Order Michigan Supreme Court
Lansing, Michigan
January 16, 2009 Marilyn Kelly,
Chief Justice
137268 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
PEOPLE OF THE STATE OF MICHIGAN, Diane M. Hathaway,
Plaintiff-Appellant, Justices
v SC: 137268
COA: 273333
Lapeer CC: 05-008462-FH
MATTHEW JOSEPH SOARES,
Defendant-Appellee.
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On order of the Court, the application for leave to appeal the July 24, 2008
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the question presented should be reviewed by this Court.
MARKMAN, J. (dissenting).
Defendant disregarded a stop sign while legally intoxicated and killed the victim,
in violation of MCL 257.625(4). The victim also had “any amount” of THC, the active
ingredient in marijuana, in his blood, in violation of MCL 257.625(8). The trial court
refused to allow any evidence showing the victim’s THC level, and defendant was
ultimately convicted of driving while intoxicated causing death, MCL 257.625(4). The
Court of Appeals reversed this conviction and ordered a new trial, stating that defendant
was entitled to introduce evidence concerning the victim’s THC level. Although I agree
that such evidence was admissible, because I am concerned that our caselaw now
suggests that the presence of a controlled substance in the blood of a victim may require
that a legally intoxicated defendant be acquitted as a matter of law, I would grant leave to
appeal to review this caselaw.
This Court has held that a defendant may use evidence of a victim’s negligence to
determine if defendant was the proximate cause of the victim’s death. People v Tims,
449 Mich 83, 97 (1995). More specifically, if an “intervening act by the victim or a third
party was not reasonably foreseeable — e.g., gross negligence or intentional
misconduct[,]” then defendant generally is not considered to be the proximate cause of
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the victim’s death. People v Schaefer, 473 Mich 418, 437-438 (2005). Additionally, the
presence of THC in a victim’s system, at the time of the accident, is a proper factor to
consider in determining if the defendant caused the death. People v Moore, 246 Mich
App 172, 179-180 (2001). However, in People v Lardie, 452 Mich 231 (1996), this
Court examined a situation in which a driver drank alcohol and smoked marijuana before
driving and, as a result, killed three passengers after crashing into a tree, in violation of
MCL 257.625(1),(4), and (8). Lardie stated that “the Legislature essentially has
presumed that driving while intoxicated is gross negligence as a matter of law.” Lardie,
supra at 251. If Lardie’s irrebuttable presumption of gross negligence applies to all
drivers involved in a multiple vehicle accident, including victims who violate MCL
257.625, then a defendant would likely avoid a conviction for killing a victim who is also
intoxicated, or who has “any amount” of a schedule 1 controlled substance in his system
because the defendant will not be the legal cause of death.
To more fully illustrate, consider the following: a victim, who is either intoxicated
or has “any amount” of a schedule 1 controlled substance in his system, has properly
stopped at a stop sign. While stopped, the defendant, an intoxicated driver, crashes into
the stopped victim. Applying Lardie’s irrebuttable presumption of gross negligence to
the victim, the defendant’s actions will not be deemed the proximate cause of death and
the defendant must be acquitted as a matter of law. This interpretation at least poses
significant problems for prosecutions of operating a motor vehicle while under the
influence of liquor or a controlled substance throughout this state by enabling intoxicated
defendants who have caused death to avoid sanction under MCL 257.625(4) because the
victim showed a similar disregard for the lives of others.
Because of these consequences, I would grant leave to appeal to consider whether
Lardie’s irrebuttable presumption of gross negligence: (a) is limited to the driver causing
death in violation of MCL 257.625(4) in a multiple driver situation; and (b) is limited to
only “intoxicated” drivers as defined in MCL 257.625(1) or is also applicable to any
driver who violates MCL 257.625(8) by operating a motor vehicle with “any amount” of
a schedule 1 controlled substance in his system at the time of the accident.
HATHAWAY, J., not participating. To avoid unnecessary delay to the parties in
cases considered by this Court before I assumed office, I follow the practice of previous
justices in transition and participate only in cases that need my vote to achieve a majority
for a decision.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
January 16, 2009 _________________________________________
0113 Clerk