PEOPLE v MILLER

Docket No. 149502. Argued April 7, 2015 (Calendar No. 4). Decided July 20, 2015.

Joseph Miller was convicted by a jury in the Leelanau Circuit Court of operating while 

intoxicated (OWI), MCL 257.625(1), and operating while intoxicated causing serious 

impairment of another person’s body function (OWI-injury), MCL 257.625(5), for an accident 

that resulted when he grabbed the steering wheel of the car that his girlfriend was driving. The 

court, Thomas G. Power, J., sentenced defendant to two concurrent terms of five years’ 

probation, with the first nine months to be served in jail. Defendant appealed. The Court of 

Appeals, DONOFRIO, P.J., and SAAD and METER, JJ., in an unpublished opinion per curiam issued 

March 11, 2014 (Docket No. 314375), affirmed defendant’s conviction for OWI-injury but 

vacated defendant’s OWI conviction on the ground that it violated defendant’s constitutional 

protection against double jeopardy. The Court of Appeals denied the prosecution’s motion for 

reconsideration. The Supreme Court granted the prosecution’s application for leave to appeal. 

497 Mich 881 (2014).

In a unanimous opinion by Justice VIVIANO, the Supreme Court held:

The trial court violated the constitutional protection against double jeopardy by 

convicting defendant of both OWI and OWI-injury. When read as a whole, MCL 257.625 

expresses a clear legislative intent not to allow conviction of and punishment for multiple 

offenses arising from the same incident except where explicitly authorized by the statute, and 

MCL 257.625(1) and MCL 257.625(5) do not specifically authorize multiple punishments. 

Accordingly, the Court of Appeals correctly vacated defendant’s conviction, but for the wrong 

reason.

1. The constitutional prohibition against double jeopardy protects against successive 

prosecutions for the same offense and against the imposition of multiple punishments for the 

same offense. The protection against multiple punishments is not violated if the Legislature has 

specifically authorized cumulative punishments under two statutes; however, if the Legislature 

has expressed a clear intention to prohibit multiple punishments, it is a violation of double 

jeopardy to convict a defendant for both offenses in a single trial. If the Legislature’s intent is 

not clear, courts apply the “abstract legal elements” test articulated in People v Ream, 481 Mich 

223 (2008), which focuses on the statutory elements of the offense to determine whether the 

Legislature intended for multiple punishments. Under this test, it does not violate double

Michigan Supreme Court

Lansing, Michigan

Syllabus Chief Justice:

Robert P. Young, Jr.

Justices:

Stephen J. Markman

Mary Beth Kelly

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein

This syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader.

Reporter of Decisions:

Corbin R. Davis
jeopardy protections to convict a defendant of multiple offenses if each of the offenses has an 

element that the other does not.

2. The Court of Appeals erred by concluding that the Legislature did not express a clear 

intent with regard to multiple punishments arising under MCL 257.625(1) and (5). Although 

these provisions do not clearly evidence the Legislature’s intent when read in isolation, reading

MCL 257.625 as a whole indicates that the Legislature specifically authorized multiple 

punishments for an individual who violates MCL 257.625(7) by driving with a minor while 

intoxicated and, by that same conduct, also commits OWI-injury under MCL 257.625(5) or OWI 

causing death under MCL 257.625(4). The fact that there is no similar provision expressly 

authorizing multiple punishments for violating MCL 257.625(1) and MCL 257.625(5) indicates

that the Legislature did not intend to permit a defendant to be convicted of both offenses for the 

same criminal conduct. Accordingly, the trial court violated double jeopardy by convicting 

defendant of both OWI and OWI-injury.

Court of Appeals judgment affirmed on different grounds; case remanded to the trial 

court for resentencing.

©2015 State of Michigan
FILED July 20, 2015

S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 149502

JOSEPH MILLER,

Defendant-Appellee.

BEFORE THE ENTIRE BENCH

VIVIANO, J.

At issue before us is whether defendant’s convictions of operating while 

intoxicated (OWI)1 and operating while intoxicated causing serious impairment of the 

body function of another person (OWI-injury)2 arising from a single intoxicated driving 

incident violated the double jeopardy clauses of the United States and Michigan 

 1 MCL 257.625(1).

2 MCL 257.625(5).

Michigan Supreme Court

Lansing, Michigan

OPINION Chief Justice:

Robert P. Young, Jr.

Justices:

Stephen J. Markman

Mary Beth Kelly

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein
2

Constitutions.

3

 Although we agree with the Court of Appeals’ conclusion that convicting 

defendant of both offenses violated his double jeopardy protections, we disagree with the 

reasoning employed by the Court of Appeals. In particular, the Court of Appeals erred 

by not recognizing the clear legislative intent reflected in the plain language of the statute

precluding multiple punishments for OWI and OWI-injury. Accordingly, for the reasons 

stated below, we affirm the Court of Appeals’ decision to vacate defendant’s OWI 

conviction under MCL 257.625(1) on alternate grounds and remand to the trial court for 

resentencing. 

I. FACTUAL AND PROCEDURAL BACKGROUND

In June 2012, while returning from a concert at which they had both been drinking

alcohol, defendant and his girlfriend got into an argument. Defendant grabbed the wheel 

from his girlfriend, who was driving, causing the car to go off the road and strike a tree. 

Defendant’s girlfriend suffered a broken collar bone and a concussion as a result of the 

accident. Defendant had a blood alcohol level of 0.17 grams per 100 milliliters.

Defendant was charged with OWI and OWI-injury. A jury convicted defendant as

charged. The trial court sentenced defendant to two concurrent terms of five years’ 

probation, with the first nine months to be served in the county jail.

Defendant appealed to the Court of Appeals, arguing that the trial court violated 

the multiple punishments strand of the double jeopardy clauses by convicting him of both 

OWI and OWI-injury. The Court of Appeals agreed, vacated defendant’s OWI 

 3 US Const, Am V; Const 1963, art 1, § 15.
3

conviction under MCL 257.625(1), and remanded the case for resentencing.4 The 

prosecution moved for reconsideration, arguing that the Court of Appeals’ analysis was 

contrary to People v Ream,

5 but the Court of Appeals denied the motion in a summary 

order.

The prosecution sought leave to appeal in this Court. We granted leave to 

consider whether defendant’s convictions for both OWI and OWI-injury arising from the 

same incident constitutes a violation of the multiple punishments strand of double 

jeopardy under the United States and Michigan Constitutions.

6

II. STANDARD OF REVIEW

This case presents questions of law regarding statutory interpretation and the 

application of our state and federal Constitutions, which we review de novo.7

III. MULTIPLE PUNISHMENTS STRAND OF DOUBLE JEOPARDY

The Double Jeopardy Clause of the Fifth Amendment of the United States 

Constitution provides that no person shall “be subject for the same offence to be twice 

put in jeopardy of life or limb . . . .”8

 The Michigan Constitution similarly provides that 

 4 People v Miller, unpublished opinion per curiam of the Court of Appeals, issued 

March 11, 2014 (Docket No. 314375).

5 People v Ream, 481 Mich 223; 750 NW2d 536 (2008).

6 People v Miller, 497 Mich 881 (2014).

7 People v Gardner, 482 Mich 41, 46; 753 NW2d 78 (2008); People v Nutt, 469 Mich 

565, 573; 677 NW2d 1 (2004).

8 US Const, Am V.
4

“[n]o person shall be subject for the same offense to be twice put in jeopardy.”9 The 

prohibition against double jeopardy protects individuals in three ways: “(1) it protects 

against a second prosecution for the same offense after acquittal; (2) it protects against a 

second prosecution for the same offense after conviction; and (3) it protects against 

multiple punishments for the same offense.”10 The first two protections comprise the 

“successive prosecutions” strand of double jeopardy, while the third protection is known 

as the “multiple punishments” strand.11 Because defendant was convicted of and 

sentenced for both OWI and OWI-injury arising from the same conduct at the same trial, 

this case involves the multiple punishments strand of double jeopardy.

The multiple punishments strand of double jeopardy “is designed to ensure that 

courts confine their sentences to the limits established by the Legislature” and therefore 

acts as a “restraint on the prosecutor and the Courts.”12 The multiple punishments strand 

is not violated “[w]here ‘a legislature specifically authorizes cumulative punishment 

 9 Const 1963, art 1, § 15. Although we are not bound to interpret the Michigan 

Constitution consistently with similar provisions of the United States Constitution, “we 

have been persuaded in the past that interpretations of the Double Jeopardy Clause of the 

Fifth Amendment have accurately conveyed the meaning of Const 1963, art 1, § 15 . . . .” 

People v Smith, 478 Mich 292, 302 n 7; 733 NW2d 351 (2007).

10 Nutt, 469 Mich at 574.

11 Smith, 478 Mich at 299.

12 People v Mitchell, 456 Mich 693, 695; 575 NW2d 283 (1998); see also Brown v Ohio, 

432 US 161, 165; 97 S Ct 2221; 53 L Ed 2d 187 (1977) (“Where consecutive sentences 

are imposed at a single criminal trial, the role of the constitutional [double jeopardy] 

guarantee is limited to assuring that the court does not exceed its legislative authorization 

by imposing multiple punishments for the same offense.”).
5

under two statutes . . . .’ ”13 Conversely, where the Legislature expresses a clear intention

in the plain language of a statute to prohibit multiple punishments, it will be a violation of 

the multiple punishments strand for a trial court to cumulatively punish a defendant for 

both offenses in a single trial.14 “Thus, the question of what punishments are 

constitutionally permissible is not different from the question of what punishments the 

Legislative Branch intended to be imposed.”15

The Legislature, however, does not always clearly indicate its intent with regard to 

the permissibility of multiple punishments. When legislative intent is not clear, Michigan 

courts apply the “abstract legal elements” test articulated in Ream to ascertain whether 

the Legislature intended to classify two offenses as the “same offense” for double 

jeopardy purposes. This test focuses on the statutory elements of the offense to 

 13 Mitchell, 456 Mich at 695, quoting Missouri v Hunter, 459 US 359, 368-369; 103 S Ct 

673; 74 L Ed 2d 535 (1983).

14 See Garrett v United States, 471 US 773, 779; 105 S Ct 2407; 85 L Ed 2d 764 (1985) 

(explaining “that the Blockburger rule is not controlling when the legislative intent is 

clear from the face of the statute or the legislative history”); Hunter, 459 US at 366 

(“With respect to cumulative sentences imposed in a single trial, the Double Jeopardy 

Clause does no more than prevent the sentencing court from prescribing greater 

punishment than the legislature intended.”); Smith, 478 Mich at 316 (“In interpreting 

‘same offense’ in the context of multiple punishments, federal courts first look to 

determine whether the legislature expressed a clear intention that multiple punishments 

be imposed.”); Mitchell, 456 Mich at 695-696 (“Where the issue is one of multiple 

punishment rather than successive trials, the double jeopardy analysis is whether there is 

a clear indication of legislative intent to impose multiple punishment for the same 

offense.”).

15 Albernaz v United States, 450 US 333, 344; 101 S Ct 1137; 67 L Ed 2d 275 (1981).
6

determine whether the Legislature intended for multiple punishments.16 Under the 

abstract legal elements test, it is not a violation of double jeopardy to convict a defendant 

of multiple offenses if “each of the offenses for which defendant was convicted has an 

element that the other does not . . . .”17 This means that, under the Ream test, two 

offenses will only be considered the “same offense” where it is impossible to commit the 

greater offense without also committing the lesser offense.18

In sum, when considering whether two offenses are the “same offense” in the 

context of the multiple punishments strand of double jeopardy, we must first determine 

whether the statutory language evinces a legislative intent with regard to the 

permissibility of multiple punishments. If the legislative intent is clear, courts are 

required to abide by this intent.19 If, however, the legislative intent is not clear, courts

must then apply the abstract legal elements test articulated in Ream to discern legislative 

intent.

 16 Ream, 481 Mich at 238 (explaining that “[b]ecause the statutory elements, not the 

particular facts of the case, are indicative of legislative intent, the focus must be on these 

statutory elements”). 

17 Id. at 225-226.

18 Id. at 241.

19 See Mitchell, 456 Mich at 695-696 (explaining that where the legislative intent is clear, 

“ ‘a court’s task of statutory construction is at an end’ ”), quoting Hunter, 459 US at 368.
7

IV. ANALYSIS AND APPLICATION

Subsections (1) through (8) of MCL 257.625 establish different categories of 

operating while intoxicated offenses. In this case, we must determine whether double 

jeopardy precludes defendant’s convictions of OWI under MCL 257.625(1) and OWIinjury under MCL 257.625(5) arising from a single intoxicated driving incident.

MCL 257.625(1) provides:

A person, whether licensed or not, shall not operate a vehicle upon a 

highway or other place open to the general public or generally accessible to 

motor vehicles, including an area designated for the parking of vehicles, 

within this state if the person is operating while intoxicated. As used in this 

section, “operating while intoxicated” means any of the following:

(a) The person is under the influence of alcoholic liquor, a controlled 

substance, or other intoxicating substance or a combination of alcoholic 

liquor, a controlled substance, or other intoxicating substance.

(b) The person has an alcohol content of 0.08 grams or more per 100 

milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or, 

beginning October 1, 2018, the person has an alcohol content of 0.10 grams 

or more per 100 milliliters of blood, per 210 liters of breath, or per 67 

milliliters of urine.

(c) The person has an alcohol content of 0.17 grams or more per 100 

milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

MCL 257.625(5) provides:

A person, whether licensed or not, who operates a motor vehicle in 

violation of subsection (1), (3), or (8) and by the operation of that motor 

vehicle causes a serious impairment of a body function of another person is 

guilty of a crime as follows:

(a) Except as provided in subdivision (b), the person is guilty of a

felony punishable by imprisonment for not more than 5 years or a fine of 

not less than $1,000.00 or more than $5,000.00, or both. The judgment of 

sentence may impose the sanction permitted under section 625n. If the 

vehicle is not ordered forfeited under section 625n, the court shall order 

vehicle immobilization under section 904d in the judgment of sentence.
8

(b) If the violation occurs while the person has an alcohol content of 

0.17 grams or more per 100 milliliters of blood, per 210 liters of breath, or 

per 67 milliliters of urine, and within 7 years of a prior conviction, the 

person is guilty of a felony punishable by imprisonment for not more than 

10 years or a fine of not less than $1,000.00 or more than $5,000.00, or 

both. The judgment of sentence may impose the sanction permitted under 

section 625n. If the vehicle is not ordered forfeited under section 625n, the 

court shall order vehicle immobilization under section 904d in the judgment 

of sentence.

As stated above, to determine whether defendant’s convictions of both OWI and 

OWI-injury violated his double jeopardy rights, we must first determine whether the 

Legislature expressed a clear intent regarding the permissibility of multiple operating 

while intoxicated convictions arising from the same incident.

The Court of Appeals concluded, based on an examination of the plain language of 

MCL 257.625, that the Legislature did not “evince a clear expression of any intent to 

allow multiple punishments for the same offense.”20 In doing so, the Court focused on 

MCL 257.625(25) and (27). MCL 257.625(25)(b) defines “prior convictions” and 

includes as part of that definition a violation of “[t]his section” or a “substantially 

corresponding” local ordinance, federal law, or law of another state. MCL 257.625(27) 

provides that “[i]f 2 or more convictions described in subsection (25) are convictions for 

violations arising out of the same transaction, only 1 conviction shall be used to 

determine whether the person has a prior conviction.” The Court of Appeals concluded 

that the Legislature did not clearly state its intent with regard to multiple punishments 

under these subsections because subsection (25) includes “as part of its definition of 

 20 Miller, unpub op at 4.
9

‘prior conviction’ a conviction from a foreign jurisdiction of a law that ‘substantially 

correspond[s] to a law of this state,” which may allow multiple punishments for a single 

transaction and thus subsection (27) merely “limit[s] how those multiple convictions are 

to be handled with respect to calculating a defendant’s number of ‘prior convictions.’ ”21

We agree with the Court of Appeals that MCL 257.625(25) and (27) do not

indicate a clear legislative intent with regard to the permissibility of multiple 

punishments. While MCL 257.625(27) considers the possibility that a defendant could 

be convicted of multiple offenses arising out of the same transaction, it is not clear 

whether the Legislature contemplated these multiple offenses as arising solely under 

Michigan law, the laws of another jurisdiction that “substantially correspond[] to a law of 

this state,” or a combination thereof.

Despite the Court of Appeals’ proper analysis of these subsections, our review of 

MCL 257.625 as a whole leads us to conclude that the Legislature did express a clear 

intent with regard to multiple punishments arising under MCL 257.625(1) and (5). As 

with any statutory interpretation, we must give effect to the Legislature’s intent by 

focusing first on the statute’s plain language.22 When statutory language is clear and 

unambiguous, we assume that the Legislature intended its plain meaning and we enforce 

the statute as written.23 Here, MCL 257.625(1) and (5) are silent on the issue of multiple 

 21 Id. 

22 Madugula v Taub, 496 Mich 685, 696; 853 NW2d 75 (2014).

23 Id.
10

punishments and thus do not, when read in isolation, clearly evidence the Legislature’s 

intent on whether multiple punishments are allowed. 

However, we do not quarantine the text when interpreting statutes. Instead, we 

must examine the statutory language as a whole to determine the Legislature’s intent.24 

In this respect, we find it significant that the Legislature specifically authorized multiple 

punishments for some operating while intoxicated offenses in another subsection of the 

statute.25 MCL 257.625(7) creates a separate operating while intoxicated offense for 

individuals who drive while intoxicated with a minor in the car (OWI-minor).

26

Subsection (7)(d) provides in relevant part:

This subsection does not prohibit a person from being charged with, 

convicted of, or punished for a violation of subsection (4) or (5) that is 

committed by the person while violating this subsection. However, points 

shall not be assessed under section 320a for both a violation of subsection 

(4) or (5) and a violation of this subsection for conduct arising out of the 

same transaction.[27]

Thus, under MCL 257.625(7)(d), the Legislature specifically authorized multiple 

convictions and punishments for a person who commits OWI-minor and by that same 

 24 Id. at 698.

25 Although this argument was not made in the parties’ briefs filed in this Court or the 

Court of Appeals, it was raised by defense counsel during oral arguments in this Court.

26 MCL 257.625(7) proscribes “operat[ing] a vehicle in violation of subsection (1), (3), 

(4), (5), or (8) while another person who is less than 16 years of age is occupying the 

vehicle.”

27 Emphasis added.
11

conduct also commits OWI-injury or causes “the death of another person” under 

MCL 257.625(4) (OWI-death).

The specific authorization for multiple punishments contained in 

MCL 257.625(7)(d) leads us to conclude that the Legislature did not intend to permit 

multiple punishments for OWI and OWI-injury offenses arising from the same incident. 

While subsection (7) expressly authorizes multiple punishments for certain operating 

while intoxicated offenses, this authorization is limited to the circumstances described in 

MCL 257.625(7)(d). And interpreting this subsection in the context of the statute as a 

whole leads us to conclude that the Legislature intended to exclude all other multiple 

punishments under MCL 257.625.

28 This implication is particularly probative of 

legislative intent in this case because the express authorization of multiple punishments in 

subsection (7)(d) involves one of the subsections under examination in this case, 

MCL 257.625(5). The fact that the Legislature expressly authorized multiple 

punishments for subsection (5) and a subsection other than subsection (1) demonstrates 

that the Legislature did not intend to permit multiple punishments for violations of 

subsections (1) and (5).29 In other words, if the Legislature had intended to allow 

 28 Johnson v Recca, 492 Mich 169, 177; 821 NW2d 520 (2012) (“ ‘We interpret th[e]

words in [the statute in] light of their ordinary meaning and their context within the 

statute and read them harmoniously to give effect to the statute as a whole.’ ”), quoting 

People v Peltola, 489 Mich 174, 181; 803 NW2d 140 (2011).

29 See, e.g., Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993)

(“Courts cannot assume that the Legislature inadvertently omitted from one statute the 

language that it placed in another statute, and then, on the basis of that assumption, apply 

what is not there.”).
12

multiple punishments for subsections (1) and (5), it clearly knew how to do so, as 

evidenced by the specific authorization in MCL 257.625(7)(d).30 But neither 

MCL 257.625(1) nor (5) contains similar language specifically authorizing the conviction 

of and punishment for multiple offenses. Thus, in light of MCL 257.625(7)(d), the 

omission of a similar clause providing explicit authority to convict a defendant of 

multiple operating while intoxicated offenses arising out of the same incident in either 

MCL 257.625(1) or (5) is a clear indication that the Legislature did not intend for 

defendants to be convicted of and punished for OWI and OWI-injury arising out of the 

same incident.

Further, to reach the opposite conclusion would violate our well-recognized rule 

that we “must give effect to every word, phrase, and clause and avoid an interpretation 

that would render any part of the statute surplusage or nugatory.”31 That is, had the 

Legislature generally intended to allow multiple punishments for every category of 

operating while intoxicated offense arising from the same conduct, there would be no 

need for the Legislature to specifically authorize multiple punishments for OWI-minor 

and OWI-death or OWI-injury. To interpret MCL 257.625 as permitting multiple 

punishments for other operating while intoxicated offenses would improperly render the 

specific authorization under MCL 257.625(7)(d) surplusage.

 30 See People v Houston, 473 Mich 399, 410; 702 NW2d 530 (2005).

31 State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 

(2002).
13

Therefore, the Court of Appeals erred by concluding that the Legislature did not 

“evince a clear expression of any intent to allow . . . multiple punishments for the same 

offense.”32 In light of the express statutory language permitting multiple punishments in 

MCL 257.625(7)(d), the fact that MCL 257.625(1) and (5) do not contain any express 

authorization for multiple punishments indicates that the Legislature did not intend to 

permit a defendant to be convicted of both of these offenses for the same criminal 

conduct.

33 Accordingly, we hold that the trial court violated the double jeopardy 

prohibition by convicting defendant of both OWI under MCL 257.625(1) and OWI-injury 

under MCL 257.625(5).34

V. CONCLUSION

We conclude that defendant’s convictions of both OWI and OWI-injury for the 

same intoxicated driving incident violates the multiple punishments prong of the double 

 32 Miller, unpub op at 4. 

33 Because the Legislature evinced a clear intent with regard to the permissibility of 

multiple punishments based on the plain language of the statute, the Court of Appeals did 

not need to employ Ream’s abstract legal elements test. However, even assuming that 

resort to Ream was necessary, the Court of Appeals did not apply Ream correctly because 

it compared the elements of each offense as charged rather than focusing on the abstract 

statutory elements of the two offenses, as required by Ream.

34 While plaintiff argues that there is no double jeopardy violation because defendant was 

sentenced to concurrent, rather than consecutive, sentences and thus does not face 

multiple sentences, we find this argument unpersuasive. A concurrent sentence does not 

eliminate the potential collateral consequences of two convictions for the same offense. 

See Ball v United States, 470 US 856, 864-865; 105 S Ct 1668; 84 L Ed 2d 740 (1985) 

(including as examples of the collateral consequences of a second conviction as 

potentially “delay[ing] the defendant’s eligibility for parole or result[ing] in an increased 

sentence under a recidivist statute for a future offense”).
14

jeopardy clauses. Based on the plain language of MCL 257.625, the Legislature 

expressed a clear intent not to allow conviction of and punishment for multiple offenses 

arising from the same conduct, except where explicitly authorized by the statute. 

Therefore, the Court of Appeals reached the right result when it vacated defendant’s OWI 

conviction.35 However, the Court of Appeals did so for the wrong reasons. Accordingly,

we affirm the Court of Appeals’ decision to vacate defendant’s OWI conviction under 

MCL 257.625(1) on alternate grounds and remand to the trial court for resentencing.

David F. Viviano

Robert P. Young, Jr.

Stephen J. Markman

Mary Beth Kelly

Brian K. Zahra

Bridget M. McCormack

Richard H. Bernstein

 35 People v Herron, 464 Mich 593, 609; 628 NW2d 528 (2001) (explaining that “it is an 

appropriate remedy in a multiple punishment double jeopardy violation to affirm the 

conviction of the higher charge and to vacate the lower conviction”).