People v. Miller

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Syllabus Robert P. Young, Jr. Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Corbin R. Davis

PEOPLE v MILLER

Docket No. 149502. Argued April 7, 2015 (Calendar No. 4). Decided July 20, 2015.

Joseph Miller was convicted by a jury in the Leelanau Circuit Court of operating while
intoxicated (OWI), MCL 257.625(1), and operating while intoxicated causing serious
impairment of another person’s body function (OWI-injury), MCL 257.625(5), for an accident
that resulted when he grabbed the steering wheel of the car that his girlfriend was driving. The
court, Thomas G. Power, J., sentenced defendant to two concurrent terms of five years’
probation, with the first nine months to be served in jail. Defendant appealed. The Court of
Appeals, DONOFRIO, P.J., and SAAD and METER, JJ., in an unpublished opinion per curiam issued
March 11, 2014 (Docket No. 314375), affirmed defendant’s conviction for OWI-injury but
vacated defendant’s OWI conviction on the ground that it violated defendant’s constitutional
protection against double jeopardy. The Court of Appeals denied the prosecution’s motion for
reconsideration. The Supreme Court granted the prosecution’s application for leave to appeal.
497 Mich 881 (2014).

In a unanimous opinion by Justice VIVIANO, the Supreme Court held:

The trial court violated the constitutional protection against double jeopardy by
convicting defendant of both OWI and OWI-injury. When read as a whole, MCL 257.625
expresses a clear legislative intent not to allow conviction of and punishment for multiple
offenses arising from the same incident except where explicitly authorized by the statute, and
MCL 257.625(1) and MCL 257.625(5) do not specifically authorize multiple punishments.
Accordingly, the Court of Appeals correctly vacated defendant’s conviction, but for the wrong
reason.

1. The constitutional prohibition against double jeopardy protects against successive
prosecutions for the same offense and against the imposition of multiple punishments for the
same offense. The protection against multiple punishments is not violated if the Legislature has
specifically authorized cumulative punishments under two statutes; however, if the Legislature
has expressed a clear intention to prohibit multiple punishments, it is a violation of double
jeopardy to convict a defendant for both offenses in a single trial. If the Legislature’s intent is
not clear, courts apply the “abstract legal elements” test articulated in People v Ream, 481 Mich
223 (2008), which focuses on the statutory elements of the offense to determine whether the
Legislature intended for multiple punishments. Under this test, it does not violate double
jeopardy protections to convict a defendant of multiple offenses if each of the offenses has an
element that the other does not.

2. The Court of Appeals erred by concluding that the Legislature did not express a clear
intent with regard to multiple punishments arising under MCL 257.625(1) and (5). Although
these provisions do not clearly evidence the Legislature’s intent when read in isolation, reading
MCL 257.625 as a whole indicates that the Legislature specifically authorized multiple
punishments for an individual who violates MCL 257.625(7) by driving with a minor while
intoxicated and, by that same conduct, also commits OWI-injury under MCL 257.625(5) or OWI
causing death under MCL 257.625(4). The fact that there is no similar provision expressly
authorizing multiple punishments for violating MCL 257.625(1) and MCL 257.625(5) indicates
that the Legislature did not intend to permit a defendant to be convicted of both offenses for the
same criminal conduct. Accordingly, the trial court violated double jeopardy by convicting
defendant of both OWI and OWI-injury.

Court of Appeals judgment affirmed on different grounds; case remanded to the trial
court for resentencing.

©2015 State of Michigan
 Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

OPINION Robert P. Young, Jr. Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein

FILED July 20, 2015

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 149502

JOSEPH MILLER,

Defendant-Appellee.

BEFORE THE ENTIRE BENCH

VIVIANO, J.
At issue before us is whether defendant’s convictions of operating while

intoxicated (OWI) 1 and operating while intoxicated causing serious impairment of the

body function of another person (OWI-injury) 2 arising from a single intoxicated driving

incident violated the double jeopardy clauses of the United States and Michigan

1
MCL 257.625(1).
2
MCL 257.625(5).
Constitutions. 3 Although we agree with the Court of Appeals’ conclusion that convicting

defendant of both offenses violated his double jeopardy protections, we disagree with the

reasoning employed by the Court of Appeals. In particular, the Court of Appeals erred

by not recognizing the clear legislative intent reflected in the plain language of the statute

precluding multiple punishments for OWI and OWI-injury. Accordingly, for the reasons

stated below, we affirm the Court of Appeals’ decision to vacate defendant’s OWI

conviction under MCL 257.625(1) on alternate grounds and remand to the trial court for

resentencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

In June 2012, while returning from a concert at which they had both been drinking

alcohol, defendant and his girlfriend got into an argument. Defendant grabbed the wheel

from his girlfriend, who was driving, causing the car to go off the road and strike a tree.

Defendant’s girlfriend suffered a broken collar bone and a concussion as a result of the

accident. Defendant had a blood alcohol level of 0.17 grams per 100 milliliters.

Defendant was charged with OWI and OWI-injury. A jury convicted defendant as

charged. The trial court sentenced defendant to two concurrent terms of five years’

probation, with the first nine months to be served in the county jail.

Defendant appealed to the Court of Appeals, arguing that the trial court violated

the multiple punishments strand of the double jeopardy clauses by convicting him of both

OWI and OWI-injury. The Court of Appeals agreed, vacated defendant’s OWI

3
US Const, Am V; Const 1963, art 1, § 15.

2
conviction under MCL 257.625(1), and remanded the case for resentencing. 4 The

prosecution moved for reconsideration, arguing that the Court of Appeals’ analysis was

contrary to People v Ream, 5 but the Court of Appeals denied the motion in a summary

order.

The prosecution sought leave to appeal in this Court. We granted leave to

consider whether defendant’s convictions for both OWI and OWI-injury arising from the

same incident constitutes a violation of the multiple punishments strand of double

jeopardy under the United States and Michigan Constitutions. 6

II. STANDARD OF REVIEW

This case presents questions of law regarding statutory interpretation and the

application of our state and federal Constitutions, which we review de novo. 7

III. MULTIPLE PUNISHMENTS STRAND OF DOUBLE JEOPARDY

The Double Jeopardy Clause of the Fifth Amendment of the United States

Constitution provides that no person shall “be subject for the same offence to be twice

put in jeopardy of life or limb . . . .” 8 The Michigan Constitution similarly provides that

4
People v Miller, unpublished opinion per curiam of the Court of Appeals, issued
March 11, 2014 (Docket No. 314375).
5
People v Ream, 481 Mich 223; 750 NW2d 536 (2008).
6
People v Miller, 497 Mich 881 (2014).
7
People v Gardner, 482 Mich 41, 46; 753 NW2d 78 (2008); People v Nutt, 469 Mich
565, 573; 677 NW2d 1 (2004).
8
US Const, Am V.

3
“[n]o person shall be subject for the same offense to be twice put in jeopardy.” 9 The

prohibition against double jeopardy protects individuals in three ways: “(1) it protects

against a second prosecution for the same offense after acquittal; (2) it protects against a

second prosecution for the same offense after conviction; and (3) it protects against

multiple punishments for the same offense.” 10 The first two protections comprise the

“successive prosecutions” strand of double jeopardy, while the third protection is known

as the “multiple punishments” strand. 11 Because defendant was convicted of and

sentenced for both OWI and OWI-injury arising from the same conduct at the same trial,

this case involves the multiple punishments strand of double jeopardy.

The multiple punishments strand of double jeopardy “is designed to ensure that

courts confine their sentences to the limits established by the Legislature” and therefore

acts as a “restraint on the prosecutor and the Courts.” 12 The multiple punishments strand

is not violated “[w]here ‘a legislature specifically authorizes cumulative punishment

9
Const 1963, art 1, § 15. Although we are not bound to interpret the Michigan
Constitution consistently with similar provisions of the United States Constitution, “we
have been persuaded in the past that interpretations of the Double Jeopardy Clause of the
Fifth Amendment have accurately conveyed the meaning of Const 1963, art 1, § 15 . . . .”
People v Smith, 478 Mich 292, 302 n 7; 733 NW2d 351 (2007).
10
Nutt, 469 Mich at 574.
11
Smith, 478 Mich at 299.
12
People v Mitchell, 456 Mich 693, 695; 575 NW2d 283 (1998); see also Brown v Ohio,
432 US 161, 165; 97 S Ct 2221; 53 L Ed 2d 187 (1977) (“Where consecutive sentences
are imposed at a single criminal trial, the role of the constitutional [double jeopardy]
guarantee is limited to assuring that the court does not exceed its legislative authorization
by imposing multiple punishments for the same offense.”).

4
under two statutes . . . .’ ” 13 Conversely, where the Legislature expresses a clear intention

in the plain language of a statute to prohibit multiple punishments, it will be a violation of

the multiple punishments strand for a trial court to cumulatively punish a defendant for

both offenses in a single trial. 14 “Thus, the question of what punishments are

constitutionally permissible is not different from the question of what punishments the

Legislative Branch intended to be imposed.” 15

The Legislature, however, does not always clearly indicate its intent with regard to

the permissibility of multiple punishments. When legislative intent is not clear, Michigan

courts apply the “abstract legal elements” test articulated in Ream to ascertain whether

the Legislature intended to classify two offenses as the “same offense” for double

jeopardy purposes. This test focuses on the statutory elements of the offense to

13
Mitchell, 456 Mich at 695, quoting Missouri v Hunter, 459 US 359, 368-369; 103 S Ct
673; 74 L Ed 2d 535 (1983).
14
See Garrett v United States, 471 US 773, 779; 105 S Ct 2407; 85 L Ed 2d 764 (1985)
(explaining “that the Blockburger rule is not controlling when the legislative intent is
clear from the face of the statute or the legislative history”); Hunter, 459 US at 366
(“With respect to cumulative sentences imposed in a single trial, the Double Jeopardy
Clause does no more than prevent the sentencing court from prescribing greater
punishment than the legislature intended.”); Smith, 478 Mich at 316 (“In interpreting
‘same offense’ in the context of multiple punishments, federal courts first look to
determine whether the legislature expressed a clear intention that multiple punishments
be imposed.”); Mitchell, 456 Mich at 695-696 (“Where the issue is one of multiple
punishment rather than successive trials, the double jeopardy analysis is whether there is
a clear indication of legislative intent to impose multiple punishment for the same
offense.”).
15
Albernaz v United States, 450 US 333, 344; 101 S Ct 1137; 67 L Ed 2d 275 (1981).

5
determine whether the Legislature intended for multiple punishments. 16 Under the

abstract legal elements test, it is not a violation of double jeopardy to convict a defendant

of multiple offenses if “each of the offenses for which defendant was convicted has an

element that the other does not . . . .” 17 This means that, under the Ream test, two

offenses will only be considered the “same offense” where it is impossible to commit the

greater offense without also committing the lesser offense. 18

In sum, when considering whether two offenses are the “same offense” in the

context of the multiple punishments strand of double jeopardy, we must first determine

whether the statutory language evinces a legislative intent with regard to the

permissibility of multiple punishments. If the legislative intent is clear, courts are

required to abide by this intent. 19 If, however, the legislative intent is not clear, courts

must then apply the abstract legal elements test articulated in Ream to discern legislative

intent.

16
Ream, 481 Mich at 238 (explaining that “[b]ecause the statutory elements, not the
particular facts of the case, are indicative of legislative intent, the focus must be on these
statutory elements”).
17
Id. at 225-226.
18
Id. at 241.
19
See Mitchell, 456 Mich at 695-696 (explaining that where the legislative intent is clear,
“ ‘a court’s task of statutory construction is at an end’ ”), quoting Hunter, 459 US at 368.

6
 IV. ANALYSIS AND APPLICATION

Subsections (1) through (8) of MCL 257.625 establish different categories of

operating while intoxicated offenses. In this case, we must determine whether double

jeopardy precludes defendant’s convictions of OWI under MCL 257.625(1) and OWI-

injury under MCL 257.625(5) arising from a single intoxicated driving incident.

MCL 257.625(1) provides:

A person, whether licensed or not, shall not operate a vehicle upon a
highway or other place open to the general public or generally accessible to
motor vehicles, including an area designated for the parking of vehicles,
within this state if the person is operating while intoxicated. As used in this
section, “operating while intoxicated” means any of the following:

(a) The person is under the influence of alcoholic liquor, a controlled
substance, or other intoxicating substance or a combination of alcoholic
liquor, a controlled substance, or other intoxicating substance.

(b) The person has an alcohol content of 0.08 grams or more per 100
milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or,
beginning October 1, 2018, 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.

(c) The person has an alcohol content of 0.17 grams or more per 100
milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

MCL 257.625(5) provides:

A person, whether licensed or not, who operates a motor vehicle in
violation of subsection (1), (3), or (8) and by the operation of that motor
vehicle causes a serious impairment of a body function of another person is
guilty of a crime as follows:

(a) Except as provided in subdivision (b), the person is guilty of a
felony punishable by imprisonment for not more than 5 years or a fine of
not less than $1,000.00 or more than $5,000.00, or both. The judgment of
sentence may impose the sanction permitted under section 625n. If the
vehicle is not ordered forfeited under section 625n, the court shall order
vehicle immobilization under section 904d in the judgment of sentence.

7
 (b) If the violation occurs while the person has an alcohol content of
0.17 grams or more per 100 milliliters of blood, per 210 liters of breath, or
per 67 milliliters of urine, and within 7 years of a prior conviction, the
person is guilty of a felony punishable by imprisonment for not more than
10 years or a fine of not less than $1,000.00 or more than $5,000.00, or
both. The judgment of sentence may impose the sanction permitted under
section 625n. If the vehicle is not ordered forfeited under section 625n, the
court shall order vehicle immobilization under section 904d in the judgment
of sentence.

As stated above, to determine whether defendant’s convictions of both OWI and

OWI-injury violated his double jeopardy rights, we must first determine whether the

Legislature expressed a clear intent regarding the permissibility of multiple operating

while intoxicated convictions arising from the same incident.

The Court of Appeals concluded, based on an examination of the plain language of

MCL 257.625, that the Legislature did not “evince a clear expression of any intent to

allow multiple punishments for the same offense.” 20 In doing so, the Court focused on

MCL 257.625(25) and (27). MCL 257.625(25)(b) defines “prior convictions” and

includes as part of that definition a violation of “[t]his section” or a “substantially

corresponding” local ordinance, federal law, or law of another state. MCL 257.625(27)

provides that “[i]f 2 or more convictions described in subsection (25) are convictions for

violations arising out of the same transaction, only 1 conviction shall be used to

determine whether the person has a prior conviction.” The Court of Appeals concluded

that the Legislature did not clearly state its intent with regard to multiple punishments

under these subsections because subsection (25) includes “as part of its definition of

20
Miller, unpub op at 4.

8
‘prior conviction’ a conviction from a foreign jurisdiction of a law that ‘substantially

correspond[s] to a law of this state,” which may allow multiple punishments for a single

transaction and thus subsection (27) merely “limit[s] how those multiple convictions are

to be handled with respect to calculating a defendant’s number of ‘prior convictions.’ ” 21

We agree with the Court of Appeals that MCL 257.625(25) and (27) do not

indicate a clear legislative intent with regard to the permissibility of multiple

punishments. While MCL 257.625(27) considers the possibility that a defendant could

be convicted of multiple offenses arising out of the same transaction, it is not clear

whether the Legislature contemplated these multiple offenses as arising solely under

Michigan law, the laws of another jurisdiction that “substantially correspond[] to a law of

this state,” or a combination thereof.

Despite the Court of Appeals’ proper analysis of these subsections, our review of

MCL 257.625 as a whole leads us to conclude that the Legislature did express a clear

intent with regard to multiple punishments arising under MCL 257.625(1) and (5). As

with any statutory interpretation, we must give effect to the Legislature’s intent by

focusing first on the statute’s plain language. 22 When statutory language is clear and

unambiguous, we assume that the Legislature intended its plain meaning and we enforce

the statute as written. 23 Here, MCL 257.625(1) and (5) are silent on the issue of multiple

21
Id.
22
Madugula v Taub, 496 Mich 685, 696; 853 NW2d 75 (2014).
23
Id.

9
punishments and thus do not, when read in isolation, clearly evidence the Legislature’s

intent on whether multiple punishments are allowed.

However, we do not quarantine the text when interpreting statutes. Instead, we

must examine the statutory language as a whole to determine the Legislature’s intent. 24

In this respect, we find it significant that the Legislature specifically authorized multiple

punishments for some operating while intoxicated offenses in another subsection of the

statute. 25 MCL 257.625(7) creates a separate operating while intoxicated offense for

individuals who drive while intoxicated with a minor in the car (OWI-minor).26

Subsection (7)(d) provides in relevant part:

This subsection does not prohibit a person from being charged with,
convicted of, or punished for a violation of subsection (4) or (5) that is
committed by the person while violating this subsection. However, points
shall not be assessed under section 320a for both a violation of subsection
(4) or (5) and a violation of this subsection for conduct arising out of the
same transaction.[27]

Thus, under MCL 257.625(7)(d), the Legislature specifically authorized multiple

convictions and punishments for a person who commits OWI-minor and by that same

24
Id. at 698.
25
Although this argument was not made in the parties’ briefs filed in this Court or the
Court of Appeals, it was raised by defense counsel during oral arguments in this Court.
26
MCL 257.625(7) proscribes “operat[ing] a vehicle in violation of subsection (1), (3),
(4), (5), or (8) while another person who is less than 16 years of age is occupying the
vehicle.”
27
Emphasis added.

10
conduct also commits OWI-injury or causes “the death of another person” under

MCL 257.625(4) (OWI-death).

The specific authorization for multiple punishments contained in

MCL 257.625(7)(d) leads us to conclude that the Legislature did not intend to permit

multiple punishments for OWI and OWI-injury offenses arising from the same incident.

While subsection (7) expressly authorizes multiple punishments for certain operating

while intoxicated offenses, this authorization is limited to the circumstances described in

MCL 257.625(7)(d). And interpreting this subsection in the context of the statute as a

whole leads us to conclude that the Legislature intended to exclude all other multiple

punishments under MCL 257.625. 28 This implication is particularly probative of

legislative intent in this case because the express authorization of multiple punishments in

subsection (7)(d) involves one of the subsections under examination in this case,

MCL 257.625(5). The fact that the Legislature expressly authorized multiple

punishments for subsection (5) and a subsection other than subsection (1) demonstrates

that the Legislature did not intend to permit multiple punishments for violations of

subsections (1) and (5). 29 In other words, if the Legislature had intended to allow

28
Johnson v Recca, 492 Mich 169, 177; 821 NW2d 520 (2012) (“ ‘We interpret th[e]
words in [the statute in] light of their ordinary meaning and their context within the
statute and read them harmoniously to give effect to the statute as a whole.’ ”), quoting
People v Peltola, 489 Mich 174, 181; 803 NW2d 140 (2011).
29
See, e.g., Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993)
(“Courts cannot assume that the Legislature inadvertently omitted from one statute the
language that it placed in another statute, and then, on the basis of that assumption, apply
what is not there.”).

11
multiple punishments for subsections (1) and (5), it clearly knew how to do so, as

evidenced by the specific authorization in MCL 257.625(7)(d). 30 But neither

MCL 257.625(1) nor (5) contains similar language specifically authorizing the conviction

of and punishment for multiple offenses. Thus, in light of MCL 257.625(7)(d), the

omission of a similar clause providing explicit authority to convict a defendant of

multiple operating while intoxicated offenses arising out of the same incident in either

MCL 257.625(1) or (5) is a clear indication that the Legislature did not intend for

defendants to be convicted of and punished for OWI and OWI-injury arising out of the

same incident.

Further, to reach the opposite conclusion would violate our well-recognized rule

that we “must give effect to every word, phrase, and clause and avoid an interpretation

that would render any part of the statute surplusage or nugatory.” 31 That is, had the

Legislature generally intended to allow multiple punishments for every category of

operating while intoxicated offense arising from the same conduct, there would be no

need for the Legislature to specifically authorize multiple punishments for OWI-minor

and OWI-death or OWI-injury. To interpret MCL 257.625 as permitting multiple

punishments for other operating while intoxicated offenses would improperly render the

specific authorization under MCL 257.625(7)(d) surplusage.

30
See People v Houston, 473 Mich 399, 410; 702 NW2d 530 (2005).
31
State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715
(2002).

12
 Therefore, the Court of Appeals erred by concluding that the Legislature did not

“evince a clear expression of any intent to allow . . . multiple punishments for the same

offense.” 32 In light of the express statutory language permitting multiple punishments in

MCL 257.625(7)(d), the fact that MCL 257.625(1) and (5) do not contain any express

authorization for multiple punishments indicates that the Legislature did not intend to

permit a defendant to be convicted of both of these offenses for the same criminal

conduct. 33 Accordingly, we hold that the trial court violated the double jeopardy

prohibition by convicting defendant of both OWI under MCL 257.625(1) and OWI-injury

under MCL 257.625(5). 34

V. CONCLUSION

We conclude that defendant’s convictions of both OWI and OWI-injury for the

same intoxicated driving incident violates the multiple punishments prong of the double

32
Miller, unpub op at 4.
33
Because the Legislature evinced a clear intent with regard to the permissibility of
multiple punishments based on the plain language of the statute, the Court of Appeals did
not need to employ Ream’s abstract legal elements test. However, even assuming that
resort to Ream was necessary, the Court of Appeals did not apply Ream correctly because
it compared the elements of each offense as charged rather than focusing on the abstract
statutory elements of the two offenses, as required by Ream.
34
While plaintiff argues that there is no double jeopardy violation because defendant was
sentenced to concurrent, rather than consecutive, sentences and thus does not face
multiple sentences, we find this argument unpersuasive. A concurrent sentence does not
eliminate the potential collateral consequences of two convictions for the same offense.
See Ball v United States, 470 US 856, 864-865; 105 S Ct 1668; 84 L Ed 2d 740 (1985)
(including as examples of the collateral consequences of a second conviction as
potentially “delay[ing] the defendant’s eligibility for parole or result[ing] in an increased
sentence under a recidivist statute for a future offense”).

13
jeopardy clauses. Based on the plain language of MCL 257.625, the Legislature

expressed a clear intent not to allow conviction of and punishment for multiple offenses

arising from the same conduct, except where explicitly authorized by the statute.

Therefore, the Court of Appeals reached the right result when it vacated defendant’s OWI

conviction. 35 However, the Court of Appeals did so for the wrong reasons. Accordingly,

we affirm the Court of Appeals’ decision to vacate defendant’s OWI conviction under

MCL 257.625(1) on alternate grounds and remand to the trial court for resentencing.

David F. Viviano
Robert P. Young, Jr.
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
Richard H. Bernstein

35
People v Herron, 464 Mich 593, 609; 628 NW2d 528 (2001) (explaining that “it is an
appropriate remedy in a multiple punishment double jeopardy violation to affirm the
conviction of the higher charge and to vacate the lower conviction”).

14