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Can a driving offense from Wisconsin that is a civil infraction, but would be a misdemeanor in Michigan, break the 10 year gap?

Your specific question has not been addressed by any binding or nonbinding legal authority and remains a question of law for the judge to decide. However, while out-of-state convictions are properly used in scoring the PRVs and for purposes of the 10-year-gap rule, the prior driving offense is a civil infraction under Wisconsin law, meaning that no criminal “conviction” was obtained. It is likely that even if the same conduct would be considered a misdemeanor in Michigan, it is not a “conviction or juvenile adjudication” under the language of MCL 777.50. For purposes of the ten-year-gap rule and scoring the PRVs, conviction is defined as including “assignment to youthful trainee (HYTA) status under MCL 762.11 to MCL 762.15 and a conviction set aside under MCL 780.621 to MCL 780.624.” MCL 777.50(4)(a). MCL 777.50 does not provide a comprehensive definition of everything that is considered a conviction, but it clearly includes certain potentially ambiguous situations as convictions. The failure to include out-of-state civil proceedings that would constitute criminal proceedings in Michigan suggests that such proceedings do not count as convictions and cannot be used to break the ten-year gap. Also instructive regarding the distinction between civil infractions and convictions is the unpublished, and thus nonbinding, case People v Cortes-Azcatl, unpublished per curiam opinion of the Court of Appeals, issued April 21, 2015 (Docket No. 319725), p 5-6, where the court held that two points were improperly assessed under PRV 5 because while the defendant was originally charged with a misdemeanor in Wisconsin, he successfully completed a counseling program that amended the original charge to a civil infraction “offense” under Wisconsin law; accordingly, the Wisconsin conduct could not be counted under PRV 5 because as a “civil infraction” it did not constitute a misdemeanor conviction. See also People v Butler, 865 NW2d 29 (July 1, 2015) (“[b]efore any such alleged crimes may be used to score OV 13, the prosecutor must prove by a preponderance of the evidence that the crimes actually took place, that the defendant committed them, that they were properly classified as felony ‘crimes against a person,’ MCL 777.43(1)(c), and that they occurred ‘within a 5-year period’ of the sentencing offense, MCL 777.43(2)(a)”).

Tags: Ten-Year Gap Rule

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