Question as originally presented: The defendant resisted arrest and ended up with a bloody nose/mouth due to a physical altercation with the police. As he was refusing to get into the patrol car, he turned and spit blood into the face of the arresting officer. Can OV 3 be scored 10 points for bodily injury requiring medical treatment due to the fact that the defendant’s blood is a bodily fluid that may contain infectious disease and the officer was treated by EMS with disinfectant wipes on scene?
You raise an interesting question that has not yet been addressed by any binding legal authority. Our committee could not come to a consensus on a recommended answer; however, we will present the two lines of argument below.
One argument is that zero points should be scored because to score 10 points under OV 3, the victim must sustain a bodily injury requiring medical treatment. MCL 777.33(1)(d). In your case, there does not appear to be evidence that the officer had a bodily injury. The Court has defined bodily injury as encompassing “anything the victim would, under the circumstances, perceive as some unwanted physically damaging consequence.” People v McDonald, 293 Mich App 292, 298 (2011). While no case has addressed contact with blood in the context of OV 3, the Court has held that bodily injury includes actually infecting someone with a sexually transmitted disease. However, in your case there is no evidence to show that the blood that was spit at the officer was able to transmit an infectious disease or that the officer was infected with any disease. Further, there is no case interpreting OV 3 to include the possibility of bodily injury, and the plain language of the statute appears to only contemplate actual bodily injury. Accordingly, in your case, where there was only the possibility that the blood spit at the officer might have been able to transmit an infectious disease, and there is no evidence that the officer was actually infected with any disease, the facts do not support a finding that there was a bodily injury. This conclusion is supported by an unpublished (and therefore nonbinding) case. In People v Richardson, unpublished per curiam opinion of the Court of Appeals, issued October 13, 2016 (Docket No. 327729), p 1, the Court held that “the phrase bodily injury does not appear to encompass possible injury and, in this case, it is undisputed that the victim did not become infected with a sexually transmitted disease.” Accordingly, the Court held that OV 3 should have been scored at zero points. Id. at 2. The Court in Richardson noted that in the context of OV 1 (use of a weapon), the Court has held that spitting HIV positive blood at an officer supported a score of OV 1, but distinguished that case from a situation where no disease was actually transmitted. The case you describe in your question appears to fit the distinction – a situation where there is no evidence that the blood was tainted with an infectious disease and no evidence that any person was actually infected. Id. at 1, citing People v Odom, 276 Mich App 407, 411-413 (2007). Additionally, whether or not medical treatment is actually received is not determinative of whether the victim required medical treatment – the focus is on the necessity for treatment. MCL 777.33(3). So the fact that EMS treated the officer on the scene does not automatically satisfy the requirement under OV 3 that medical treatment was required.
A prosecutor could argue that the analysis about regarding scoring zero points is not so clear cut, and point to People v Barnes, 332 Mich App 494, ___ (2020), where the Court observed that “a long line of unpublished cases” has held that prophylactic treatment for pregnancy or STIs justifies a score of 10 points under OV 3. The Court cites nine unpublished cases. In some of them, the possibility of pregnancy or STI was not the only injury, but you can infer that the panels were not requiring that the defendant actually have a disease—the prophylactic treatment was enough under OV 3. Maybe prophylactic treatment after a blood spit doesn’t carry the same weight as prophylactic treatment after a sexual assault, but it at least raises an argument in response to Richardson. The defense would counter that argument but saying this reading of Barnes is too broad, and Barnes actually held that 5 points were appropriate in that case because of “points of tenderness” and considering the circumstances of the rape involved. Further, while there are unpublished cases suggesting prophylactic treatment is sufficient, there are several published cases that contradict that, see McDonald, 293 Mich App at 298 (points assessed for the infection, not prophylactic treatment); People v Armstrong, 305 Mich App 230, 235-236 (2014) (points for reddened and tender hymen, not the rape kit), and People v Apgar, 264 Mich App 321, 329 (2004) (points for a homemade tattoo, not the rape kit), overruled on other grounds by People v White, 501 Mich 160 (2017).
Ultimately, this is an unresolved legal question for the court to decide.