicycle that she was riding did not
have any brakes. 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 as an expert witness in accident
reconstruction. 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 a substantial
cause of the victim’s death . . . .”20 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.’ Therefore, we may not
revisit the holding of 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 de novo.23 Similarly, jury
instructions that involve questions of law are also
reviewed de novo.24 In reviewing a district court’s
decision to bind over a defendant, the lower court’s
20
Id., slip op at 4.
21
Id. (citation omitted).
22
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 associated with driving while
intoxicated.26 The Legislature evidently believed that
sentences resulting from involuntary manslaughter and
negligent homicide convictions inadequately deterred
intoxicated drivers from getting behind the wheel.27 Thus,
to address this concern, the Legislature enacted the OUIL
causing death statute, which provides more severe
penalties, with the apparent expectation that these
heightened penalties would deter intoxicated 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 a culpable mental state. In rejecting the
defendants’ due process arguments, this Court held 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 Court held that “in proving causation, the
people must establish that the particular defendant's
decision to drive while intoxicated produced a change in
that driver's operation of the vehicle that caused the
death of the victim.”33 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 Lardie Court summarized the three distinct
elements the prosecution must prove in 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 the defendant’s intoxication and the victim’s
death.40 Section 625(4) provides, “A person, whether
licensed or not, who operates a motor vehicle [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 judicial
41
MCL 257.625(4) (emphasis added).
42
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.” The result that the
Court in Lardie viewed as “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 branch of
government with unbridled policymaking power. Such a model
44
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 intoxicated operation. Thus, the manner in
which the defendant’s intoxication affected his or her
operation of the vehicle is unrelated to the causation
element of the crime. The defendant’s 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 We hold that the prosecution, in proving OUIL
causing death, must establish beyond a reasonable doubt
that (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 in her Lardie concurrence, the Lardie 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 operation of the
49
Lardie, supra at 253.
50
Id. at 272.
51
As we noted in Robinson v Detroit, 462 Mich. 439, 463-
468; 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: factual
cause and proximate cause.54 The concept of factual
causation is relatively straightforward. 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, 277-
280; 183 N.W. 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 N.W. 400 (1914); see also 1 Torcia, Wharton’s Criminal
Law (15th ed), § 26; Perkins, Criminal Law (2d ed), pp 687-
688; 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 In making
this determination, it is necessary to examine whether
there was an intervening cause that 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 link, is
generally one of reasonable foreseeability. For example,
suppose that a defendant stabs a victim and the victim is
60
1 Torcia, Wharton’s Criminal Law (15th ed), § 26, pp 147-
148; 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 be provided.63 At the same time, gross
negligence or intentional misconduct by a treating
physician is not reasonably foreseeable, and would thus
break the causal chain between the defendant 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 in Barnes, supra, in criminal jurisprudence, gross
negligence “means wantonness and disregard of the
consequences which may ensue, and indifference 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. If factual causation is established,
it must then be determined whether the defendant’s
operation of the vehicle was a proximate cause. In doing
so, one must inquire whether the victim’s death was a
direct and natural result of the defendant’s operation of
the vehicle and whether an intervening cause may have
superseded and thus severed the causal link.66 While an act
65
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. APPLICATION
i. PEOPLE V SCHAEFER
Defendant argues that the trial court erred in
instructing the jury on OUIL causing death in two respects.
First, defendant contends that the trial court’s
instruction on the causation element of the 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, 1124-
1125 (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. Second, defendant argues that the trial court
erred when it reminded the jury three times 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 the
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?
Juror No. 11: Also causing death.
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
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, but not for the reasons offered by
defendant. 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 Lardie Court erred in
requiring that the defendant’s 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. The jury could not be expected to
understand that the statute required the 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. Instead, a defendant must
establish that the erroneous instruction resulted in “a
miscarriage of justice.”69 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 a statute is generally considered
nonconstitutional error.73 As such, any error that the
trial court committed in the present case in failing to
explain the causation element of § 625(4) was
nonconstitutional. Moreover, because defendant 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 Specifically, in Lukity we
stated that MCL 769.26 “presumes that a 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 An error is
not “outcome determinative” unless it “‘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. The
witness presented no evidence that there was any gross
negligence in the design of the freeway exit. As such, the
design of the freeway exit could not be considered a
superseding cause that would prevent defendant from being
legally regarded as a proximate cause of the victim’s
death. We conclude, therefore, that defendant has failed
to rebut the presumption that the alleged 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 U.S. 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. Defendant’s blood-alcohol level was 0.10 grams
and he voluntarily chose to drive knowing that he had
consumed alcohol. 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. The issue of proximate causation,
however, is less certain. There is evidence that the
victim’s death was the direct and natural result of
defendant’s operation of the vehicle. 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. Given the fact that during the preliminary
examination 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 in light of the
principles discussed in this opinion. We do not retain
jurisdiction.
34
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 operating ability.
Therefore, to the extent that Lardie held that § 625(4)
requires the defendant’s intoxicated 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 holding, analysis, and
application in these cases. 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 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.
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 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.
As the majority correctly observes, ante at 33 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).
In 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.
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 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
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 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 Lardie Court’s interpretation of the statute did
not effectuate the intent of the Legislature. As Justice
Weaver noted in her Lardie concurrence, the Lardie
majority’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.
I would also suggest that the Lardie majority’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 N.W. 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
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 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 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, the Lardie Court’s underlying premise, that
proximate cause should be examined differently in a
3
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 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 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 U.S.
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
U.S. 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 U.S. 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 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.
5
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. See
ante at 33 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
6
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 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.
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 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.
Accordingly, I would affirm the district court’s
dismissal of defendant Large’s case because the district
court found that, under Lardie, probable cause that
7
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 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 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. 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.
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