People v. O'NEAL , 198 Mich. App. 118 ( 1993 )

198 Mich. App. 118 (1993) 497 N.W.2d 535

PEOPLE
v.
O'NEAL

Docket No. 139059.

Michigan Court of Appeals.

Submitted November 4, 1992, at Lansing. Decided February 1, 1993, at 9:15 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, David L. Morse, Prosecuting Attorney, and Daniel J. Garber, Jr., Chief Assistant Prosecuting Attorney, for the people.

Gallagher & Associates (by Lee C. Gough), for the defendant.

Before: WEAVER, P.J., and McDONALD and NEFF, JJ.

NEFF, J.

Following a bench trial, defendant, Kevin J. O'Neal, was convicted of operating a vehicle while under the influence of intoxicating liquor (OUIL), third offense, MCL 257.625(1); MSA 9.2325(1). He was sentenced to one year in jail. Defendant now appeals as of right. We affirm.

I

Defendant's conviction arises out of his operation of a dune buggy, an off-road vehicle (ORV), on Krause Road in Livingston County on May 6, 1990, while having a blood alcohol level of 0.2 percent. At the time of this incident, defendant had two prior convictions under the OUIL statute for operating a vehicle while having an unlawful blood alcohol level. In this case, defendant was charged under the OUIL statute rather than under § 20a of the off-road recreational vehicles act (ORV act), MCL 257.1620a; MSA 9.3300(20a), which prohibits persons from operating an ORV while under the influence of intoxicating liquor.

II

Defendant argues that § 20a of the ORV act is a specific statute that was enacted after the more general OUIL statute was enacted, and therefore constitutes an exception to the OUIL statute. He argues that he was charged under the wrong act and that his conviction should be vacated. The people argue that defendant was properly charged and convicted of OUIL, third offense.

A

As a preliminary matter, we find that an ORV is a vehicle to which certain provisions of the Vehicle Code can be applied. At the time of defendant's conviction, the ORV act defined an "ORV" or a "vehicle" as "a motor driven off-road recreation vehicle." MCL 257.1601(m); MSA 9.3300(1)(m) [now MCL 257.1601(o); MSA 9.3300(1)(o)]. A "vehicle" is defined under the Vehicle Code as:

[E]very device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices exclusively moved by human power or used exclusively upon stationary rails or tracks and excepting a mobile home.... [MCL 257.79; MSA 9.1879.]

ORVS are clearly "vehicles" for purposes of the Vehicle Code. We also find that a person who operates an ORV on a public highway while intoxicated can be charged and prosecuted under the OUIL statute.

B

At the time of defendant's conviction, the OUIL statute, MCL 257.625; MSA 9.2325, stated in pertinent part:

(1) A person, whether licensed or not, who is under the influence of intoxicating liquor ... shall not operate a vehicle upon a highway or other place open to the general public, including an area designated for the parking of vehicles, within the state....

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

The ORV statute states in pertinent part:

(1) A person who is under the influence of intoxicating liquor ... shall not operate an ORV.

(2) A person whose blood contains 0.10% or more by weight of alcohol shall not operate an ORV. [MCL 257.1620a; MSA 9.3300(20a).]

We hold that a person may be charged under either statute when that person is operating an ORV on a highway while intoxicated.

C

In People v Rogers, 438 Mich 602; 475 NW2d 717 (1991), our Supreme Court dealt with an issue similar to the one we face in this case. The Court in Rogers dealt with the interplay of the OUIL statute and a provision of the snowmobile act, MCL 257.1515(1)(b); MSA 9.3200(15)(1)(b), which provides that a person shall not operate a snowmobile while intoxicated. In a plurality opinion, the Rogers Court held that the OUIL provisions of the Vehicle Code may properly be applied to a person who operates a snowmobile on a public highway while intoxicated. Id., pp 612, 621.

We are persuaded by the reasoning of Justice BRICKLEY'S concurring opinion in Rogers and believe that much of that reasoning can be applied to the facts of this case. Justice BRICKLEY reasoned that, by focusing more upon the location or area regulated by each statute rather than on the vehicles regulated, the two acts can be interpreted in pari materia, consistently and harmoniously. Id., p 619. He opined that the two statutes could be read in pari materia by finding that the snowmobile statute regulates the operation of a snowmobile while intoxicated when it is both on and off the highway, and the OUIL statute supplements those regulations when snowmobiles are driven on the highway. Id., pp 619-620.

We believe that the same type of analysis is appropriate here and find that the ORV and OUIL statutes can be read in pari materia in that the ORV statute regulates the operation of an ORV both on and off a highway by one who is intoxicated and the OUIL statute supplements those regulations when an ORV, a vehicle under the Michigan Vehicle Code, is operated on a highway by an intoxicated person.

Justice BRICKLEY further supports his conclusion by looking to the purpose of each statute. The purpose of the Vehicle Code is to protect citizens and vehicles while on the public highways. Id., p 620. The paramount concern and apparent purpose of that portion of the ORV statute at issue here is to protect the safety of ORV operators. This portion of the ORV statute was also meant to establish provisions for ORV operation that parallel Michigan's stringent drunk driving laws. Senate Bill Analyses, SB 93, February 21, 1989, March 29, 1989, and January 22, 1990.

The purposes of both statutes are promoted by finding that an intoxicated person operating an ORV on a highway can be charged with OUIL.

Affirmed.