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Can you score OV 19 where the defendant throws narcotics out the window of a moving vehicle prior to stopping for police?

Question as originally presented: When scoring OV 19 for possession of methamphetamine, can you score a defendant throwing narcotics out the window of a moving vehicle prior to stopping for marked law enforcement vehicle? The traffic stop was initiated prior to the narcotics being thrown out the window. After the stop, more narcotics were found and the defendant admitted to throwing the narcotics out the window.

The facts presented in your question could support a score of 10 points under OV 19; 10 points are appropriate where, in relevant part, an “offender otherwise interfered with or attempted to interfere with the administration of justice[.]” MCL 777.49(c).

OV 19 may be scored for conduct that occurred after the sentencing offense was completed. People v Smith, 488 Mich 193, 202 (2010). Further, “the plain and ordinary meaning of ‘interfere with the administration of justice’ for purposes of OV 19 is to oppose so as to hamper, hinder, or obstruct the act or process of administering judgment of individuals or causes by judicial process.” People v Hershey, 303 Mich App 330, 343 (2013). “It ‘encompasses more than just the actual judicial process’ and can include ‘[c]onduct that occurs before criminal charges are filed,’ acts that constitute obstruction of justice, and acts that do not ‘necessarily rise to the level of a chargeable offense[.]’” Id., quoting People v Barbee, 470 Mich 283, 286-288 (2004) (first alteration in original). “OV 19 is generally scored for conduct that constitutes an attempt to avoid being caught and held accountable for the sentencing offense.” People v Baskerville, ___ Mich App ___, ___ (2020). The facts described in your question could support the conclusion that the defendant threw narcotics out of the car window in order to avoid being caught and held accountable for having the narcotics, and if this conclusion is supported by a preponderance of the evidence then it would probably be appropriate to score 10 points under OV 19. However, if the facts show that the narcotics were thrown out the window for some other purpose, or were thrown out the window before the defendant was aware that the police were following him, then scoring OV 19 may not be appropriate.

A table collecting decisions under OV 19 and summarizing when points were properly or improperly scored is available here, you may find this table useful. Ultimately, no binding legal authority has considered your specific fact pattern, and resolution of the issue is a question of law for the court to decide.

Tags: OV 19

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