                                                                         Michigan Supreme Court
                                                                               Lansing, Michigan
                                                Chief Justice:	            Justices:



Opinion                                         Clifford W. Taylor 	       Michael F. Cavanagh
                                                                           Elizabeth A. Weaver
                                                                           Marilyn Kelly
                                                                           Maura D. Corrigan
                                                                           Robert P. Young, Jr.
                                                                           Stephen J. Markman




                                                                    JULY 27, 2005

 PEOPLE OF THE STATE OF MICHIGAN,

      Plaintiff-Appellant,

 v                                                                        No. 126067

 DAVID WILLIAM SCHAEFER,

      Defendant-Appellee.
 ________________________________

 PEOPLE OF THE STATE OF MICHIGAN,

      Plaintiff-Appellant,

 v                                                                        No. 127142

 JAMES RICHARD LARGE,

      Defendant-Appellee.
 _______________________________

 BEFORE THE ENTIRE BENCH

 YOUNG, J.

      We granted leave to appeal in these cases and ordered

 that they be argued and submitted together to clarify the

 elements    of    operating    a    motor    vehicle         while       under        the

 influence    of    liquor     and    causing     death           (“OUIL       causing

 death”),    MCL   257.625(4).        In     addressing           this    issue,       we
revisit our decision in People v Lardie,1 which held, inter

alia, that to convict a defendant of OUIL causing death,

the      prosecution       must     prove     “that        the    defendant’s

intoxicated driving was a substantial cause of the victim’s

death.”2

       We conclude that the Lardie Court erred in holding

that     the    defendant’s       “intoxicated      driving”3     must   be    a

substantial cause of the victim’s death.                   The plain text of

§ 625(4) does not require that the prosecution prove the

defendant’s intoxicated state affected his or her operation

of the motor vehicle.           Indeed, § 625(4) requires no causal

link at all between the defendant’s intoxication and the

victim’s death.        The statute requires that the defendant’s

operation       of   the   motor     vehicle,        not   the    defendant’s

intoxicated      manner    of     driving,    must    cause      the   victim’s

death.         The   defendant’s     status    as     “intoxicated”      is    a

separate element of the offense of OUIL causing death.                        It

specifies the class of persons subject to liability under §

625(4):     intoxicated drivers.




1
    452 Mich 231; 551 NW2d 656 (1996).
2
    Id. at 259-260 (emphasis added).
3
    Id. at 234 (emphasis in original).



                                       2

     Quite simply, by enacting § 625(4), the Legislature

intended    to   punish     “operating         while    intoxicated,”      not

“operating in an intoxicated manner.”                   Therefore, to the

extent that Lardie held that the defendant’s intoxicated

driving must be a substantial cause of the victim’s death,

it is overruled.4

     Accordingly,     in    People        v    Schaefer,   we     vacate   the

judgment of the Court of Appeals and remand the case to the

Court of Appeals to address defendant’s remaining argument

that the trial court erred so as to require reversal in

making repeated references to defendant’s stipulation as to

his 0.16 blood-alcohol level during the jury instructions.

In People v Large, we reverse the judgment of the Court of

Appeals    and   remand    the   case     to    the    district    court   for

reconsideration of whether to bind defendant over on the

charge of OUIL causing death in light of the principles set

forth in this opinion.




4
  We do not disturb our other holdings in Lardie, including
that the prosecution need not prove negligence or gross
negligence by the defendant, that the defendant must have
“voluntarily” decided to drive “knowing that he had
consumed an intoxicating liquor,” and that § 625(4)
comports with constitutional due process principles.    Id.
at 249-251, 265-267.



                                     3

                              I. FACTS     AND   PROCEDURAL HISTORY

                                      A. PEOPLE       V   SCHAEFER

       In January 2002, defendant was driving on Interstate-

75    in    the    city       of     Lincoln       Park      with      his    friend     as    a

passenger         in    the    vehicle.               Defendant       admitted       that     he

consumed         three    beers       before          getting        behind    the     wheel.5

According to several eyewitnesses, defendant was tailgating

various cars and driving erratically.

       While on the freeway, defendant’s passenger abruptly

told       him    that        they    had        reached       their         freeway     exit.

Defendant swerved to exit the freeway, hit the curb, and

lost control of the car.                    The car rolled over, killing the

passenger.             Defendant stipulated at trial that he had a

0.16       blood-alcohol           level     almost         three      hours     after      the

accident.6

       Defendant         was       charged       with      OUIL      causing    death7      and

manslaughter with a motor vehicle.8                               At trial, a defense


5
  Defendant denied drinking the beer contained in the empty
bottles found in his vehicle. He claimed that the bottles
were left over from a party.
6
  At the time defendant was charged, § 625(1) set the
statutory intoxication threshold at a blood-alcohol content
of 0.10 grams per one hundred milliliters.      Pursuant to
2003 PA 61, however, the statutory intoxication threshold
has been reduced from 0.10 to 0.08.
7
    MCL 257.625(4).



                                                 4

expert witness testified that the exit ramp was safe for

speeds up to thirty miles per hour, but dangerous at any

greater      speed.    He   stated   that    he   would    have   expected

numerous accidents, including rollovers, during the thirty-

six years that the ramp was in existence and that he was

surprised to learn that there had been no other rollover

accidents in over twenty years.

       In     instructing   the   jury,     instead   of    reading    the

standard instruction for OUIL causing death, CJI2d 15.11,9




8
    MCL 750.321.
9
    CJI2d 15.11 provided at the time:

               (1) The defendant is charged with the
            crime of operating a motor vehicle under the
            influence of intoxicating liquor . . . or
            with an unlawful bodily alcohol level, or
            while impaired, and in so doing, causing the
            death of another person. To prove this
            charge, the prosecutor must prove each of the
            following elements beyond a reasonable doubt:

                            *        *       *

               (4) Third, that the defendant was under
            the influence of intoxicating liquor . . .,
            or had an unlawful bodily alcohol level, or
            was impaired while [he / she] was operating
            the vehicle.

               (5) Fourth, that the defendant voluntarily
            decided to drive knowing that [he / she] had
            consumed   alcohol  .  .  .   and  might   be
            intoxicated.



                                     5

the trial court read the text of the OUIL causing death

statute.      When the jury asked for additional instructions

during deliberations, the trial court said all it could do

was tell them what the statute said.          Thus, the court again

read the statute to the jury.          The jury convicted defendant

of OUIL causing death and negligent homicide.10              Defendant

was sentenced to concurrent prison terms of fifty months to

fifteen years for OUIL causing death and one to two years

for negligent homicide.

        On appeal, the Court of Appeals affirmed defendant’s

negligent homicide conviction, but reversed his conviction

of OUIL causing death.11         In a two-to-one decision, the

Court    of   Appeals   held   that    the   trial   court   erred   in

instructing the jury because it did not inform the jury

that defendant’s intoxicated driving must be a “substantial

cause” of the victim’s death, as required by Lardie.12               The



            (6)    Fifth,    that    the    defendant’s
         intoxicated [or impaired] driving was a
         substantial cause of the victim’s death.
10
   Negligent homicide, MCL 750.324, is a lesser-included
offense of manslaughter with a motor vehicle. MCL 750.325;
People v Weeder, 469 Mich 493, 497-498; 674 NW2d 372
(2004).
11
   Unpublished opinion per curiam, issued March 25, 2004
(Docket No. 245175).
12
     Id., slip op at 5.



                                  6

dissent concluded that the trial court properly instructed

the jury on the causation element of OUIL causing death by

reading     the    statute    to     the        jury.        We     granted    the

prosecutor’s application for leave to appeal and ordered

that    this   case    be    argued    and       submitted    with     People    v

Large.13

                              B. PEOPLE     V   LARGE

       In   July    2003,    while    driving       on   a   road    in    Jackson

County, defendant struck and killed an eleven-year-old girl

who was riding her bicycle in the late afternoon.                         The girl

emerged onto the road after descending from an elevated

driveway, the street view of which was partially obstructed

by vegetation.         The bicycle that she was riding did not

have any brakes.        Defendant was driving approximately five

miles an hour over the posted speed limit of fifty-five

miles per hour.         Despite swerving in an attempt to avoid

hitting the girl, the two collided.                      At the time of the

accident, defendant had a 0.10 blood-alcohol level.

       Defendant was charged with manslaughter with a motor

vehicle,14 OUIL causing death,15 OUIL (second offense),16 and


13
     471 Mich 923 (2004).
14
     MCL 750.321.
15
     MCL 257.625(4).



                                       7

violation        of   license    restrictions.17                At   defendant’s

preliminary examination, the prosecution called a sheriff’s

deputy     who    testified     as   an        expert    witness     in   accident

reconstruction.        The deputy testified that the accident was

unavoidable, opining that the collision still would have

occurred had defendant been sober and driving the speed

limit.     According to the deputy, a sober driver would have

required at least 1 1/2 seconds to notice the girl and

attempt     to    avoid   hitting     her.          On    the    basis     of   his

investigation, the deputy concluded that the girl emerged

onto the road, and the impact occurred, all within less

than one second.

       The district court bound defendant over on all counts

except OUIL causing death.           On appeal to the circuit court,

the court refused to reinstate the charge of OUIL causing

death.18     The prosecution then appealed to the Court of

Appeals, which affirmed the circuit court.19                          Relying on

Lardie, the Court of Appeals held that “[t]he prosecution

16
     MCL 257.625(1).
17
     MCL 257.312.
18
   The circuit court also dismissed the manslaughter charge
and remanded the case to the district court on the two
remaining misdemeanor counts.
19
  Unpublished opinion per curiam, issued August 10, 2004
(Docket No. 253261).



                                          8

failed to present sufficient evidence to justify a finding

that    defendant’s        intoxicated        driving        was    a     substantial

cause of the victim’s death . . . .”20                             In refusing to

entertain the prosecutor’s argument that Lardie was wrongly

decided, the Court of Appeals stated that “‘[a] decision of

the Supreme Court is binding upon this Court until the

Supreme Court overrules itself.’                      Therefore, we may not

revisit     the     holding        of   Lardie.”21             We       granted    the

prosecutor’s application for leave to appeal and ordered

that    this    case   be     argued     and        submitted       with    People   v

Schaefer.22

                            II.    STANDARD    OF   REVIEW

       Statutory interpretation is a question of law that is

reviewed       by   this      Court     de     novo.23            Similarly,      jury

instructions        that      involve    questions           of     law    are    also

reviewed       de   novo.24        In   reviewing        a    district        court’s

decision       to   bind    over    a   defendant,           the    lower     court’s



20
     Id., slip op at 4. 

21
     Id. (citation omitted). 

22
     471 Mich 923 (2004). 

23
   People v Moore, 470 Mich 56, 61; 679 NW2d 41 (2004);

People v Babcock, 469 Mich 247, 253; 666 NW2d 231 (2003). 

24
   People v Perez, 469 Mich 415, 418; 670 NW2d 655 (2003);

People v Gonzalez, 468 Mich 636, 641; 664 NW2d 159 (2003). 




                                         9

determination regarding the sufficiency of the evidence is

reviewed for an abuse of discretion, but the lower court’s

rulings based on questions of law are reviewed de novo.25

                                  III. ANALYSIS

                            A.     MCL 257.625(4)

       Our Legislature first enacted the “OUIL causing death”

statute as part of 1991 PA 98 in an attempt to increase the

criminal      penalties           associated       with      driving       while

intoxicated.26        The     Legislature       evidently     believed      that

sentences     resulting          from   involuntary       manslaughter      and

negligent      homicide          convictions      inadequately          deterred

intoxicated drivers from getting behind the wheel.27                       Thus,

to address this concern, the Legislature enacted the OUIL

causing      death    statute,          which     provides       more     severe

penalties,     with     the       apparent      expectation       that     these

heightened    penalties       would     deter     intoxicated     individuals

from driving.

       Our   OUIL     causing       death     statute,     MCL    257.625(4),

provides:



25
   People v Yost, 468 Mich 122, 126-127; 659 NW2d 604
(2003); People v Thomas, 438 Mich 448, 452; 475 NW2d 288
(1991).
26
     Lardie, supra at 253 & n 33.
27
     Id. at 246-247, 253.


                                        10

           A person, whether licensed or not, who
        operates a motor vehicle in violation of
        subsection  (1)   [under  the   influence  of
        alcoholic liquor, a controlled substance, or
        a combination of alcoholic liquor and a
        controlled substance, or having an unlawful
        body alcohol content], (3) [visibly impaired
        by the consumption of alcoholic liquor, a
        controlled substance, or a combination of
        alcoholic liquor and a controlled substance],
        or (8) [any body content of a schedule 1
        controlled substance] and by the operation of
        that motor vehicle causes the death of
        another person is guilty of a crime as
        follows:

           (a) . . . [A] felony punishable by
        imprisonment for not more than 15 years or a
        fine of not less than $2,500.00 or more than
        $10,000.00, or both. [28]

                              B.     PEOPLE    V   LARDIE

      In People v Lardie, this Court was presented with a

due process challenge to the OUIL causing death statute.29

The   defendants        in   the   two   consolidated           cases   in   Lardie

alleged that § 625(4) imposed criminal liability without

requiring     a    culpable        mental      state.          In   rejecting    the

defendants’       due   process      arguments,         this    Court   held    that



28
   MCL 257.625(4) (emphasis added).       The reference to
subsection 8—intoxication by a schedule 1 controlled
substance—in § 625(4) was added as part of 2003 PA 61. At
the time that defendants Schaefer and Large were charged, §
625(4) referenced only subsections 1 and 3.
29
   Although § 625(4) has been amended since our decision in
Lardie, none of the amendments limits the holding of Lardie
or is otherwise material to the resolution of the present
cases.


                                         11

OUIL causing death is a general intent crime and that “the

culpable act that the Legislature wishes to prevent is the

one in which a person becomes intoxicated and then decides

to drive.”30     We further held that “there is no requirement

[under § 625(4)] that the people prove gross negligence or

negligence”     because      “the   Legislature     essentially     has

presumed that driving while intoxicated is gross negligence

as a matter of law.”31

       This   Court   then   proceeded    to   examine   the   causation

element of the OUIL causing death offense, stating:

            The Legislature passed [§ 625(4)] in order
         to reduce the number of alcohol-related
         traffic fatalities. The Legislature sought to
         deter drivers who are “willing to risk
         current penalties” from drinking and driving.
         In seeking to reduce fatalities by deterring
         drunken driving, the statute must have been
         designed to punish drivers when their drunken
         driving caused another’s death.    Otherwise,
         the statute would impose a penalty on a
         driver even when his wrongful decision to
         drive while intoxicated had no bearing on the
         death that resulted. Such an interpretation
         of the statute would produce an absurd result
         by divorcing the defendant’s fault from the
         resulting injury. We seek to avoid such an
         interpretation.[32]

30
  Lardie, supra at 245. We stated, “[t]he Legislature must
reasonably have intended that the people prove a mens rea
by demonstrating that the defendant purposefully drove
while intoxicated or, in other words, that he had the
general intent to perform the wrongful act.” Id. at 256.
31
     Id. at 249, 251.
32
     Id. at 256-257 (emphasis in original).

                                    12

Thus, relying on policy justifications and its belief that

a contrary construction would lead to an “absurd result,”

the    Lardie       Court   held     that    “in       proving    causation,       the

people       must    establish       that       the     particular      defendant's

decision to drive while intoxicated produced a change in

that    driver's      operation      of     the       vehicle    that   caused     the

death of the victim.”33               According to the Lardie Court,

“[i]t is the change that such intoxication produces, and

whether it caused the death, which is the focus of [the

causation] element of the crime.”34

       The     Lardie       Court     summarized          the    three     distinct

elements       the     prosecution          must       prove     in     securing    a

conviction for OUIL causing death:

            (1) [That] the defendant was operating his
         motor vehicle while he was intoxicated, (2)
         that he voluntarily decided to drive knowing
         that he had consumed alcohol and might be
         intoxicated, and (3) that the defendant's
         intoxicated driving was a substantial cause
         of the victim's death.[35]

                C.      PRINCIPLES   OF   STATUTORY INTERPRETATION

       When interpreting a statute, it is the court’s duty to

give effect to the intent of the Legislature as expressed


33
     Id. at 258 (emphasis added). 

34
     Id. at 258 n 47 (emphasis in original). 

35
     Id. at 259-260 (emphasis added). 



                                          13

in the actual language used in the statute.36                          It is the

role of the judiciary to interpret, not write, the law.37 If

the   statutory       language    is    clear     and       unambiguous,     the

statute is enforced as written.38 Judicial construction is

neither necessary nor permitted because it is presumed that

the Legislature intended the clear meaning it expressed.39

                 D.     THE CAUSATION ELEMENT    OF   § 625(4)

      The plain text of § 625(4) requires no causal link

between    the    defendant’s      intoxication         and      the    victim’s

death.40     Section      625(4)       provides,       “A    person,     whether

licensed   or    not,    who     operates    a     motor      vehicle     [while

intoxicated] and by the operation of that motor vehicle

36
  Halloran v Bhan, 470 Mich 572, 576; 683 NW2d 129 (2004);
DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d
300 (2000).
37
   Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645
NW2d 34 (2002); State Farm Fire & Cas Co v Old Republic Ins
Co, 466 Mich 142, 146; 644 NW2d 715 (2002).
38
   People v Laney, 470 Mich 267, 271; 680 NW2d 888 (2004);
People v Phillips, 469 Mich 390, 395; 666 NW2d 657 (2003).
39
  Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d
663 (2002); People v Stone, 463 Mich 558, 562; 621 NW2d 702
(2001).
40
   Defendant Schaefer admits this point, stating that “[a]
bare reading of the statute does not require that the
defendant’s intoxicated driving be a substantial cause of
the victim’s death.” Schaefer brief at 12-13 (emphasis in
original).    He further states, “[t]he statute does not
require a nexus between the drunken driving, and the cause
of the accident.” Id. at 15.



                                       14

causes the death of another person is guilty of a crime

. . . .”41    Accordingly, it is the defendant’s operation of

the motor vehicle that must cause the victim’s death, not

the defendant’s “intoxication.”           While a defendant’s status

as “intoxicated” is certainly an element of the offense of

OUIL causing death, it is not a component of the causation

element of the offense.          Justice Weaver succinctly stated

this point in her concurrence in Lardie:

            The plain language of the statute clearly
         indicates   that   the  Legislature    intended
         causation to turn on the fact that the
         defendant    operated   the    vehicle    while
         intoxicated, rather than the changed manner
         in which, or how, the defendant operated the
         vehicle while intoxicated.[42]

       The Lardie Court’s reliance on policy considerations

in construing § 625(4) was misplaced.           It is true that the

cardinal rule of statutory interpretation is to give effect

to     the   intent   of   the    Legislature.43      However,    the

Legislature’s intent must be ascertained from the actual

text    of   the   statute,   not     from   extra-textual   judicial




41
     MCL 257.625(4) (emphasis added).
42
     Lardie, supra at 273 (emphasis in original).
43
  Grossman v Brown, 470 Mich 593, 598; 685 NW2d 198 (2004);
Parkwood Ltd Dividend Housing Ass'n v State Housing Dev
Auth, 468 Mich 763, 772; 664 NW2d 185 (2003).


                                    15

divinations of “what the Legislature really meant.”44                       As we

stated in Lansing Mayor, supra, “rather than engaging in

legislative mind-reading to discern [legislative intent],

we    believe    that    the     best    measure    of     the    Legislature's

intent is simply the words that it has chosen to enact into

law.”45

        The Lardie Court also erred in assuming that judicial

adherence to and application of the actual text of § 625(4)

“would produce an absurd result.”                    The result that the

Court     in    Lardie    viewed        as     “absurd”–imposing         criminal

liability under § 625(4) when a victim’s death is caused by

a    defendant’s      operation    of    the     vehicle    rather       than   the

defendant's intoxicated operation–reflects a policy choice

adopted by a majority of the Legislature.                        A court is not

free to cast aside a specific policy choice adopted on

behalf    of    the     people    of     the    state      by    their    elected

representatives in the Legislature simply because the court

would prefer a different policy choice. To do so would be

to    empower    the    least    politically       accountable       branch     of

government with unbridled policymaking power.                      Such a model


44
  See Lansing Mayor v Pub Service Comm, 470 Mich 154, 164;
680 NW2d 840 (2004); Robertson v DaimlerChrysler Corp, 465
Mich 732, 762; 641 NW2d 567 (2002).
45
     Lansing Mayor, supra at 164.



                                        16

of government was not envisioned by the people of Michigan

in ratifying our Constitution, and modifying our structure

of government by judicial fiat will not be endorsed by this

Court.

        Instead, we must construe the causation element of §

625(4)     according      to   the   actual     text    of    the    statute.

Section 625(4) plainly requires that the victim’s death be

caused by the defendant’s operation of the vehicle, not the

defendant’s       intoxicated    operation.        Thus,     the    manner    in

which    the     defendant’s    intoxication      affected     his    or     her

operation      of   the   vehicle    is     unrelated   to   the    causation

element     of      the   crime.          The   defendant’s        status     as

“intoxicated” is a separate element of the offense used to

identify the class of persons subject to liability under §

625(4).46


46
   The flaw in the Lardie Court’s analysis is readily
apparent when one considers the closely analogous crime of
operating a vehicle with a suspended or revoked license and
causing death.    MCL 257.904(4).    The text of § 904(4)
parallels the language in § 625(4).         Section 904(4)
provides:

             A person who operates a motor vehicle
          [under a suspended or revoked license] and
          who, by operation of that motor vehicle,
          causes the death of another person is guilty
          of a felony . . . . [Emphasis added.]

     Under the Lardie Court’s rationale, § 904(4) would
require that the defendant’s suspension or revocation
somehow affect (i.e., be a “substantial cause” of) the

                                      17

       Accordingly, we overrule Lardie only to the extent it

held that the prosecution must prove “that the defendant’s

intoxicated driving was a substantial cause of the victim’s

death.”47     We hold that the prosecution, in proving OUIL

causing     death,    must    establish    beyond   a   reasonable    doubt

that      (1) the defendant was operating his or her motor

vehicle in violation of MCL 257.625(1), (3), or (8); (2)

the defendant voluntarily decided to drive, knowing that he

or she had consumed an intoxicating agent and might be

intoxicated; and (3) the defendant’s operation of the motor

vehicle caused the victim’s death.48

       It is ironic that the Lardie Court recognized that the

Legislature’s        intent   in   passing   §   625(4)   was   “to   deter


manner by which the defendant operates the vehicle before
criminal liability may be imposed.    There is obviously no
textual basis for such a conclusion, just as there was no
such basis in Lardie. As Justice Weaver pointed out in her
concurrence in Lardie, the Lardie majority fundamentally
misunderstood the nature of a “status crime.”        Lardie,
supra at 271 n 8. The Lardie majority mistakenly took the
status element of the crime—that the defendant was
intoxicated—and fused it with the causation element of the
offense.   Therefore, to the extent that the Lardie Court
was simply attempting to articulate a proximate cause
requirement by creating its “substantial cause” test, the
Lardie   Court  erred   in  conflating   the  “status”   and
“causation” elements of the crime.
47
   Lardie, supra at 259-260 (emphasis added). As mentioned
in note 4 of this opinion, we do not disturb the other
holdings in Lardie.
48
     MCL 257.625(4); cf. Lardie, supra at 259.


                                     18

th[e]     gravely    dangerous    conduct”49      of   driving    while

intoxicated, yet interpreted § 625(4) in such a way so as

to limit substantially the applicability of § 625(4) beyond

that which the Legislature envisioned.             As Justice Weaver

noted    in   her   Lardie   concurrence,   the    Lardie   majority’s

“demanding burden of proof”–requiring the prosecution to

show that the defendant’s intoxication changed his or her

manner of operation–“was not intended by the Legislature

and is not found in the language of the statute.”50 Unlike

the Lardie Court, we believe that the best way to “deter

this gravely dangerous conduct” is to enforce the statute

as written and thereby give the statute the teeth that the

Legislature intended.51

        Having determined that § 625(4) requires the victim’s

death to be caused by the defendant’s              operation     of the


49
     Lardie, supra at 253.
50
     Id. at 272.
51
     As we noted in Robinson v Detroit, 462 Mich 439, 463-
468; 613 NW2d 307 (2000), we do not lightly overrule
precedent.   However, we do not believe that any of the
considerations   discussed  in   Robinson  counsel  against
overruling Lardie in the present cases.    Notably, we find
it difficult to conceive any possible situation in which a
“reliance interest” would ever exist in the context of a
criminal statute. Additionally, as noted by Justice Weaver
in Lardie, the majority opinion in Lardie defies “practical
workability” because the “change” in operating ability due
to intoxication that the prosecution must demonstrate
creates a nearly impossible burden of proof.


                                  19

vehicle, rather than the defendant’s intoxicated manner of

operation,          we   turn   to   the    issue   of    defining      the   term

“cause.”        In the criminal law context, the word “cause” has

acquired        a    unique,     technical       meaning.52        Accordingly,

pursuant to MCL 8.3a, we must construe the term “according

to [its] peculiar and appropriate meaning” in the law.53

        In criminal jurisprudence, the causation element of an

offense is generally comprised of two components:                        factual

cause     and       proximate    cause.54        The     concept   of    factual

causation is relatively straightforward.                      In determining

whether a defendant’s conduct is a factual cause of the


52
    Indeed, for more than a century, this Court has
recognized that “cause” is a term of art in criminal law.
See People v Cook, 39 Mich 236 (1878); People v Rockwell,
39 Mich 503 (1878); People v Townsend, 214 Mich 267, 277-
280; 183 NW 177 (1921).
53
     MCL 8.3a provides:

            All words and phrases shall be construed
         and understood according to the common and
         approved usage of the language; but technical
         words and phrases, and such as may have
         acquired a peculiar and appropriate meaning
         in the law, shall be construed and understood
         according to such peculiar and appropriate
         meaning. [Emphasis added.]

See also Babcock, supra at 257-258; People v Jones, 467
Mich 301, 304-305; 651 NW2d 906 (2002).
54
  People v Tims, 449 Mich 83, 95; 534 NW2d 675 (1995); see
also 1 Torcia, Wharton’s Criminal Law (15th ed), § 26;
LaFave & Scott, Handbook on Criminal Law, § 35, p 246.



                                           20

result, one must ask, “but for” the defendant’s conduct,

would the result have occurred?55           If the result would not

have occurred absent the defendant’s conduct, then factual

causation exists.56

       The     existence   of   factual   causation    alone,   however,

will not support the imposition of criminal liability.57

Proximate causation must also be established.              As we noted

in Tims, proximate causation is a “legal colloquialism.”58

It    is   a    legal   construct   designed   to     prevent   criminal

liability from attaching when the result of the defendant’s

conduct is viewed as too remote or unnatural.59                 Thus, a




55
   Tims, supra at 95; People v Barnes, 182 Mich 179, 194;
148 NW 400 (1914); see also 1 Torcia, Wharton’s Criminal
Law (15th ed), § 26; Perkins, Criminal Law (2d ed), pp 687-
688; LaFave & Scott, Handbook on Criminal Law, § 35, p 249
(1972) (“In order that conduct be the [factual] cause of a
particular result it is almost always sufficient that the
result would not have happened in the absence of the
conduct; or, putting it another way, that “but for” the
antecedent conduct the result would not have occurred.”).
56
     Tims, supra at 95.
57
     Tims, supra at 95.
58
     Id. at 96.
59
  See, e.g., Beale, The proximate consequences of an act,
33 Harv L R 633, 640 (1920).


                                    21

proximate cause is simply a factual cause “of which the law

will take cognizance.”60

        For       a    defendant’s      conduct        to     be    regarded     as     a

proximate cause, the victim’s injury must be a “direct and

natural result” of the defendant’s actions.61                               In making

this    determination,           it   is     necessary        to    examine    whether

there       was       an   intervening         cause        that    superseded        the

defendant’s conduct such that the causal link between the

defendant’s conduct and the victim’s injury was broken.                               If

an intervening cause did indeed supersede the defendant’s

act    as     a       legally    significant       causal         factor,   then      the

defendant’s conduct will not be deemed a proximate cause of

the victim’s injury.62

        The standard by which to gauge whether an intervening

cause    supersedes,            and   thus    severs        the    causal   link,      is

generally one of reasonable foreseeability.                            For example,

suppose that a defendant stabs a victim and the victim is

60
  1 Torcia, Wharton’s Criminal Law (15th ed), § 26, pp 147-
148; See also Perkins, Criminal Law (2d ed), p 690.
61
   Barnes, supra at 198; see also 1 Torcia, Wharton’s
Criminal Law (15th ed), § 26; Perkins, Criminal Law (2d
ed), pp 690-695; LaFave & Scott, Handbook on Criminal Law,
§ 35, pp 251-252 (1972); McLaughlin, Proximate cause, 39
Harv L R 149, 183 (1925).
62
   Cook, supra at 239-240; Townsend, supra at 277-279;
People v Vanderford, 77 Mich App 370, 372-373; 258 NW2d 502
(1977).



                                             22

then taken to a nearby hospital for treatment.                                 If the

physician is negligent in providing medical care to the

victim and the victim later dies, the defendant is still

considered to have proximately caused the victim’s death

because it is reasonably foreseeable that negligent medical

care     might      be     provided.63           At    the    same     time,    gross

negligence       or      intentional         misconduct         by     a   treating

physician      is    not    reasonably       foreseeable,        and    would    thus

break    the     causal      chain    between         the     defendant    and    the

victim.64

        The    linchpin       in     the    superseding         cause      analysis,

therefore, is whether the intervening cause was foreseeable

based on an objective standard of reasonableness.                               If it

was reasonably foreseeable, then the defendant’s conduct

will be considered a proximate cause.                          If, however, the

intervening act by the victim or a third party was not

reasonably          foreseeable—e.g.,                 gross      negligence        or


63
   Cook, supra at 240. See also Perkins, Criminal Law (2d
ed), p 716 (“And negligence, unfortunately, is entirely too
frequent in human conduct to be considered ‘abnormal.’”);
LaFave & Scott, Handbook on Criminal Law, § 35, p 259 (“In
short, mere negligence in medical treatment is not so
abnormal   that   the   defendant  should   be   freed   of
liability.”).
64
   Cook, supra at 240. See also Perkins, Criminal Law (2d
ed), p 719; LaFave & Scott, Handbook on Criminal Law, § 35,
p 259.


                                           23

intentional misconduct—then generally the causal link is

severed and the defendant’s conduct is not regarded as a

proximate cause of the victim’s injury or death.

       In criminal law, “gross negligence” is not merely an

elevated or enhanced form of ordinary negligence.                               As we

held    in    Barnes,      supra,       in     criminal    jurisprudence,          gross

negligence       “means          wantonness         and     disregard      of       the

consequences         which       may    ensue,      and    indifference       to    the

rights of others that is equivalent to a criminal intent.”65

       Accordingly,         in    examining        the    causation    element        of

OUIL causing death, it must first be determined whether the

defendant’s operation of the vehicle was a factual cause of

the victim’s death.               If factual causation is established,

it     must    then        be    determined         whether    the     defendant’s

operation of the vehicle was a proximate cause.                           In doing

so,    one    must    inquire          whether     the    victim’s    death     was    a

direct and natural result of the defendant’s operation of

the    vehicle       and    whether       an     intervening    cause     may      have

superseded and thus severed the causal link.66                        While an act


65
     Barnes, supra at 198.
66
   Justice Cavanagh suggests in his partial dissent that
both the Lardie Court and the majority in the present cases
require a “more demanding standard” of proximate cause in
the criminal context than that found in tort law. Post at
2.   Justice Cavanagh mischaracterizes both Lardie and the
present cases. First, we do not read Lardie to impose the

                                             24

of God or the gross negligence or intentional misconduct by

the victim or a third party will generally be considered a

superseding cause, ordinary negligence by the victim or a

third party will not be regarded as a superseding cause

because ordinary negligence is reasonably foreseeable.67



heightened form of proximate cause in criminal law that
Justice Cavanagh advocates.    In fact, in Tims, which was
decided just one year before Lardie, we explicitly rejected
that same argument. Second, contrary to Justice Cavanagh’s
assertion, we do not adopt a heightened form of proximate
cause in the present cases.        Instead, we are simply
applying the standard of proximate cause that this Court
articulated in Tims and that has existed in our criminal
jurisprudence for well over a century.
67
   Had the Legislature intended to require only factual
causation and not proximate causation as well, the
Legislature would have instead used the words “results in
death” rather than “causes the death.”

     Indeed, MCL 257.617, which requires motorists involved
in accidents to remain at the scene of the accident,
specifically uses the phrase “results in . . . death.”
Section 617(2) provides:

            [I]f the individual [flees the scene of
       an accident] and the accident results in
       serious impairment of a body function or
       death, the individual is guilty of a felony
       punishable by imprisonment for not more than
       5 years or by a fine of not more than
       $5,000.00, or both. [Emphasis added.]

Accordingly, the Legislature is well aware of how to draft
a statute that requires only factual causation and not
proximate causation.

     The United States Court of Appeals reached the same
conclusion in construing an analogous federal criminal
statute:  distribution of a controlled substance resulting
in death, 21 USC 841.    Specifically § 841(a)(1) makes it

                             25

                              E.      APPLICATION

                         i.        PEOPLE   V   SCHAEFER

     Defendant     argues      that         the     trial        court    erred    in

instructing the jury on OUIL causing death in two respects.

First,    defendant      contends            that      the        trial     court’s

instruction   on   the    causation             element     of    the     crime   was


illegal to “knowingly or intentionally . . . distribute
. . . a controlled substance” and § 841(b)(1)(C) provides
an enhanced sentence “if death or serious bodily injury
results from the use of such substance . . . .” (Emphasis
added.) In recently addressing the proximate cause issue,
the United States Court of Appeals for the Ninth Circuit
held:

              [P]roximate cause is not a required
         element for conviction and sentencing under §
         841(b)(1)(C). All that is necessary under the
         statutory language is that “death . . .
         results”   from  the  offense   described  in
         § 841(a)(1). . . . Cause-in-fact is required
         by the “results” language, but proximate
         cause . . . is not a required element.
         [United States v Houston, 406 F3d 1121, 1124-
         1125 (CA 9, 2005).]

     In so holding, the Ninth Circuit joined numerous other
circuits that reached the same conclusion.      See United
States v Soler, 275 F3d 146, 152 (CA 1, 2002); United
States v McIntosh, 236 F3d 968, 972-973 (CA 8, 2001);
United States v Robinson, 167 F3d 824, 830-832 (CA 3,
1999); United States v Patterson, 38 F3d 139, 145-146 (CA
4, 1994).

     Therefore,   if  the   Legislature  had   intended  to
eliminate proximate causation as an element of OUIL causing
death, it would have used the phrase “and by the operation
of that motor vehicle the death of another person results.”
The Legislature, however, deliberately chose to use the
word “cause” in § 625(4) and thereby incorporated the
technical, legal meaning of the term.



                                       26

flawed.         Second,      defendant     argues       that    the    trial       court

erred        when     it    reminded     the     jury    three        times    during

instructions about defendant’s stipulation as to his 0.16

blood-alcohol level.

        In    initially      instructing        the   jury     on   the     causation

element of OUIL causing death, the trial court read the

text of § 625(4) to the jury.                    Defendant objected to the

instruction, arguing that the standard jury instruction for

OUIL causing death, CJI2d 15.11, which incorporated this

Court’s       Lardie       holding,    should     have    been      read      instead.

Less than an hour into deliberations, the jury specifically

requested           clarification      from     the     trial       court     on     the

causation element of OUIL causing death:

             The Court: 	 Okay.   You’re asking to explain
                          under   the   influence, as   is
                          stated in Count I [OUIL causing
                          death]. [I]s that what you want
                          to know?

             Juror No. 11:            Also causing death. 


             The Court:       I’m sorry; also what? 


             Juror No. 11:         Under the influence causing

                              death.

             The Court:       Yeah, okay.    All I can do is
                              tell you what the statute says.
                              If that was the case, you have
                              to   decide  that.    [Emphasis
                              added.]




                                          27

Defendant again objected to the instruction, arguing that

the trial court did not adequately explain the causation

element of OUIL causing death.

       We agree that the trial court erred in instructing the

jury    on    causation,      but   not    for    the    reasons    offered     by

defendant.      Defendant argues that the causation instruction

was flawed because the trial court did not instruct the

jury    that     defendant’s        intoxicated         driving    must    be    a

“substantial cause” of the victim’s death, as required by

Lardie.        As discussed above, the             Lardie       Court erred in

requiring that the defendant’s                  intoxication, rather than

the defendant’s operation of the motor vehicle, constitute

the    substantial      cause.       Accordingly,         the    trial    court’s

causation instruction was not flawed in the manner asserted

by defendant.          Instead, we conclude that the trial court

erred because the word “cause” in § 625(4) is a legal term

of    art    normally   not    within      the    common      understanding     of

jurors, and thus, simply reading the statute to the jury

was    insufficient.          The   jury       could    not   be   expected     to

understand      that    the    statute        required    the    prosecutor     to

prove both factual causation and proximate causation.68


68
     While the trial court was not required to read the
jury the standard criminal jury instruction because they
are not binding authority, People v Petrella, 424 Mich 221,
277; 380 NW2d 11 (1985), the court was nevertheless

                                        28

       Having determined that the causation instruction was

flawed, we turn to whether the error was harmless.                  Mere

error alone in instructing the jury is insufficient to set

aside a criminal conviction.             Instead, a defendant must

establish    that   the    erroneous    instruction     resulted   in   “a

miscarriage of justice.”69         Specifically, by enacting MCL

769.26, our Legislature has provided:

              No judgment or verdict shall be set
         aside or reversed or a new trial be granted
         by any court of this state in any criminal
         case, on the ground of misdirection of the
         jury, or the improper admission or rejection
         of evidence, or for error as to any matter of
         pleading or procedure, unless in the opinion
         of the court, after an examination of the
         entire cause, it shall affirmatively appear
         that the error complained of has resulted in
         a miscarriage of justice.[70]

       As we noted in People v Cornell,71 in giving effect to

the    “miscarriage   of    justice”    standard   of   MCL   769.26,    a


obligated to “instruct the jury as to the law applicable to
the case”.    MCL 768.29.    While reading the applicable
statute to the jury may well be instructing the jury as to
the law applicable to the case in most circumstances, it
was not here because the statute contained a term of art
jurors are not presumed to understand, i.e., a jury would
not understand from a reading of the statute that the
existence of factual causation alone would be insufficient
to support a guilty verdict.
69
   MCL 769.26; People v Young, 472 Mich 130, 141-142; 693
NW2d 801 (2005).
70
     MCL 769.26 (emphasis added).
71
     466 Mich 335; 646 NW2d 127 (2002).



                                  29

reviewing court is required to classify the type of alleged

instructional           error       as      either        constitutional          or

nonconstitutional, and as either preserved or unpreserved.72

In Cornell, we held that instructional error based on the

misapplication          of     a   statute       is     generally       considered

nonconstitutional            error.73     As    such,     any   error    that    the

trial court committed in the present case in failing to

explain        the     causation         element        of      §    625(4)      was

nonconstitutional.              Moreover,       because      defendant    promptly

objected to the instruction and adequately articulated the

basis for the objection, the alleged error was properly

preserved.

       Accordingly, the alleged instructional error in this

case      is         appropriately         classified           as      preserved,

nonconstitutional error, as noted by the Court of Appeals.

In People v Lukity,74 we held that MCL 769.26 creates a

presumption          that     preserved     nonconstitutional            error    is

harmless unless the defendant demonstrates that the error


72
   Id. at 362-363, citing People v Carines, 460 Mich 750;
597 NW2d 130 (1999). Constitutional errors must further be
classified as either structural or nonstructural. Cornell,
supra at 363.
73
   Id. at 364-365; see also People v Rodriguez, 463 Mich
466, 473-474; 620 NW2d 13 (2000).
74
     460 Mich 484; 596 NW2d 607 (1999).



                                          30

was outcome determinative.75               Specifically, in       Lukity    we

stated     that    MCL    769.26     “presumes     that    a     preserved,

nonconstitutional error is not a ground for reversal unless

‘after     an   examination    of    the     entire   cause,      it    shall

affirmatively appear’ that it is more probable than not

that the error was outcome determinative.”76                   An error is

not    “outcome    determinative”      unless    it   “‘undermined         the

reliability of the verdict.’”77

        Applying    the     Lukity     standard       to    the        alleged

instructional error in the present case, we conclude that

any error on the part of the trial court in merely reading

the statute and failing to explain the causation element of

OUIL causing death was harmless.             There is no evidence that

the trial court’s failure to explain fully both the factual

cause    and    proximate   cause     components      of   the    causation

element of the offense was “outcome determinative” or that

the “reliability of the verdict was undermined.”


75
     Id. at 495-496.
76
     Id. (citation omitted).
77
   People v Whittaker, 465 Mich 422, 427; 635 NW2d 687
(2001), quoting People v Elston, 462 Mich 751, 766; 614
NW2d 595 (2000).     Recent cases where we found that
instructional error required reversal include People v
Mass, 464 Mich 615; 628 NW2d 540 (2001), People v Duncan,
462 Mich 47; 610 NW2d 551 (2000), and People v Rodriguez,
supra.



                                     31

       Assuming, arguendo, that the jury gave full credit to

the    testimony       of   defendant’s       expert    witness        on    highway

design, the most that the witness’s testimony established

was that the freeway exit was negligently designed.                                The

witness       presented     no   evidence      that    there     was    any    gross

negligence in the design of the freeway exit.                      As such, the

design    of     the    freeway      exit     could   not   be    considered        a

superseding cause that would prevent defendant from being

legally       regarded      as   a   proximate    cause     of    the       victim’s

death.        We conclude, therefore, that defendant has failed

to    rebut    the     presumption     that     the   alleged     instructional

error was harmless because he has not demonstrated that the

alleged       error     was      outcome      determinative       in        that   it

undermined the reliability of the verdict, as required by

MCL 769.26 and Lukity.78

       Defendant also argues that the trial court committed

error requiring reversal when it reminded the jury three

times during instructions about defendant’s stipulation as

to his 0.16 blood-alcohol level.79                    However, the Court of




78
  As noted earlier, defendant’s expert witness admitted at
trial that his defective design theory was inconsistent
with the actual history of accidents associated with the
exit ramp.
79
  Schaefer brief at 26 (“the judge reminded the jurors that
the parties stipulated that the Defendant’s blood alcohol

                                        32

Appeals declined to address this argument in light of its

resolution of this case.      Accordingly, we remand this case

to the Court of Appeals limited solely to the issue of

whether the trial court committed error requiring reversal

in making repeated references to the stipulation regarding

defendant’s   blood-alcohol    level.80   We   do   not   retain

jurisdiction.81




level was 0.16.    The reminder of the stipulation is used
three times in this instruction . . . .”).
80
  Justice Cavanagh’s ex post facto and due process concerns
are misplaced.    As the United States Supreme Court has
held, “The Ex Post Facto Clause, by its own terms, does not
apply to courts.    Extending the Clause to courts through
the rubric of due process thus would circumvent the clear
constitutional text.” Rogers v Tennessee, 532 US 451, 460;
121 S Ct 1693; 149 L Ed 2d 697 (2001).      Although it is
true, as Justice Cavanagh indicates, that prior precedent
from the United States Supreme Court and this Court has
held that there are due process limitations on the
retroactive application of judicial interpretations of
criminal statutes that are “unexpected and indefensible by
reference to the law which had been expressed prior to the
conduct in issue,” Post at 6, we believe that it is not
“indefensible or unexpected” that a court would, as we do
today, overrule a case that failed to abide by the express
terms of a statute.
81
    Because we conclude that the trial court’s other
instructional errors were harmless, the Court of Appeals is
to consider on remand only whether the trial court’s
multiple references to the stipulation constituted error
requiring reversal—i.e., that a “miscarriage of justice”
occurred, as required by MCL 769.26 and Lukity.      If the
Court of Appeals determines that no “miscarriage of
justice” occurred, defendant’s conviction of OUIL causing
death is to be affirmed.

                               33

                                ii.    PEOPLE   V   LARGE

      The first two elements of OUIL causing death are not

in dispute.       Defendant’s blood-alcohol level was 0.10 grams

and   he   voluntarily        chose      to     drive       knowing   that    he    had

consumed alcohol.             The uncertainty lies in the causation

element of the offense.

      Defendant’s operation of the vehicle was undeniably a

factual      cause      of     the     young        girl’s       death.        Absent

defendant’s operation of the vehicle, the collision would

not   have    occurred.          The     issue       of     proximate      causation,

however,     is   less       certain.         There       is   evidence     that    the

victim’s     death      was     the     direct        and      natural     result    of

defendant’s operation of the vehicle.                          At the same time,

the victim rode a bicycle without brakes down a partially

obstructed hill onto a busy road and, thus, according to

the prosecution’s own expert witness, made the collision

unavoidable.         Given the fact that during the preliminary

examination       the    parties        did     not       directly       address    the

proximate cause issue, including whether the victim’s own

behavior was a superseding cause, the proper course is to

remand this case to the district court for reconsideration

of    whether     to     bind     over        defendant        in   light    of     the

principles discussed in this opinion.                           We do not retain

jurisdiction.


                                         34

                              IV.      CONCLUSION

      The Lardie Court erred in holding that the defendant’s

“intoxicated driving” must be a substantial cause of the

victim’s death.       There is no textual basis for the Lardie

Court’s holding.      Indeed, the plain text of the OUIL causing

death statute requires no causal link at all between the

defendant’s    intoxication      and       the   victim’s   death.         The

defendant’s status as “intoxicated” is a separate element of

the offense and entirely irrelevant to the causation element

of the crime.      It is the defendant’s operation of the motor

vehicle that must cause the victim’s death under § 625(4),

not the manner by which the defendant’s intoxication may or

may   not   have   affected   the   defendant's      operating    ability.

Therefore, to the extent that              Lardie   held that § 625(4)

requires    the    defendant’s      intoxicated      driving     to   be     a

substantial cause of the victim’s death, it is overruled.

In proving the causation element of OUIL causing death, the

people need only prove that the defendant’s operation of the

motor vehicle caused, both factually and proximately, the

victim’s death.

      Accordingly, in People v Schaefer, the judgment of the

Court of Appeals is vacated and the case is remanded to the

Court of Appeals to address defendant’s remaining argument

that the trial court erred so as to require reversal in


                                     35

making repeated references to defendant’s stipulation as to

his 0.16 blood-alcohol level during the jury instructions.

In People v Large, the judgment of the Court of Appeals is

reversed and the case is remanded to the district court for

reconsideration of whether to bind defendant over on the

charge of OUIL causing death in light of the principles set

forth in this opinion.   We do not retain jurisdiction in

either case.

                              Robert P. Young, Jr.
                              Clifford W. Taylor
                              Elizabeth A. Weaver
                              Maura D. Corrigan
                              Stephen J. Markman




                             36

                 S T A T E     O F   M I C H I G A N 


                             SUPREME COURT 




PEOPLE OF THE STATE OF MICHIGAN,

      Plaintiff-Appellant,

v                                                         No. 126067

DAVID WILLIAM SCHAEFER,

     Defendant-Appellee.
_______________________________

PEOPLE OF THE STATE OF MICHIGAN,

      Plaintiff-Appellant,

v                                                         No. 127142

JAMES RICHARD LARGE,

     Defendant-Appellee.
_______________________________

WEAVER, J. (concurring).

      I   join   in   the    majority’s   holding,   analysis,       and

application in these cases.          As the majority concludes—and

as I urged in my separate concurrence in People v Lardie,

452 Mich 231, 267; 551 NW2d 656 (1996)—a proper reading of

the   statute    prohibiting    OUIL   causing   death   is   that    it

criminalizes a death caused by a person operating a car

while intoxicated, regardless of the manner of operation.
        I   write     separately      to     note        that    the   same   careful

consideration of the OUIL statutory text that results in

the above conclusion demands I reconsider another point I

made in my Lardie concurrence.

        Specifically,        I     suggested        in     Lardie      that   showing

proximate cause was not necessary to prove OUIL causing

death.        Lardie, supra at 268 n 5, 273 n 11.                      However, now

that the issue is squarely before the Court, and I have

reexamined the language of the statute in the two cases

before us, I now agree that the Legislature’s use of the

term    “causes       the    death”      indicates         that     the   common-law

meaning of “cause” must be used, and both cause in fact and

proximate cause need to be shown.

        The      dangers    of    driving        under    the    influence    are    no

doubt       of    concern    to    the     Legislature;           however,    as    the

majority indicates, had the Legislature wanted to remove a

showing of proximate cause from the                             statute prohibiting

OUIL causing death, it could have used the term “resulting

in the death” instead.

                                            Elizabeth A. Weaver




                                            2

                   S T A T E     O F    M I C H I G A N 


                               SUPREME COURT 



PEOPLE OF THE STATE OF MICHIGAN,

       Plaintiff-Appellant,

v                                                                    No. 126067

DAVID WILLIAM SCHAEFER,

     Defendant-Appellee.
_______________________________

PEOPLE OF THE STATE OF MICHIGAN,

       Plaintiff-Appellant,

v                                                                    No. 127142

JAMES RICHARD LARGE,

     Defendant-Appellee.
_______________________________

CORRIGAN, J. (concurring).

       I concur in and join every aspect of the majority

opinion.       I   write   separately       to   suggest        an    analytic

approach to the sole remaining issue to be resolved on

remand in People v Schaefer, i.e., whether the trial court

committed   error    requiring       reversal    when    it     reminded   the

jury   three   times    during       instructions       about    defendant’s

stipulation    regarding       his     blood-alcohol      level       of   0.16

grams.
        As the majority correctly observes, ante at 33 n 81,

in   determining       whether     the        multiple   references     to    the

stipulation        constitute     an    error      requiring     reversal,    the

Court    of    Appeals    should       consider      whether     defendant    has

established that a “miscarriage of justice” occurred, as

required by MCL 769.26 and People v Lukity, 460 Mich 484;

596 NW2d 607 (1999).

        In    assessing      whether          a    miscarriage     of   justice

occurred,      I   believe   it    is    noteworthy       that    defendant    is

mistaken in assuming that his blood-alcohol level at the

time of the accident is the sole factor that the jury was

entitled to consider in finding that he was intoxicated.

MCL 257.625(1) clearly provides two independent bases on

which    the   jury    could     have    concluded       that    defendant    was

intoxicated.          Specifically,           at   the   time    defendant    was

charged, § 625(1) provided that a defendant is considered

intoxicated for the purpose of OUIL causing death if either

of the following applies:

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

             (b) 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.




                                         2

Thus, pursuant to § 625(1), the jury could have found that

defendant was intoxicated either on the basis of evidence

of   defendant’s   blood-alcohol        level,   or   on   the   basis   of

evidence presented at trial demonstrating that defendant

was “under the influence of intoxicating liquor.”

      In instructing the jury, the trial court repeatedly

informed the jury of these two alternative bases:

        The Court:    	So, the elements are      either
                       operating under the influence,
                       that’s one.     Or, operating a
                       motor vehicle while the blood
                       alcohol content is 0.10.

                           *       *      *

                      It’s either driving under the
                      influence, or driving with a
                      blood alcohol content of 0.10.
                      And as a result of so operating
                      a motor vehicle, causes the
                      death of another person.

                      Those are the elements of Count
                      1 [OUIL causing death]. . . .

                           *       *      *

                      So, if you find in Count 1 [OUIL
                      causing     death]    that    the
                      defendant    operated   a   motor
                      vehicle under the influence of
                      intoxicants, or that he at the
                      time had a blood alcohol level
                      in excess of .10. And that as a
                      result of that, a person was
                      killed.   That is what you call
                      homicide caused by driving under
                      the    influence.       [Emphasis
                      added.]



                                   3

        Moreover, the trial court explicitly instructed the

jury that it was free to reject defendant’s stipulation

about    his    blood-alcohol         level.       Specifically,       the     trial

court    told   the        jury,   “You   have    a    right   to     accept   [the

stipulation],         or    you    have   a    right    to   reject    it.     It’s

entirely up to you.”               It is thus quite possible that the

jury    chose    to    ignore       completely     defendant’s        stipulation

about    his    blood-alcohol         level      when    it    found    defendant

guilty of OUIL causing death.1


1
     The prosecution presented various evidence at trial to
demonstrate that defendant was “under the influence of
intoxicating liquor,” pursuant to § 625(1)(a).        First,
defendant himself admitted that he consumed at least three
beers before getting behind the wheel.       Defendant also
admitted that his blood-alcohol level was 0.16 grams less
than three hours after the accident and that he did not
consume any alcoholic beverages between the time of the
accident and when his blood was later drawn at the
hospital.    The accident occurred about 10:08 pm, and
defendant’s blood was drawn at the hospital about 12:56 am.
The victim, defendant’s passenger, had a blood-alcohol
level of 0.35 grams approximately forty minutes after the
accident occurred.    Three hours after the accident, the
victim’s blood-alcohol level had declined to 0.24 grams.

     Second, several eyewitnesses told the police that
defendant was tailgating various cars on the freeway,
driving erratically, and swerved suddenly to get off the
highway.   Evidence was presented at trial that defendant
followed a car on the freeway for one mile with less than
one-half of a car length between the vehicles and while
traveling at a speed of sixty-five miles an hour.
Defendant acknowledged that the other two lanes of the
freeway were clear for the entire mile that he was
tailgating.     Defendant then proceeded to tailgate a
tractor-trailer in a similar manner.



                                          4

     Accordingly, in addressing on remand whether the trial

court committed error requiring reversal in making repeated

references to the stipulation, the Court of Appeals should

consider the alternative bases provided by § 625(1)(a) and

(b) and the trial court’s instruction that the jury was

entitled to disregard the stipulation.

                               Maura D. Corrigan




      Third, when the police investigated the crime scene,
 officers found numerous empty bottles of alcohol in
 defendant’s vehicle.   In addition to the empty bottles of
 beer, the police also found an empty vodka bottle in
 defendant’s vehicle.   Defendant denied drinking any vodka
 on the night of the accident.

      Fourth, the nature of the accident itself was
 described in great detail at trial.      Defendant suddenly
 swerved to get off the freeway and his vehicle rolled over.
 In the prior twenty years, there had been no rollover
 accidents on that same freeway exit.

                              5

                   S T A T E       O F    M I C H I G A N 


                               SUPREME COURT 



PEOPLE OF THE STATE OF MICHIGAN,

       Plaintiff-Appellant,

v                                                                No. 126067

DAVID WILLIAM SCHAEFER,

     Defendant-Appellee.
_______________________________

PEOPLE OF THE STATE OF MICHIGAN,

       Plaintiff-Appellant,
v                                                                No. 127142

JAMES RICHARD LARGE,

     Defendant-Appellee.
_______________________________

CAVANAGH, J. (concurring in part and dissenting in part).

       I concur in the result reached by the majority that,

to convict a defendant of OUIL causing death under MCL

257.625(4), the prosecution must prove that the defendant

was intoxicated and that his or her driving was both the

factual   and     the   proximate        cause   of   the   victim’s   death.

Like    Justice    Weaver,     I     have    carefully      reexamined   the

language of the statute and this Court’s interpretation of

that language in People v Lardie, 452 Mich 231; 551 NW2d

656 (1996).       In doing so, I have come to the conclusion
that the Lardie Court’s interpretation of the statute did

not effectuate the intent of the Legislature.                            As Justice

Weaver     noted      in     her     Lardie        concurrence,         the     Lardie

majority’s         conclusion       that     the    focus    must       be     on    the

defendant’s        “intoxicated       driving”        imposed      an    unworkable

burden on the prosecution.                  Lardie, supra at 272 (Weaver,

J., concurring).             After due consideration, I now believe

that the correct interpretation of the statute is that set

forth by the current majority.

       I   would      also    suggest        that     the    Lardie      majority’s

conclusion         that    the      defendant’s          driving      must      be    a

“substantial” cause of the victim’s death, while inartfully

worded,      was    likely     an    attempt        to   accentuate          that    the

concept of proximate cause in a criminal context is a more

demanding standard than that found in tort law.                               People v

Barnes, 182 Mich 179, 196-199; 148 NW 400 (1914); LaFave &

Scott, Criminal Law (2d ed), § 3.12, pp 279, 282.                              This is

true “because the potential deprivation of personal rights

is obviously much more extreme in criminal, as opposed to

tort, actions.”            People v Harding, 443 Mich 693, 738; 506

NW2d   482    (1993)       (Cavanagh,        J.,    concurring      in       part    and

dissenting in part).               Thus, in a criminal context, “[t]he

proximate      cause       standard        requires      a   sufficient         causal

connection between the defendant’s conduct and the result


                                            2

of that conduct.         ‘[I]t [must] appear[] that the death

resulted as the natural, direct, and necessary result of

the unlawful act . . . .’”                  Id. at 737, quoting Barnes,

supra at 196.

     As     our   criminal      jury        instructions    suggest,       “the

criminal    standard    for     proximate       cause    requires     a    more

direct causal connection than the tort concept of proximate

cause.”      Harding, supra      at 738.          Thus, in establishing

causation under MCL 257.625(4), it is critical to note the

following caveats:

          [C]riminal liability requires a more direct
     causal connection than merely finding that the
     defendant’s actions were “a” cause.     Where there
     are multiple independent causes contributing to
     the victim’s injury or death, so that the
     defendant’s conduct alone would not have caused
     the death, we would not impose liability for
     criminal    negligence    unless   the   defendant’s
     conduct    sufficiently     dominated   the    other
     contributing factors, to be fairly deemed a
     criminal proximate cause, and the injury was
     reasonably    foreseeable   from   the  defendant’s
     negligence.     More specifically, even though a
     victim’s   contributory    negligence  is   not   an
     affirmative defense, it is a factor to be
     considered by the trier of fact in determining
     whether the prima facie element of proximate
     cause has been proven beyond a reasonable doubt.
     [People v Tims, 449 Mich 83, 111; 534 NW2d 675
     (1995) (Cavanagh, J., dissenting).]

     Thus,    the    Lardie     Court’s       underlying    premise,       that

proximate    cause     should    be         examined    differently       in   a




                                       3

criminal         case,   was   correct,       but    the   current        majority’s

approach more accurately conveys the concept.

       I dissent, however, from the majority’s decision to

remand these cases for further proceedings under the rule

set    forth       in    today’s    opinion         because     I    believe       that

applying         the     new   rule,      which       overturns        our     prior

interpretation of MCL 257.625(4), violates due process and

infringes on the protections inherent in the Ex Post Facto

Clauses of the United States and Michigan constitutions.

US Const 1963, art I, § 10; Const, art 1, § 10.1

       In       People   v   Dempster,    396       Mich   700;     242     NW2d    381

(1976), this Court recognized the longstanding rule that to

avoid a deprivation of due process, “[a] criminal statute

must       be   ‘sufficiently      explicit     to     inform       those    who   are

subject to it what conduct on their part will render them


       1
      Although the Ex Post Facto Clauses do not directly
apply to the judiciary, People v Doyle, 451 Mich 93, 99;
545 NW2d 627 (1996), citing Marks v United States, 430 US
188; 97 S Ct 990; 51 L Ed 2d 260 (1977), the “principles
are applicable to the judiciary by analogy through the Due
Process Clauses of the Fifth and Fourteenth Amendments.”
Doyle, supra at 100, citing Bouie v City of Columbia, 378
US 347; 84 S Ct 1697; 12 L Ed 2d 894 (1964); see also
People v Stevenson, 416 Mich 383, 395; 331 NW2d 143 (1982);
People v Dempster, 396 Mich 700, 714-718; 242 NW2d 381
(1976).   For the purposes of my analysis, I consider the
concepts inextricably intertwined.     When a defendant is
deprived of due process, and, thus, is subjected to a
punishment not available at the time of his or her conduct,
this treatment is precisely what is contemplated, and
prohibited, under ex post facto principles.

                                         4

liable to its penalties’.”               Id. at 715, quoting Connally v

Gen Constr Co, 269 US 385, 391; 46 S Ct 126; 70 L Ed 322

(1926).       In Lardie, this Court examined MCL 257.625(4) in

great detail in an attempt to clarify its meaning.                              We

engaged in extensive endeavors of statutory construction to

determine things that were not evident on the statute’s

face.     In particular, we examined whether the statute was

meant to impose strict liability; if it was not, whether it

created a general or specific intent crime; whether the

Legislature intended that the prosecution prove some type

of     fault;    and      what     the   parameters         of     the   statute’s

causation requirement were.

        The resulting judicial interpretation of the statute

had,     of     course,    the      force      of    law,    and     sufficiently

explained to the citizenry what type of conduct on their

part    would    lead     to     criminal      culpability.         Through   that

decision,       the    people      of    this       state   were     given    “fair

warning” of a prohibited type of conduct.                          As the United

States Supreme Court has explained, “There can be no doubt

that a deprivation of the right of fair warning can result

not only from vague statutory language but also from an

unforeseeable and retroactive judicial expansion of narrow

and precise statutory language.”                 Bouie, supra at 352.




                                          5

        Our decision in Lardie, which had the support of six

justices, was the settled state of the law at the relevant

time of these defendants’ conduct.            Due process precludes

“retroactive application of a ‘judicial construction of a

criminal statute [that] is “unexpected and indefensible by

reference to the law which had been expressed prior to the

conduct in issue . . . .”’” Doyle, supra at 101, quoting

Bouie, supra at 354, quoting Hall, General Principles of

Criminal Law (2d ed), p 61.             There was nothing in Lardie

that suggested that the law was in some state of flux or

that this Court’s construction of the statute was less than

clear or complete.      No fair reading of Lardie would alert a

person that Lardie would later be revisited or revised.

Thus,     at   the   time   of   these    defendants’   conduct,   any

construction different than that set forth in Lardie was

both unexpected and indefensible.

        The majority’s assertion that “it is not ‘indefensible

or unexpected’ that a court would, as we do today, overrule

a case that failed to abide by the express terms of a

statute,” completely eliminates the protections against ex

post facto punishments and due process violations.                 See

ante at 33 n 80.        Under the majority’s reasoning, no new

court opinion would ever be “indefensible or unexpected,”

because the new opinion would always be “correct.”                 But


                                   6

this ignores the fact that every court believes an opinion

it issues is correct, just as the Lardie Court believed in

1996, or it would not issue the opinion.

        Further,    the         majority’s      reasoning    imposes    on      our

citizenry the untenable burden of guessing and predicting

when    one    court     might      overturn     a   prior    court’s    settled

interpretation of a statute.                 I find such a result in grave

conflict with the notions of due process and, thus, fatally

flawed.

        As such, I disagree that these defendants must again

undergo the criminal process under our new interpretation

of what was, at the relevant time, settled law.                           Such a

ruling violates the fundamental principles of due process

and subjects defendants to ex post facto punishment.                          While

the prosecution had a more difficult burden under Lardie,

today’s       decision      lessens      that     burden,    making     our     new

interpretation         an   unforeseeable        judicial     expansion       of   a

criminal statute.           Subjecting defendants to a new rule that

increases the chance of culpability, when their conduct was

committed when the old rule was settled law, is a clear

violation of defendants’ constitutional rights.

        Accordingly,        I    would    affirm     the     district    court’s

dismissal of defendant Large’s case because the district

court     found    that,         under   Lardie,      probable    cause        that


                                          7

defendant committed a crime was nonexistent.   The district

court did not abuse its discretion in finding so.   I would,

though, remand defendant Schaefer’s case for a new trial.

On remand, I would instruct the trial court to give the

jury instruction to which defendant Schaefer was entitled

at his original trial.

                             Michael F. Cavanagh




                             8

                   S T A T E     O F   M I C H I G A N 


                               SUPREME COURT 



PEOPLE OF THE STATE OF MICHIGAN,

     Plaintiff-Appellant,

v                                                          No. 126067

DAVID WILLIAM SCHAEFER,

     Defendant-Appellee
_______________________________

PEOPLE OF THE STATE OF MICHIGAN,

     Plaintiff-Appellant,

v                                                          No. 127142

JAMES RICHARD LARGE,

     Defendant-Appellee
_______________________________

KELLY, J. (concurring in part and dissenting in part).

     I    concur   with   the    majority’s   interpretation   of   MCL

257.625(4). I write separately to note that I too have

reexamined the language of MCL 257.625(4) and past readings

of it.      I continue to believe that the opinion of this

Court in People v Lardie1 and that of the Court of Appeals




     1
         452 Mich 231; 551 NW2d 656 (1996).
on which I sat2 were both correct in ruling that the statute

is constitutional.

       The defendant in Lardie had contended and the trial

court        had    found         that     the     statute        creates      an

unconstitutional strict liability, public welfare offense.

Both       appellate    courts      disagreed      that     the      statute   is

unconstitutional.           I now believe that the statute does not

impose strict liability on the intoxicated driver, as the

Court of Appeals ruled. Nor does it require the prosecutor

to prove that the intoxication caused the injury, as this

Court ruled.

       Lardie presented a different issue than the issue in

these cases; it concerned intent.                  Causation was not the

focus in Lardie, but it is here.                 The question here is what

causal link between defendant’s actions and the death does

the    statute     require    that       the   prosecutor     show.         After

thorough       consideration,        I     conclude     that      the    correct

interpretation         of   MCL   257.625(4)      is   that    the    prosecutor

must prove (1) the defendant was intoxicated and (2) the

defendant’s driving was the factual and proximate cause of

the victim’s death.

       I agree with Justice Cavanagh that the majority errs

in remanding People v Large for further proceedings under

       2
           207 Mich App 615; 525 NW2d 504 (1994).

                                          2

the new rule set forth in its decision.   Doing so violates

fundamental notions of fairness that are embedded in the

Due Process Clause of the federal and state constitutions.

US Const, Am V; Am XIV, § 1; Const 1963, art 1, § 17.

                              Marilyn Kelly




                              3

