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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant, FOR PUBLICATION June 4, 2015

9:00 a.m.

v No. 322808
Washtenaw Circuit Court JOSHUA MATTHEW PACE, LC No. 14-000272-AR

Defendant-Appellee.

Before: W ILDER , P.J., and S ERVITTO and S TEPHENS , JJ.

P ER C URIAM

.

In this interlocutory appeal, the prosecution appeals by leave granted an order entered by the Washtenaw Circuit Court denying plaintiff’s application for leave to appeal a district court order which granted defendant’s m otion for a specific jury inst ruction. We reverse and remand.

The basic facts of this case are not in dispute. On June 5, 2 013, as Michael John Bly, walked across Church Street in Ann Arbor along a pedestrian cro sswalk, defendant made a lefthand turn onto Church Street, str iking Bly with his vehicle in the process. As a result of the collision, Bly suffered head trauma that left him permanently d isabled. Defendant was charged with the misdemeanor offense of committing a moving violation c ausing serious impairment of a body function pursuant to MCL 257.601d(2).

Prior to trial, defendant moved the district court for a jury instruction requiring the prosecution to prove, as an element of the charged offense, tha t defendant was negligent in the operation of his vehicle. The prosecution argued, in contrast, that the applicable jury instruction, M Crim JI 15.19, provides that to prove the charge of committin g a moving violation causing serious impairment of a body function, the prosecution is requi red to prove only (1) that the defendant committed a moving violation; and (2) that the defend ant’s operation of the vehicle caused a serious impairment of a body function to the victim. According to the prosecution, this standard jury instruction accurate ly stated the law and that th ere was no requirement that the prosecution also prove that defendant was negligent in his acti ons. The district court granted defendant’s motion, citing People v Tombs , 472 Mich 446; 697 NW2d 494 (2005) and reasoning that the Legislature did not e xpressly indicate that it sought to dispense with negligence as an
element of the offense.-2- The prosecution subsequently fil ed an application for leave to appeal the district court’s
order in the Washtenaw Circuit C ourt, which denied the applicat ion. We granted the prosecution’s application for leave to appeal the Washtenaw Cir cuit Court’s denial of its application. In addition to the issue of whether negligence is an element of the offense of committing a moving violation causing serious impairment of a b ody function, this Court directed the parties to address two additional issues: “(1) if negligence is not an element of committing a moving violation causing serious impairment of a b ody function, MCL 257.601d(2), then what, if any, mens rea is required for convic tion of this offense; and (2) if no mens rea is required, is the statute constitutional?” People v Pace , unpublished order of the Court of Appeals, entere d October 7, 2014 (Docket No. 322808).

On appeal, the prosecution contends that MCL 257.601d encompas ses a pre-existing negligence component such that the district court’s requirement of proof of negligence as a separate, distinct element was superfluous and contrary to legi slative intent. Alternatively, the prosecution contends that the statute is a constitutional, stri ct liability offense. We conclude that that the Legislature implied ly intended to make MCL 257.601d a strict liability offense.

Matters of statutory constructio n are questions of law, which this Court reviews de novo. People v Williams , 491 Mich 164, 169; 814 NW2d 270 (2012). Determining the elem ents of a crime is also a question of law that we review de novo. People v Holtschlag , 471 Mich 1, 4-5; 684 NW2d 730 (2004).

MCL 257.601d(2) provides:

(2) A person who commits a moving violation that causes serious impairment of a body function to another person is guilty of a misdemeanor puni shable by imprisonment for not more than 93 days or a fine of not more th an $500.00, or
both.

MCL 257.601d(4) states:

As used in this section, “moving violation” means an act or omi ssion prohibited
under this act or a local ordina nce substantially corresponding to this act that involves the operation of a motor vehicle, and for which a fine may be assessed.

Thus, MCL 257.601d(2) clearly requi res the prosecutor to prove (1) the commission of a moving violation; (2) another person suffered a serious impairment of a body function; and (3) a causal link between the bodily injury a nd the moving violation, i.e., factual and proximate causation. The statutory provision is silent with regard to fault or inten t. However, “the failure to include a
fault element in the statute does not end our inquiry. Where t he statute does not include language expressly requiring fault as an element, this Court mu st focus on whether the Legislature nevertheless intende d to require fault as a predica te to guilt.” People v Adams , 262 Mich App 89, 93; 683 NW2d 729 (2004).

In Tombs

, 472 Mich at 452-453, our Supreme Court noted that criminal offe nses that do not require a criminal intent are disfavored. “The Court will infer the presence of the element
unless a statute contains an ex press or implied indication that the legislative body wanted to dispense with it. Moreover, the Court has expressly held that the presumption in favor of a-3- criminal intent or mens rea requirement applies to each ele ment of a statutory crime.” Id . at 454- 455. According to Tombs , if there were no mens rea element in a criminal offense, “the statute could punish otherwise innocent conduct.” Id . at 458.

However, as Justice Cooley early observed in People v Roby , 52 Mich 577, 579; 18 NW 365 (1884):

I agree that as a rule there can be no crime without a criminal intent, but this is not by any means a universal rule. One may be guilty of the high c rime of manslaughter when his only fault is gross negligence, and there are many other cases where mere neglect may be h ighly criminal. Many statutes which are in the nature of police regulations, as this is, impose criminal penal ties irrespective of any intent to violate them, the purpose being to require a degr ee of diligence for the protection of the public whic h shall render violation impos sible.

Our Supreme Court still recognize s that there are circumstance s where the lack of criminal intent does not preclude a criminal prosecution. In Holtschlag , 471 Mich 1, the Supreme Court was called upon to determine the mens rea associa ted with manslaughter when the prosecutor proceeded on a th eory of gross negligence. Citi ng to People v Townsend , 214 Mich 267, 273-274; 183 NW 177 (1921) , and its discussion regard ing the proofs necessary to demonstrate the “unlawful-act” theory of involuntary manslaught er and the “lawful-act” theory,
the Holtschlag court noted that under the “unlawful-act” theory:

[I]f the defendant committed an unlawfulact that resulted in death, it is sufficient to allege the commission of the unlawful act and the resulting death whereas, if the defendant committed a lawful act resulting in death, the pr osecutor must specifically allege the manner in which the defendant’s actions were grossly or culpably negligent. That is, under Townsend, lawful-act manslaughter requires that the defendant acted with a mens rea of culpable negligence ; whereas unlawful-act manslaughter does not require that the defendant a cted with a specific mens rea-all that is required is that the defendant co mmitted the unlawful act. [ Holtschlag , 471 Mich at 17](emphasis in original).

Thus, as observed in Holtschlag , under some circumstances, the fact that a defendant committed
an unlawful act has been found sufficient to form the basis of a criminal charge, even where a specific mens rea is absent.

This Court also noted in People v Janes , 302 Mich App 34, 42; 836 NW2d 883 (2013), that the Legislature can constitutionally enact offenses that i mpose criminal liability without regard to fault and that whether the Legislature intended to en act such an offense is generally a matter of statutory interpreta tion. These offenses, called str ict liability offenses, are ones “in which the prosecution need only prove beyond a reasonable doubt that the defendant committed the prohibited act, regardless of the defendant's intent and re gardless of what the defendant actually knew or did not know.” Janes , 302 Mich App at 41-42 (internal quotation marks omitted). The distinction between a strict-liability crime and a general-intent crime is that, for a general-intent crime, the people must prove that the defendant purposefully or voluntarily performed the wrongful act, wher eas, for a strict-liability cri me, the people merely need to prove-4- that the defendant performed the wrongful act, irrespective of whether he intended to perform it. People v Lardie , 452 Mich 231, 241; 551 NW2d 656, 660-61 (1996), overruled on other grounds by People v Schaefer , 473 Mich 418; 703 NW2d 774 (2005).

Morissette v United States , 342 US 246; 72 S Ct 240, 246; 96 L Ed 288 (1952) discusses the origin of criminal offense charges which disregard any inte nt. Citing to the industrial revolution, increased traffic, congestion of cities, and wide d istribution of goods, the Morissette Court noted that as dangers increased so did duties and regulat ions and that lawmakers sought to make the duties and regulations more effective by imposing crim inal sanctions in some cases.

Id . at 252-255. These “public welfare offenses” do not necessari ly result in a di rect or immediate injury to person or property “but merely create the danger or p robability of it which the law
seeks to minimize.” Morissette , 342 US at 256.

[W]hatever the intent of the vio lator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a n ecessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no m ore exertion than it might reasonably exact from one who assumed his respons ibilities. Also, penalties commonly are relativel y small, and conviction does no t grave damage to an offender's reputation. Under such considerations, courts ha ve turned to construing statutes a nd regulations which make no mention of in tent as dispensing with it and holding that the gui lty act alone makes out the cri me. [Id. at 256.]

The purpose of imposing criminal penalties in this class of reg ulation is “to require a degree of diligence for the protection of the public which shall render v iolation impossible.” Id . at 257. Examples of such strict-liability offenses include narcotics la ws, traffic laws, adulterated food or drug laws, criminal nuisances, and liquor control laws. People v Nasir , 255 Mich App 38, 42; 662 NW2d 29 (2003).

“Courts in this country have almost universally held that traf fic violations are strict liability offenses, in which the motorist’s negligence or lack of intent to commit the infraction is
irrelevant.” People v Jones , 132 Mich App 368, 370; 347 NW2d 235 (1984). For example, the Sixth Circuit Court of Appeals addressed an Ohio statute defi ning involuntary manslaughter as causing death during the commission of a misdemeanor driving of fense, without a separate mens

rea requirement in Stanley v Turner , 6 F3d 399 (CA 6, 1993). The Sixth Circuit noted that:

[w]here a criminal statute pr ohibits and punishes conduct not i nnocent or innocuous in itself, the criminal intent element may be dispens ed with if the criminal statute is designe d for the protection of the public h ealth and safety and if it has no common law background th at included a particular crim inal intent. Because citizens are presumed to know the ordinary traffic safe ty laws and that violating them is dangerous and wrong, Ohio’s involuntary mansl aughter statute, as applied in this case, is based on the obviously wrongful and blameworthy conduct of violating traffic safety laws. [ Id . at 404.]-5- As the Court in Stanley recognized, our Legislature is en titled to enact public welfare statutes, such as those regulating traffic, that dispense with the requir ement of mens rea on the basis that citizens are presumed to know the ordinary traffic safety laws and that violating them is dangerous. Id

.

Based upon the above, it may be inferred from the Legislature’ s use of the term “moving violation,” without any reference to a mens rea requirement, th at it intended to dispense with the criminal intent element and make committing a moving violation causing serious impairment of a body function a strict liability offense. The Legislature is presumed to be aware of and to legislate in harmony with e xisting jurisprudence. People v Cash , 419 Mich 230, 241; 351 NW2d 822 (1984). The requirement that a defendant have committed a moving violation in order to be charged with and convicted of a violation of MCL 257.601d clear ly indicates that public welfare is at issue. “[I]it is the motorist's duty in the use and oper ation of his automobile to exercise ordinary and reasonable care and caution, that is, that degree of care and caution which an ordinarily careful and prudent p erson would exercise under the same or similar circumstances.”
Zarzecki v Hatch , 347 Mich 138, 141; 79 NW2d 605 (1956). The commission of a m oving violation indicates that the motorist failed to do so, regardle ss of intent, and, as previously indicated, the violation of a t raffic law is typically a strict -liability offense. Nasir , 255 Mich App at 42. Thus, MCL 257.601d is strict liability offense. 1

1 This conclusion is also supported by the legislative history. We recognize that Legislative bill analyses “are ‘generally unpersuasive tool[s] of statutory cons truction’ ” and “do not necessarily represent the views of any individual legislator.” Kinder Morgan Mich, LLC v Jackson , 277 Mich App 159, 170; 744 NW2d 184 (2007) (citation omitted). How ever, they “do have probative value in certain, limited circumstances.” Id

. MCL 257.601d was added to the Motor Vehicle Code by 2008 PA 46 3, effective October 31, 2010. At the same time that MCL 257.601d was added, the of fenses of Felonious Driving, MCL 750.325, and Negligent Homicide, MCL 257.626c, were repeale d. The Legislative bill analyses, attached to the prosecution’s brief, suggest that the changes were made in response to concerns by legislators that

[t]he current standard for deter mining whether a person is guil ty of negligent homicide or felonious driving i s ambiguous, based on whether th e person operated the vehicle in a careless, reckless or negligent manne r. The language prescribing those offenses is antiquated and based on common la w notions of negligence. Applying those concepts to criminal law creates so me uncertainty
about what constitutes a viola tion, leading to inconsistent enf orcement of the law. For example, a driver who loses control of a car on an icy over pass and is
involved in a fatal accident coul d have foreseen the possibilit y that the bridge might be icy, and therefore could be charged with negligent homicide, although most people would not consider that to be appropriate in such a case. The bill would remove that ambiguity, and instead enact prohibitions und er which a person would not be guilty of a criminal offense unless a movin g violation had
occurred. This would reduce inco nsistencies in the application of the law and-6- Because the Legislature impliedly intended to make MCL 257.601 d a strict liability offense, the prosecution is required to prove solely (1) the co mmission of a moving violation; (2) another person suffered a serious impairment of a body function ; and (3) a causal link between the bodily injury and the moving violation, i.e., factual and p roximate causation. The prosecution is not required to a lso prove that defendant operat ed his vehicle in a negligent manner, and the trial court erred in so concluding.

After reaching the conclusion that the prosecution is not requ ired to prove negligence, we
next consider whether MCL 257.601d is constitutional. Constitu tional questions are generally reviewed de novo by this Court. People v Conat , 238 Mich App 134, 144; 605 NW2d 49 (1999).

“[T]he United States Supreme Court has recognized as a general matter that the constitution does not preclude the enactment of even strict lia bility criminal statutes.” People v Quinn , 440 Mich 178, 185; 487 NW2d 194 (1992), citing Lambert v California , 355 US 225; 78 S Ct 240; 2 L Ed 2d 228 (1957). See also Janes , 302 Mich App at 42, citing Quinn , 440 Mich at 188 (“Our Supreme Court has recognized that the Legislature can constitutionally enact offenses that impose criminal liability without regard to fault.”). Thi s is especially the case with public welfare regulations, as previously discussed. There does not a ppear to be a well-settled test for determining when such a strict liability crime offends due proc ess. However, this Court has previously stated that “ ‘[t]he elimination of the element of c riminal intent does not violate the due process clause where (1) the penalty is relatively small, a nd (2) where conviction does not gravely besmirch.’ ” People v Olson , 181 Mich App 348, 352; 448 NW2d 845 (1989), quoting United States v Wulff , 758 F 2d 1121, 1125 (CA 6, 1985). See also Lardie , 452 Mich at 255 (noting that penalties for public welfare offenses are generall y “relatively small” and do no “grave damage to an offender’s reputation”).

There is no question that the Legislature has the constitution al authority to enact MCL 257.601d as a strict liability offense concerning public welfar e. Lambert , 355 US 225; Quinn

, 440 Mich at 188; Janes , 302 Mich App at 42. We are satisfied that imposing strict li ability for the offense of committing a moving violation causing serious im pairment of a body function does not offend due process. First, the offense is a misdemean or; that is, despite the severe harm
that such an offense inflicts upon the victim, it is punishable only by imprisonment for not more than 93 days and/or a fine of not more than $500. The penalty is thus relatively small. See People v Adams , 262 Mich App 89, 98-99; 683 NW2d 729 (2004) (upholding a stri ct liability crime of failing to pay child s upport despite a potential four- year jail term); People v Motor City

clarify proscribed conduct.[Senate Fiscal Analysis, SB 104 (as passed by the senate), August 5, 2008, available at http://www.legislature.mi.gov/documents/ 2007-2008/billanalysis/Senate/htm/2007-SFA-0104-B.htm (accessed March 26, 2015).]

The above analysis supports a con clusion that in enacting MCL 2 57.601 and repealing the Felonious Driving and Negligent Homicide statutes, the Legislat ure sought to erase uncertainty as to what conduct was punishable by removing any consideration of whether a motorist’s conduct was careless, reckless, or negligent, and instead focus ing solely on whether the motorist committed a moving violation.-7- Hosp & Surgical Supply, Inc , 227 Mich App 209, 210; 575 NW2d 95 (1997) (upholding a strict liability crime despite a poten tial punishment of four years’ i mprisonment and a $30,000 fine). Second, because the crime is a misdemeanor only, it is far less likely to “besmirch” the
defendant. Cf Wulff , 758 F 2d at 1125 (“[A] felony co nviction irreparably damages one’s reputation[.]”). Thus, we conclude that it does not offend due process to hold individuals strictly liable for committing moving violations that cause serious impa irment to a body function in
another individual.

In sum, MCL 257.601d imposes strict liability upon a motorist who commits a moving violation causing serious impairment of a body function to anot her person and the statute is constitutional. The prosecution is not required to prove that defendant operated his vehicle in a negligent manner, and the trial court erred in so concluding.

Reversed and remanded for proceedings not inconsistent with th is opinion. We do not retain jurisdiction.

/s/ Kurtis T. Wilder
/s/ Deborah A. Servitto /s/ Cynthia Diane Stephens