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Can you count the offense of Alcohol-Open Container in a Motor Vehicle under PRV 5?

Under PRV 5, misdemeanor convictions or prior juvenile adjudications are only counted “if it is an offense against a person or property, a controlled substance offense, or a weapon offense,” MCL 777.55(2)(a), or if they are misdemeanor convictions and prior misdemeanor juvenile adjudications “for operating or attempting to operate a vehicle . . . while under the influence of or impaired by alcohol, a controlled substance, or a combination of alcohol and a controlled substance.” MCL 777.55(2)(b). Violation of MCL 257.624a (alcohol – open container in a motor vehicle), does not require operation of a vehicle while under the influence of or impaired by alcohol; accordingly, it does not fall under the exception requiring that the offense be an offense against a person, property, a controlled substance offense, or a weapon offense set forth in MCL 777.55(2)(b). Further, possession of an open container in a motor vehicle is not an offense against a person, property, a controlled substance offense, or a weapon offense because the Court has held that previous alcohol-related convictions unrelated to operating while under the influence or impaired are not convictions involving a controlled substance for purposes of scoring PRV 5. People v Endres, 269 Mich App 414, 416-417 (2006). Specifically, prior alcohol-related offenses that do not involve operating while under the influence or impaired cannot be counted under PRV 5 because the definition of controlled substance in the Public Health Code does not include alcohol, and the language of MCL 777.55(2)(b) “clearly indicates that ‘alcohol’ and ‘a controlled substance’ are not to be considered one and the same”; rather, “[e]ach is a distinct category of substances that can be ingested separately or in combination[.]” Endres, 269 Mich App at 419-420. See also People v Stevens, 306 Mich App 620, 626 (2014) (citing Endres and noting that the Court of Appeals “reasoned that the defendant’s alcohol-related misdemeanor convictions could not be counted under PRV 5 as controlled substance offenses”). Accordingly, we do not think you can score that offense as a prior misdemeanor conviction under PRV 5.

Tags: PRV 05

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