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Can you score OV 1 and OV 2 where the defendant injected the victim with methamphetamine?

Question as originally presented: The individual is being sentenced for CSC-III (Force or Coercion) and AWIGBH. During the incident, the victim reported that the defendant injected her with an unknown drug several times throughout the evening, which the defendant later admitted was methamphetamine. If the defendant was injecting the victim with the controlled substance, can OV 1 be scored at 20 points and can OV 2 be scored at 15 points?

The key issue is whether methamphetamine is a harmful chemical substance as defined by OV 1 and OV 2, which define harmful chemical substance as “a solid, liquid, or gas that through its chemical or physical properties, alone or in combination with 1 or more other chemical substances, can be used to cause death, injury, or disease in humans, animals, or plants.” MCL 750.200h(i). The Court has held that controlled substances used as weapons satisfy the definition of harmful chemical substances as used in OV 1 and OV 2. See, e.g., People v Ball, 297 Mich App 121, 122, 124 (2012) (heroin is a harmful chemical substance, not scoring points in this case because the heroin was not used as a weapon); People v Gary, 305 Mich App 10, 11-14 (2014) (noting that components of methamphetamine could constitute harmful chemical substances when used as a weapon, not scoring points in this case because the methamphetamine lab itself was not used as a weapon). The Court has explained that a substance satisfies the definition of harmful chemical substance when it “possess[es] an inherent or intrinsic ability or capacity to cause death, illness, injury, or disease” as required by the term harmful.” People v Blunt, 282 Mich App 81, 86, 89 (2009).

Based on the statutory definition and caselaw interpreting the term “harmful chemical substance,” it appears that methamphetamine would satisfy the definition as used in OV 1 and OV 2. Further, the fact that the defendant forcibly injected the substance into the victim would satisfy the requirement that the substance be used as a weapon. See Ball, 297 Mich App at 122-124.

Finally, OV 1 and OV 2 can only be scored on the basis of conduct involved in the sentencing offense. People v McGraw, 484 Mich 120, 133-135 (2009). In order to consider the injection of the substance it must have been injected during the sentencing offense – based on your question it seems like it was part of the sentencing offense, but the facts of the question do not address how long the incident lasted or when exactly the injections occurred so that is another thing to consider when you are scoring OV 1 and OV 2 in this case. Assuming this requirement is satisfied, we think it is appropriate to score OV 1 at 20 points and OV 2 at 15 points. However, ultimately, scoring decisions are questions of law for the court to decide.

Tags: OV 01 OV 02

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