                           STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                       UNPUBLISHED
                                                                       June 11, 2015
               Plaintiff-Appellee,

v                                                                      No. 321150
                                                                       Van Buren Circuit Court
RUBEN SANDOVAL,                                                        LC No. 13-063560-AR

               Defendant-Appellant.


Before: HOEKSTRA, P.J., and O’CONNELL and MURRAY, JJ.

PER CURIAM.

        Following a jury trial in district court, defendant was convicted of operating a
commercial motor vehicle with a blood alcohol level (BAL) of 0.04 or more but less than 0.08.
MCL 257.625m(1). The district court subsequently granted a directed verdict of acquittal. On
plaintiff’s appeal of right, the circuit court reversed the district court’s grant of a directed verdict
of acquittal and reinstated the jury’s guilty verdict. Defendant appeals by leave granted. We
affirm.

                                          I. BASIC FACTS

       Jose Patino, a police officer with the Michigan State Police Department, was driving
westbound on I-94 in Van Buren County at approximately 8:00 a.m. on January 30, 2013, when
he saw a tractor-trailer ahead of him swerve over the middle line and then into the shoulder of
the highway. Patino pulled the truck over. Defendant was the driver of the truck. Patino
smelled fresh beer in the passenger compartment and then found a cup of beer in the
compartment, suggesting to him that defendant was drinking beer while driving. Patino also
found empty and full beer cans in the passenger compartment. Testing of defendant’s blood,
drawn approximately one hour after Patino pulled defendant over, revealed that his BAL was
0.11.

        Defendant was charged pursuant to MCL 257.625m(1), which prohibits operating a
commercial vehicle with a BAL “of 0.04 grams or more but less than 0.08 grams . . . .” MCL
257.625m(1). After the jury rendered its guilty verdict, the district court interpreted MCL
257.625m(1) to require a BAL of less than 0.08 for conviction. Because evidence showed that
defendant’s BAL was 0.11 and not less than 0.08, the district court granted defendant’s motion
for a directed verdict of acquittal. On appeal, the circuit court agreed with the district court that


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the conviction under MCL 257.625m(1) required evidence that would allow a finding that
defendant drove his truck with a BAL of at least 0.04 but less than 0.08. But, the circuit court
reversed the district court’s directed verdict and reinstated the jury’s verdict of guilty after it
concluded that there was sufficient evidence from which the jury could infer that defendant
drove his truck with a BAL of 0.04 but less than 0.08.

                                         II. ANALYSIS

First, defendant argues that the circuit court lacked jurisdiction to hear the prosecution’s appeal.
The prosecution can file an appeal only “as provided by statute.” People v Torres, 452 Mich 43,
51; 549 NW2d 540 (1996), citing MCL 770.12. “Appeals to circuit court are specifically
authorized under MCL 600.8342 . . . .” People v Goecke, 457 Mich 442, 457 n 11; 579 NW2d
868 (1998). MCL 600.8342(2) states that “all appeals [to circuit court] from final judgments [of
a district court] shall be as of right . . .” MCL 600.8342(2). In addition, MCR 7.103(A)(1)
provides that: “The circuit court has jurisdiction of an appeal of right filed by an aggrieved party
from the following: (1) a final judgment or final order of a district or municipal court . . . .”
Additionally, MCL 770.12 states in relevant part as follows:

       (1) Except as provided in subsection (2), the people of this state may take an
       appeal of right in a criminal case, if the protection against double jeopardy under
       section 15 of article I of the state constitution of 1963 and amendment V of the
       constitution of the United States would not bar further proceedings against the
       defendant, from either of the following:

       (a) A final judgment or final order of the circuit court or recorder’s court, except a
       judgment or order of the circuit court or recorder’s court on appeal from any other
       court.

       (b) A final judgment or order of a court or tribunal from which appeal of right has
       been established by law.

        The district court granted defendant’s motion for directed verdict, and an acquittal based
on a directed verdict is a final judgment. People v Nix (After Remand), 208 Mich App 648, 649-
650; 528 NW2d 208 (1995). Pursuant to statute and court rule, appeals to the circuit court from
final judgments of the district court are as of right. MCL 600.8342(2); MCR 7.103(A)(1). And,
the prosecution is permitted by law to appeal a “final judgment or order of a court or tribunal
from which appeal of right has been established by law.” MCL 770.12(1)(b). Therefore, the
circuit court had jurisdiction over the prosecution’s appeal of the district court’s grant of
defendant’s motion for directed verdict if the protection against double jeopardy would not bar
further proceedings against defendant. Nix, 208 Mich App at 649-650; MCL 600.8342(2); MCL
770.12(1)(b); MCR 7.103(A)(1).

The prosecution’s appeal to the circuit court was not barred by the Double Jeopardy Clauses of
the Michigan and United States Constitutions. The Fifth Amendment of the United States
Constitution states that “[n]o person shall . . . be subject for the same offense to be twice put in
jeopardy of life or limb . . . .” US Const, Am V. And, Const 1963, art 1, § 15 states that “[n]o
person shall be subject for the same offense to be twice put in jeopardy.” The Double Jeopardy

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Clauses of the Michigan and United States Constitutions are construed consistently with each
other. People v Szalma, 487 Mich 708, 716; 790 NW2d 662 (2010). These Double Jeopardy
Clauses protect a person from being twice placed in jeopardy for the same offense in order to
prevent the state from making repeated attempts at convicting an individual for an alleged crime.
Torres, 452 Mich at 63.

        The constitutional protections against double jeopardy preclude “retrial following a court-
decreed acquittal, even if the acquittal is ‘based upon an egregiously erroneous foundation.’ ”
Evans v Michigan, __ US __; 133 S Ct 1069, 1074; 185 L Ed 2d 124 (2013), quoting Fong Foo v
United States, 369 US 141, 143; 82 S Ct 671; 7 L Ed 2d 629 (1962). However, “[i]f a court
grants a motion to acquit after the jury has convicted, there is no double jeopardy barrier to an
appeal by the government from the court’s acquittal, because reversal would result in
reinstatement of the jury verdict of guilt, not a new trial.” Evans, 133 S Ct at 1081 n 9. See also
People v Anderson, 409 Mich 474, 483-484; 295 NW2d 482 (1980).

        In this case, the district court granted defendant’s motion for a directed verdict of
acquittal after the jury found defendant guilty. On appeal, the prosecution sought to reinstate the
jury’s guilty verdict rather than to retry defendant. Therefore, the Double Jeopardy Clauses of
the United States and Michigan Constitutions did not bar the prosecution’s appeal. Evans, 133 S
Ct at 1081 n 9; Anderson, 409 Mich at 483-484.1

        Defendant does not make any argument regarding sufficiency of the evidence, which was
the issue on which the circuit court decided the case. “When an appellant fails to dispute the
basis of the trial court’s ruling, ‘[t]his Court . . . need not even consider granting plaintiffs the
relief they seek.’ ” See Derderian v Genesys Health Care Sys, 263 Mich App 364, 381; 689
NW2d 145 (2004), quoting Joerger v Gordon Food Serv, Inc, 224 Mich App 167, 175; 568
NW2d 365 (1997). In any event, we agree with the circuit court that a reasonable inference can
be made from the evidence that defendant was operating the vehicle with a BAL between .04 and
.08.




1
  Finally, defendant argues that the district court correctly interpreted MCL 257.625m(1) as
requiring a BAL of less than 0.08 for conviction and that the district court did not violate the
prosecution’s discretion regarding under what statute defendant should be charged. However,
the circuit court agreed with defendant’s and the district court’s interpretation of MCL
257.625m(1) and made no determination regarding any alleged violation by the district court of
the prosecution’s charging discretion. Rather, the circuit court’s reversal of the district court’s
directed verdict and reinstatement of the jury’s verdict of guilty was based solely on the
conclusion that there was sufficient evidence for the jury to find that defendant drove his truck
with a BAL of at least 0.04 but less than 0.08. Therefore, defendant’s arguments regarding
statutory interpretation and the district court’s alleged violation of the prosecution’s charging
discretion are irrelevant and this Court will not address them. People v Conat, 238 Mich App
134, 145; 605 NW2d 49 (1999).


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Affirmed.



                  /s/ Joel P. Hoekstra
                  /s/ Peter D. O’Connell
                  /s/ Christopher M. Murray




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