DUI Defendant’s Jail Sentence For 3rd DUI Offense Cannot Be “Subject to Review”
On October 4, 2007, in the DUI case People v. Cullen, the Michigan Court of Appeals, in an unpublished opinion, reversed the trial court’s decision to sentence the DUI defendant, who plead guilty to operating a vehicle while under the influence of intoxicating liquor — his third OWI offense (M.C.L. 257.625(9)(c)) — to three years of probation, with 60 days to be served in jail that was “subject to review.”
The prosecution appealed the trial court’s sentencing, arguing that imposing a 60-day jail sentence “subject to review,” meant that the court would consider at a later date whether it would require the defendant to serve the jail
sentence. The prosecution argued that this essentially imposed a suspended sentence in violation of M.C.L. 625(9)(d), and the Michigan Court of Appeals agreed.
According to the court of appeals, Section 625(9)(c) offers two alternate, but mandatory minimum sentences, either of which can be imposed. However, by making the 60 days of jail time “subject to review,” the court ruled that it essentially equaled that of a suspended sentence:
“Black’s Law Dictionary (8th ed) defines ’suspended sentence’ as a sentence that is ‘postponed so that the defendant is not required to serve time unless he or she commits another crime or violates some other courtimposed condition.’ In other words, the defendant is not required to serve the sentence at the time it is imposed. Thus, a suspended sentence is one that is imposed by the court, which the defendant may or may not be required to serve at a later date even though, as a practical matter, the defendant usually is not required to serve the sentence.”
Consequently, the court of appeals found the trial court’s sentencing to be invalid and remanded it back to the trial court for setencing again in accordance to M.C.L. 625(9)(c).
Click here to read the entire opinion.
