Question as originally presented: If the defendant refuses to provide passwords to legally obtained electronic devices confiscated as part of a police investigation and they were later determined to have contained evidence of criminal activity, would this constitute an interference with the administration of justice requiring an assessment of 10 points under OV 19?
Under OV 19, in relevant part, 10 points should be scored if an offender “otherwise interfered with or attempted to interfere with the administration of justice[.]” MCL 777.49(c). “[T]he 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). Further, the Court has recognized that the investigation of crime is critical to the administration of justice. Barbee, 470 Mich at 286-288.
However, the Fifth Amendment provides a right against self-incrimination, and a defendant maintains their Fifth Amendment right against self-incrimination during the period between conviction and sentencing (and through direct appeal), see People v Wright, 431 Mich 282, 295 (1988). The Court has held that a defendant can properly exercise their right to remain silent and not participate in any presentence investigation interview, and therefore, it would not be appropriate to score points under OV 19 on this basis. See also People v Thompson, unpublished per curiam opinion of the Michigan Court of Appeals, issued January 15, 2015 (Docket No. 318694), p 4 (holding the trial court could not score 10 points for OV 19 on the basis of defendant’s refusal to cooperate in the presentence investigation review process because he had a right to remain silent at that time). Note that unpublished opinions are not binding. MCR 7.215(C)(1). In your case, it is likely that the defendant’s refusal to provide passwords to devices was a legitimate exercise of the defendant’s Fifth Amendment right against self-incrimination, and points should not be scored for interference with the administration of justice. Further, even setting aside constitutional rights, OV 19 does not create an obligation for the defendant to assist with an investigation – there is a distinction between active interference and refusal to assist.