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Can OV 9 be scored where the defendant and co-defendant were injured cooking methamphetamine?

OV 9 is not scored for crimes involving a controlled substance, MCL 777.22(3), so if manufacture of methamphetamine or operating a methamphetamine laboratory is the sentencing offense, OV 9 would not be scored.  

However, OV 3 is scored for all felony offenses to which the sentencing guidelines apply, and assigns points for the degree of physical injury sustained by a victim. See MCL 777.22; MCL 777.33. For purposes of OV 3, a “victim” includes any person harmed as a result of the offender’s conduct. People v Albers, 258 Mich App 578, 593 (2003). Further, “a coperpetrator is properly considered a ‘victim’ for purposes of OV 3 when he or she is harmed by the criminal actions of the charged party[.]” People v Laidler, 491 Mich 339, 341 (2012). An unpublished, and therefore nonbinding, MCR 7.215(C)(1), decision, People v Howe (Bryan), unpublished per curiam opinion of the Court of Appeals, issued May 20, 2014 (Docket No. 313143), slip op pp 1-2, 10-11, concluded that, under Laidler, 491 Mich at 352-353, “[a] defendant can be considered a ‘victim’ for purposes of scoring OV 3,” and held that OV 3 was properly scored based on injuries the defendant sustained when a methamphetamine laboratory exploded.

If your sentencing offense is an offense for which OV 9 is scored (see MCL 777.22 for information on which OVs are scored for which offenses), note that when scoring OV 9 only people placed in danger of injury or loss of life or property during conduct “relating to the [sentencing] offense” should be considered. People v Sargent, 481 Mich 346, 350 (2008). OV 9 instructs that you should “[c]ount each person who was placed in danger of physical injury or loss of life or property as a victim.” MCL 777.39(2)(a). In Laidler, the dissent argued that the language of OV 9 indicated that the Legislature intended for OV 9 to be scored when an offender or co-offender was killed or injured because it used the word “person” to define who constituted a “victim.”  See Laidler, 491 Mich at 356-357 (Cavanagh, J., dissenting). While this discussion is non-binding, it may be persuasive when interpreting OV 9. 

Ultimately, the issue you raise is a question of law to be addressed by the trial court.

Tags: OV 03 OV 09

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