PEOPLE v. PACE, 311 Mich. App. 1

PER CURIAM. In this interlocutory appeal, the prosecution appeals by leave granted an order entered by the Washtenaw Circuit Court denying plaintiff s application for leave to appeal a district court order which granted defendant’s motion for a specific jury instruction. We reverse and remand. The basic facts of this case are not in dispute. On June 5, 2013, as Michael John Bly used a pedestrian crosswalk to walk across Church Street in Ann Arbor, defendant made a left-hand turn onto Church Street and struck Bly with his vehicle.

As a result of the collision, Bly suffered head trauma that left him permanently disabled. Defendant was charged under MCL 257.601d(2) with the misdemeanor offense of committing a moving violation causing serious impairment of a body function to another person. Before trial, defendant moved the district court for a jury instruction requiring the prosecution to prove, as an element of the charged offense, that defendant was negligent in the operation of his vehicle.

The prosecution argued, in contrast, that to prove the charge of committing a moving violation causing serious impairment of a body function, the applicable jury instruction, M Crim JI 15.19, required the prosecution to prove only that (1) defendant committed a moving violation, and (2) defendant’s operation of the vehicle caused serious impairment of a body function to another person. According to the prosecution, M Crim JI 15.19 accurately stated the law and there was no requirement that the prosecution also prove that defendant was negligent in his actions.

The district court granted defendant’s motion, citing People v Tombs, 472 Mich 446; 697 NW2d 494 (2005), and reasoning that the Legislature did not expressly indicate an intention to dispense with negligence as an element of the offense. The Washtenaw Circuit Court denied the prosecution’s application for leave to appeal the district court’s order. We granted the prosecution’s application for leave to appeal the Washtenaw Circuit Court’s denial of its application.

In addition to the issue whether negligence is an element of the offense of committing a moving violation causing serious impairment of a body function, this Court directed the parties to address two issues: “(1) if negligence is not an element of committing a moving violation causing serious impairment of a body function, MCL 257.601d(2), then what, if any, mens rea is required for conviction of this offense; and (2) if no mens rea is required, is the statute constitutional?” People v Pace, unpublished order of the Court of Appeals, entered October 7, 2014 (Docket No. 322808).

On appeal, the prosecution contends that MCL 257.601d encompasses a preexisting negligence component such that the district court’s requirement of proof of negligence as a separate, distinct element was superfluous and contrary to legislative intent. Alternatively, the prosecution contends that the statute is a constitutional, strict liability offense. We conclude that the Legislature’s intention to make MCL 257.60Id a strict liability offense is implicit. Matters of statutory construction are questions of law, which this Court reviews de novo. People v Williams, 491 Mich 164, 169; 814 NW2d 270 (2012).

Determining the elements of a crime is also a question of law that we review de novo. People v Holtschlag, 471 Mich 1, 4-5; 684 NW2d 730 (2004). MCL 257.601d(2) provides: A person who commits a moving violation that causes serious impairment of a body function to another person is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00, or both. MCL 257.601d(4) states: As used in this section, “moving violation” means

an act or omission prohibited under this act or a local ordinance substantially corresponding to this act that involves the operation of a motor vehicle, and for which a fine may be assessed. Thus, MCL 257.601d(2) clearly requires the prosecutor to prove that (1) a moving violation was committed, (2) another person suffered serious impairment of a body function, and (3) there was a causal link between the injury and the moving violation, i.e., factual and proximate causation. See M Crim JI 15.19. The statutory provision is silent with regard to fault or intent.

However, “the failure to include a fault element in the statute does not end our inquiry. Where the statute does not include language expressly requiring fault as an element, this Court must focus on whether the Legislature nevertheless intended to require fault as a predicate to guilt.” People v Adams, 262 Mich App 89, 93; 683 NW2d 729 (2004).

In Tombs, 472 Mich at 453, our Supreme Court noted that the United States Supreme Court begins its analysis of “whether a criminal intent element should be read into a statute . . . with the proposition that criminal offenses that do not require a criminal intent are disfavored.” See Morissette v United States, 342 US 246; 72 S Ct 240; 96 L Ed 2d 288 (1952). “The Court will infer the presence of the element unless a statute contains an express or implied indication that the legislative body wanted to dispense with it.

Moreover, the Court has expressly held that the presumption in favor of a criminal intent or mens rea requirement applies to each element of a statutory crime.” Id. at 454-455, citing Morissette and its progeny. The Tombs Court expressly applied the precedent in Morissette and its progeny to the case before it. Id. at 456. According to Tombs, if there were no mens rea element in a criminal offense, “[a] statute could punish otherwise innocent conduct.” Id. at 458.

However, as Chief Justice COOLEY early observed in People v Roby, 52 Mich 577, 579; 18 NW 365 (1884): I agree that as a rule there can be no crime without a criminal intent; but this is not by any means a universal rule. One may be guilty of the high crime of manslaughter when his only fault is gross negligence; and there are many other cases where mere neglect may be highly criminal.

Many statutes which are in the nature of police regulations .. . impose criminal penalties irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible. Our Supreme Court still recognizes that there are circumstances where the lack of criminal intent does not preclude a criminal prosecution.

In Holtschlag, 471 Mich at 17, our Supreme Court noted that a conviction of involuntary manslaughter “requires that the defendant acted with a mens rea of culpable negligence” when the homicide occurs during the commission of a lawful act.

Citing People v Townsend, 214 Mich 267, 273-274; 183 NW177 (1921), and its discussion regarding the proofs necessary to demonstrate the “unlawful-act” and “lawful-act” theories of involuntary manslaughter, the Holtschlag Court noted: [I]f the defendant committed an unlawful act that resulted in death, it is sufficient to allege the commission of the unlawful act and the resulting death; whereas, if the defendant committed a lawful act resulting in death, the prosecutor must specifically allege the manner in which the defendant’s actions were grossly or culpably negligent.

That is, under Townsend, lawful-act manslaughter requires that the defendant acted with a mens rea of culpable negligence; whereas unlawful-act manslaughter does not require that the defendant acted with a specific mens rea — all that is required is that the defendant committed the unlawful act. [Holtschlag, 471 Mich at 17.] Thus, as observed in Holtschlag, under some circumstances, the fact that a defendant committed an unlawful act is sufficient to form the basis of a criminal charge, even where a specific mens rea is absent.

This Court also noted in People v Janes, 302 Mich App 34, 42; 836 NW2d 883 (2013), “that the Legislature can constitutionally enact offenses that impose criminal liability without regard to fault” and that “whether the Legislature intended to enact [such an] offense is generally a matter of statutory

interpretation.” These offenses, called strict liability offenses, are ones “in which the prosecution need only prove beyond a reasonable doubt that the defendant committed the prohibited act, regardless of the defendant’s intent and regardless of what the defendant actually knew or did not know.” Id. at 41-42 (quotation marks omitted). “[T]he distinction between a strict-liability crime and a general-intent crime is that, for a general-intent crime, the people must prove that the defendant purposefully or voluntarily performed the wrongful act, whereas, for a strict-liability crime, the people merely need to prove that the defendant performed the wrongful act, irrespective of whether he intended to perform it.” People v Lardie, 452 Mich 231, 241; 551 NW2d 656 (1996), overruled in part on other grounds by People v Schaefer, 473 Mich 418; 703 NW2d 774 (2005).

In Morissette, 342 US 246, the United States Supreme Court discussed the origin of criminal offense charges that disregard any intent. Citing the industrial revolution, increased traffic, the congestion of cities, and the wide distribution of goods, the Morissette Court noted that as dangers increased so did duties and regulations and that lawmakers sought to make the duties and regulations more effective by imposing criminal sanctions in some cases. Id. at 252-255.

These “public welfare offenses” do not necessarily “result in [a] direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize.” Morissette, 342 US at 255-256. [W]hatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element.

The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender’s reputation.

Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime. [Id. at 256.] The purpose of imposing criminal penalties for conduct not involving any criminal intent is “to require a degree of diligence for the protection of the public which shall render violation impossible.” Id. at 257 (quotation marks and citation omitted). Examples of strict liability offenses include narcotics laws, traffic laws, adulterated food or drug laws, criminal nuisances, and liquor control laws.

People v Nasir, 255 Mich App 38, 42; 662 NW2d 29 (2003). “Courts in this country have almost universally held that traffic violations are strict liability offenses, in which the motorist’s negligence or lack of intent to commit the infraction is irrelevant.” People v Jones, 132 Mich App 368, 370; 347 NW2d 235 (1984). For example, in Stanley v Turner, 6 F3d 399 (CA 6, 1993), the United States Court of Appeals for the Sixth Circuit addressed an Ohio statute defining involuntary manslaughter as causing death during the commission of a misdemeanor driving offense, without a separate mens rea requirement.

The Sixth Circuit noted that: [W]here a criminal statute prohibits and punishes conduct not innocent or innocuous in itself, the criminal intent element may be dispensed with if the criminal statute is designed for the protection of the public health and safety and if it has no common law background that included a particular criminal intent.

Because citizens are presumed to know the ordinary traffic safety laws and that violating them is dangerous and wrong, Ohio’s involuntary manslaughter statute, as applied in this case, is based on the obviously wrongful and blameworthy conduct of violating traffic safety laws. [Id. at 404.] As the Court in Stanley recognized, public welfare statutes, such as those regulating traffic, that dispense with the requirement of mens rea on the basis that citizens are presumed to know the ordinary traffic safety laws and that violating them is dangerous, do not offend due process. Id. at 404-405.

Based on the above reasoning and the Legislature’s use of the term “moving violation” without any reference to mens rea, we can infer that the Legislature intended to dispense with the criminal intent element of committing a moving violation causing serious impairment of a body function, and that it intended to make such a violation a strict liability offense. “[T]he Legislature is presumed to know of and legislate in harmony with existing laws.” People v Cash, 419 Mich 230, 241; 351 NW2d 822 (1984) (quotation marks and citation omitted).

MCL 257.60M is a public welfare statute — it imposes criminal penalties on a person who endangers the public, regardless of intent, by committing a moving violation causing serious impairment of a body function to another person. “[I]t is the motorist’s duty in the use and operation of his automobile to exercise ordinary and reasonable care and caution, that is, that degree of care and caution which an ordinarily careful and prudent person would exercise under the same or similar circumstances.” Zarzecki v Hatch, 347 Mich 138, 141; 79 NW2d 605 (1956).

The commission of a moving violation indicates that the motorist failed to exercise the requisite care and caution, regardless of intent, and as previously indicated, the violation of a traffic law is typically a strict liability offense. Nasir, 255 Mich App at 42. Thus, MCL 257.601d is a strict liability offense.

Because the Legislature implicitly intended to make MCL 257.60M a strict liability offense, the prosecution is required to prove only that (1) defendant committed a moving violation, (2) another person suffered serious impairment of a body function, and (3) there exists a causal link between the injury and the moving violation, i.e., factual and proximate causation. The prosecution is not required to prove that defendant operated his vehicle in a negligent manner, and the trial court erred by so concluding.

After reaching the conclusion that the prosecution is not required to prove negligence, we next consider whether MCL 257.601d is constitutional. Constitutional questions are reviewed de novo by this Court. People v Conat, 238 Mich App 134, 144; 605 NW2d 49 (1999). “[T]he United States Supreme Court has recognized as a general matter that the constitution does not preclude the enactment of even strict liability criminal statutes.” People v Quinn, 440 Mich 178, 185; 487 NW2d 194 (1992), citing Lambert v California, 355 US 225; 78 S Ct 240; 2 L Ed 2d 228 (1957).

See also Janes, 302 Mich App at 42, citing Quinn, 440 Mich at 188 (“Our Supreme Court has recognized that the Legislature can constitutionally enact offenses that impose criminal liability without regard to fault.”). This is especially the case with public welfare regulations. There does not appear to be a well-settled test for determining when a strict liability crime offends due process.

However, this Court has previously acknowledged that “ ‘[t]he elimination of the element of criminal intent does not violate the due process clause where (1) the penalty is relatively small, and (2) [the] conviction does not gravely besmirch.’ ” People v Olson, 181 Mich App 348, 352; 448 NW2d 845 (1989), quoting United States v Wulff, 758 F 2d 1121, 1125 (CA 6, 1985). See also Lardie, 452 Mich at 255 (noting that “the penalties for public-welfare strict-liability crimes generally are relatively small and do no grave damage to an offender’s reputation”) (quotation marks and citations omitted).

There is no question that the Legislature had the constitutional authority to enact MCL 257.601d as a strict liability offense concerning public welfare. Lambert, 355 US at 228; Quinn, 440 Mich at 188; Janes, 302 Mich App at 42. We are satisfied that imposing strict liability for the offense of committing a moving violation causing serious impairment of a body function does not offend due process.

First, the offense is a misdemeanor; that is, despite the severe harm that such an offense inflicts on the victim, it is punishable only by imprisonment for not more than 93 days, or a fine of not more than $500, or both. The penalty is thus relatively small. See People v Adams, 262 Mich App 89, 98-99; 683 NW2d 729 (2004) (upholding the strict liability crime of failing to pay child support despite a potential four-year term of imprisonment). Second, because the crime is a misdemeanor only, it is far less likely to “besmirch” the defendant. Cf.

Wulff, 758 F 2d at 1125 (“[A] felony conviction irreparably damages one’s reputation . . . .”). Thus, we conclude that it does not offend due process to hold individuals strictly liable for committing moving violations that cause serious impairment of a body function to another individual. In sum, MCL 257.601d imposes strict liability on a motorist who commits a moving violation causing serious impairment of a body function to another person, when the moving violation is the factual and proximate cause of the injury, and MCL 257.60M is constitutional.

The prosecution is not required to prove that defendant operated his vehicle in a negligent manner, and the trial court erred by so concluding. Reversed and remanded for proceedings not inconsistent with this opinion. We do not retain jurisdiction. Wilder, P.J., and Servitto and Stephens, JJ., concurred. This conclusion is also supported by the legislative history.

We recognize “that legislative [bill] analyses are ‘generally unpersuasive tool[s] of statutory construction’ ” and “do not necessarily represent the views of any individual legislator.” Kinder Morgan Mich, LLC v City of Jackson, 277 Mich App 159, 170; 744 NW2d 184 (2007) (citation omitted; second alteration in original). However, the analyses “do have probative value in certain, limited circumstances.” Id. MCL 257.601d was added to the Michigan Vehicle Code by 2008 PA 463, effective October 31, 2010.

At the same time MCL 257.601d was added, the offenses of negligent homicide, MCL 750.325, and felonious driving, MCL 257.626c, were repealed. The legislative bill analyses, attached to the prosecution’s brief, suggest that the changes were made in response to concerns by legislators that [t]he current standard for determining whether a person is guilty of negligent homicide or felonious driving is ambiguous, based on whether the person operated the vehicle in a careless, reckless or negligent manner. The language prescribing those offenses is antiquated and based on common law notions of negligence.

Applying those concepts to criminal law creates some uncertainty about what constitutes a violation, leading to inconsistent enforcement of the law. For example, a driver who loses control of a car on an icy overpass and is involved in a fatal accident could have foreseen the possibility that the bridge might be icy, and therefore could be charged with negligent homicide, although most people would not consider that to be appropriate in such a case.

The bill would remove that ambiguity, and instead enact prohibitions under which a person would not be guilty of a criminal offense unless a moving violation had occurred.

This would reduce inconsistencies in the application of the law and clarify proscribed conduct. [Senate Legislative Analysis, SB 104, August 5, 2008, available at <http://www.legislature.mi.gov/documents/2007-2008/ billanalysis/Senate/pdf/2007-SFA-0104-B.pdf> (accessed March 26, 2015) [http://perma.cc/9M4M-JY5T].] By enacting MCL 257.601d and repealing the felonious driving and negligent homicide statutes, the Legislature sought to erase uncertainty about what conduct was punishable by focusing solely on whether a motorist committed a moving violation, instead of determining whether the motorist’s conduct was careless, reckless, or negligent.