                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   December 29, 2016
               Plaintiff-Appellee,

v                                                                  No. 328384
                                                                   Berrien Circuit Court
JASON ROBERT MYSLIWIEC,                                            LC No. 2014-015686-FH

               Defendant-Appellant.


Before: BORRELLO, P.J., and SAWYER and MARKEY, JJ.

PER CURIAM.

       Defendant was convicted by a jury of operating while intoxicated, MCL 257.625(1), third
offense, MCL 257.625(9)(c). Defendant was sentenced to 132 days in jail with credit for 72
days served and the additional 60 days to be served on SCRAM tether, as well as two years’
probation and 480 hours of community service. Defendant now appeals by right. For the
reasons set forth in this opinion, we affirm.

                                      I. BACKGROUND

        This case arises out of a traffic stop conducted during the early morning hours of
Saturday, June 21, 2014. Niles Police Officer, Shane Daniel, testified that he was on routine
patrol at approximately 1:50 or 1:55 a.m. on June 21, 2014. He saw an SUV driving toward him
on South 11th Street, which then made a U-turn. In making the U-turn, the SUV drove into a
driveway for a business on the street, overshooting the driving lane of the road, and continued to
drive away from Officer Daniel. Officer Daniel followed the SUV, and, after approximately one
mile, the SUV “veered to the right and was driving on the white fog line” on the outside of the
roadway before the grass or gravel surface begins. He continued to follow the SUV for
approximately two more miles and then pulled it over in a well-lit area. Defendant was the only
person in the SUV. Officer Daniel noticed that defendant’s eyes “looked red and bloodshot” and
that there was a strong smell of alcohol.

       Officer Daniel conducted four field sobriety tests and concluded that defendant was
driving under the influence. Officer Daniel asked defendant if he had been drinking, and
defendant indicated that he had not been drinking. Officer Daniel arrested defendant, and
defendant agreed to take a breath test using the DataMaster “DMT” machine. Two tests were
administered and defendant’s results were 0.23 and 0.24 blood-alcohol-level.


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        Defendant was subsequently charged with operating a vehicle while being under the
influence of intoxicating liquor or having an alcohol content of 0.08 grams or more per 210 liters
of breath, MCL 257.625(1), third offense, MCL 257.625(9)(c). Defendant was charged with the
third offense enhancement based on a prior Colorado conviction from June 2, 2000, for operating
while impaired and a prior Michigan conviction from July 15, 2008, for operating while
intoxicated. The parties do not dispute that defendant’s Colorado conviction was a violation of
Colo Rev Stat Ann 42-4-1301(1)(b).

        Before trial, defendant moved the trial court to dismiss the felony information.
Defendant argued that his prior conviction in Colorado did not meet the statutory definition of
“prior conviction” under MCL 257.625(25) because the Colorado statute does not substantially
conform to a law of this state. Defendant further argued that the felony information should be
dismissed as a result because operating while intoxicated is a felony if the violation occurs after
two or more convictions.

        A hearing on defendant’s motion was held on October 30, 2014, where defense counsel
addressed the issue of whether defendant’s charge was properly determined to be a third offense
rather than a second offense based on the wording of the Colorado statute, and he asked the trial
court to find that the Colorado statute was not analogous to the Michigan statute. Defense
counsel argued that the Colorado statute’s standard is based on “impairment in the slightest
degree” of the particular driver, while the Michigan statute refers to “an ordinary driver” and
uses intoxication that is observable by another person as the standard. Defense counsel argued
that “the Colorado statute would cover levels of intoxication and impairment that are far below
what would be recognized even under Michigan’s impaired statute.”

        The prosecution argued in response that under People v Wolfe, 251 Mich App 239; 651
NW2d 72 (2002), when addressing whether the statutes were substantially similar, the Michigan
statute requires that the law of the other state substantially correspond to Michigan law, not that
the statutes match identically. The prosecution argued that the Colorado statute essentially
required an evaluation of whether the driving was reasonable or “worse than an ordinary person
would drive” and that this is exactly the same standard under the Michigan statute.

        The trial court noted that there are two basic drunk driving crimes in Michigan, OUIL
and OWI, and that OWI has a much lower threshold. The trial court also noted that Colorado has
“a statute that is similar to the breakdown that Michigan has,” where the statute makes it a
misdemeanor for a person to drive “under the influence of alcohol” and defines a separate
misdemeanor of driving while “impaired by alcohol.” The court recognized that there were
some differences in wording between the two statutes. However, the court ultimately concluded
that the “conviction for impaired driving in Colorado is substantially similar and therefore it can
be counted as a prior conviction,” based on its findings that the Michigan legislature intended “to
capture a conviction in another state, like Colorado, where they have a similar breakdown
between OUIL, and OWI” and that “the legislative intent, both in Colorado and Michigan, I
believe is the same.” The trial court denied defendant’s motion.

       Defendant was convicted and sentenced as set forth above. This appeal ensued.

                                         II. ANALYSIS

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       Defendant argues that his prior conviction in Colorado for driving while ability impaired,
Colo Rev Stat Ann 42-4-1301(1)(b), does not satisfy the definition of “prior conviction” in MCL
257.625(25)(b) and thus was improperly counted as a third offense to enhance his instant
conviction to a felony.

      Whether a statute of another state satisfies the definition of “prior conviction” found in
MCL 257.625(25)(b) involves an issue of statutory construction, that we review de novo. Wolfe,
251 Mich App at 242.

        In Wolfe, 251 Mich App at 245, this Court construed the term “substantially
corresponding” contained within the statutory definition of “prior conviction” for purposes of
MCL 257.625. The defendant in Wolfe had been charged with operating while impaired under
MCL 257.625(3), while a person under the age of sixteen was in the vehicle, and the prosecution
sought to enhance the charge to a felony pursuant to MCL 257.625(7)(a)(ii) based on the
defendant’s prior Texas conviction for driving while intoxicated. Id. at 240-241. The Texas
statute provided that “[a] person commits an offense if the person is intoxicated while driving or
operating a motor vehicle in a public place” and defined “intoxicated” to mean “(A) not having
the normal use of mental faculties by reason of the introduction of alcohol . . . or (B) having an
alcohol concentration of 0.10 or more.” Id. at 244-245 (quotation marks and citation omitted).

        The Wolfe Court stated that “[t]he core issue in this case is whether MCL 257.625(1) and
(3) and [the Texas driving while intoxicated statute] are substantially corresponding laws within
the meaning of [what is now MCL 257.625(25)(b)].” Id. at 245. The Court determined that
“substantial” means “being such with respect to essentials: two stories in substantial agreement;
pertaining to the substance, matter, or material of a thing; pertaining to the essence of a thing.”
Id. at 245 (quotation marks and citation omitted). The Court also determined that
“corresponding” means “similar in position, form, etc: corresponding officials in two states,” and
that synonyms for “corresponding” include “like, akin, alike, analogous, and comparable.” Id.
(quotation marks and citation omitted). The Wolfe Court held that the “plain language” of the
Michigan and Texas statutes “indicates that they are substantially corresponding statutes that
require ‘no judicial gloss to show [their] similarity,’ ” reasoning that “[w]hile the Michigan and
Texas laws employ different words, it is clear that each of the statutes in question uses similar
subjective criteria to prohibit similar conduct pertaining to the same essence, namely, drunk
driving.” Id. at 245-246 (first alteration in original). The Court emphasized that Michigan’s
statutory definition of prior conviction “requires that the law of the other state ‘substantially
correspond’ to a law of this state; it does not require an identical match.” Id. at 246.

        In this case, there are “two basic ‘drunk driving’ crimes” in Michigan. Oxendine v
Secretary of State, 237 Mich App 346, 352; 602 NW2d 847 (1999). The first is driving while
intoxicated as set forth in MCL 257.625(1); the second is driving while visibly impaired as set
forth in MCL 257.625(3).

       Ordinarily, a person who is convicted of violating MCL 257.625(1) is guilty of a
misdemeanor. MCL 257.625(9)(a). However, “[i]f the violation occurs after 2 or more prior
convictions . . . the person is guilty of a felony.” MCL 257.625(9)(c). Likewise, a person
convicted of violating MCL 257.625(3) is ordinarily guilty of a misdemeanor, MCL


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257.625(11)(a), but “[i]f the violation occurs after 2 or more prior convictions . . . the person is
guilty of a felony,” MCL 257.625(11)(c).

       For purposes of both these offenses, the term “prior conviction” is defined in MCL
257.625(25)(b) in relevant part as follows:

         (b) “Prior conviction” means a conviction for any of the following, whether under
         a law of this state . . . or a law of another state substantially corresponding to a
         law of this state . . . :

         (i) . . . a violation or attempted violation of any of the following:

         (A) This section . . . or a violation of any prior enactment of this section in which
         the defendant operated a vehicle while under the influence of intoxicating or
         alcoholic liquor or a controlled substance, or a combination of intoxicating or
         alcoholic liquor and a controlled substance, or while visibly impaired, or with an
         unlawful bodily alcohol content. [Emphasis added.]


        In the instant case, defendant was convicted of driving while intoxicated under MCL
257.625(1), and that offense was enhanced to a felony based on defendant’s prior two drunk
driving convictions—one from Michigan and one from Colorado. Defendant does not dispute
his prior Michigan conviction. The issue is whether defendant’s prior Colorado conviction under
Colo Rev Stat Ann 42-4-1301(1)(b) counts as a prior conviction for purposes of MCL
257.625(25)(b) sufficient to enhance defendant’s instant conviction to a felony. Because the
state does not contend that the Colorado statute corresponds to MCL 257.625(1), for the
Colorado conviction to count as a prior conviction it must substantially correspond to MCL
257.625(3). MCL 257.625(25)(b)(i)(A).

        At the time that defendant was convicted,1 the Colorado statute provided in relevant part
as follows:

         It is a misdemeanor for any person who is impaired by alcohol or by one or more
         drugs, or by a combination of alcohol and one or more drugs, to drive any vehicle
         in this state. [Colo Rev Stat Ann 42-4-1301(1)(b).]

                                                  ***

         ‘[D]riving while ability impaired’ means driving a vehicle when a person has
         consumed alcohol or one or more drugs, or a combination of both alcohol and one
         or more drugs, which alcohol alone, or one or more drugs alone, or alcohol
         combined with one or more drugs, affects the person to the slightest degree so
         that the person is less able than the person ordinarily would have been, either



1
    Portions of the statute were amended effective August 5, 2016. See HB 15-1043.


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       mentally or physically, or both mentally and physically, to exercise clear
       judgment, sufficient physical control, or due care in the safe operation of a
       vehicle. [Colo Rev Stat Ann 42-4-1301(1)(g) (emphasis added).]

       The corresponding Michigan statute provides as follows:

       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 when,
       due to the consumption of alcoholic liquor, a controlled substance, or other
       intoxicating substance, or a combination of alcoholic liquor, a controlled
       substance, or other intoxicating substance, the person’s ability to operate the
       vehicle is visibly impaired. If a person is charged with violating subsection (1), a
       finding of guilty under this subsection may be rendered. [MCL 257.625(3)
       (emphasis added).]


         The offense of operating while visibly impaired in MCL 257.625(3) is a lesser included
offense of the crime set forth in MCL 257.625(1) and does not require the prosecution to prove
as great a degree of intoxication. People v Lambert, 395 Mich 296, 305; 235 NW2d 338 (1975).
The standard for proving that a driver’s ability was visibly impaired is that the “defendant’s
ability to drive was so weakened or reduced by consumption of intoxicating liquor that defendant
drove with less ability than would an ordinary, careful and prudent driver,” and that the reduced
ability to drive is “visible to an ordinary, observant person.” Id. (emphasis added).

         It is clear that both MCL 257.625(3) and Colo Rev Stat Ann 42-4-1301(1)(b) involve the
same “essence,” Wolfe, 251 Mich App at 245; that is they both proscribe driving after consuming
alcohol when such consumption diminishes one’s capacity to drive in an ordinarily safe and
careful manner, see Lambert, 395 Mich at 305. While the Colorado statute refers to how “the
person ordinarily” would have driven without consuming alcohol, and the Michigan standard
refers to “an ordinary, careful and prudent driver,” this is not a material difference. Each statute
simply sets a baseline of ordinary, reasonably safe and careful driving against which to judge the
driving of a person who has consumed alcohol. The Michigan baseline is phrased in terms of the
hypothetical ordinary driver who drives in a careful and prudent manner, while the Colorado
standard assumes that the person driving would ordinarily “exercise clear judgment, sufficient
physical control, or due care in the safe operation of a vehicle,” Colo Rev Stat 42-4-1301(1)(g).
Both standards rely on assumptions about ordinary driving and essentially require police officers
to judge a person’s driving based on commonly accepted notions of safe driving. Thus, the
statutes have the same fundamental purpose and are directed at conduct that is “corresponding”
because it is “like, akin, alike, analogous, and comparable.” Wolfe, 251 Mich App at 245. MCL
257.625(25) only “requires that the law of the other state ‘substantially correspond’ to a law of
this state; it does not require an identical match.” Wolfe, 251 Mich App at 246. The statutes may
“employ different words,” but they clearly are directed at the “same essence.” Id. at 245-246.

        Defendant relies on Oxendine, 237 Mich App at 357, to support the proposition that the
Colorado statutory language creates a much lower threshold of impairment than the Michigan
statute does. However, the Court in Oxendine specifically limited its analysis to “whether a

                                                -5-
conviction of violating the North Carolina impaired driving statute based solely on a finding that
one drove ‘[w]hile under the influence of an impairing substance’ substantially corresponds to
the Michigan crime of OUIL [i.e. MCL 257.625(1)].” Id. at 351(first alteration in the original;
citation omitted). The Court did not determine whether the North Carolina statute at issue
substantially corresponded to Michigan’s offense of operating while visibly impaired, found in
MCL 257.625(3). Here, in contrast, the above analysis demonstrates how the Colorado statute
substantially corresponds to MCL 257.625(3).

       The Colorado statute under which defendant was previously convicted substantially
corresponds to MCL 257.625(3) and thus defendant’s operating while intoxicated conviction was
properly enhanced to a felony pursuant to MCL 257.625(9)(c).

       Affirmed.



                                                            /s/ Stephen L. Borrello
                                                            /s/ David H. Sawyer
                                                            /s/ Jane E. Markey




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