PEOPLE v. ROGERS

MALLETT, J.

INTRODUCTION

We granted leave to determine whether it is lawful to charge one who is operating a snowmobile while intoxicated with a violation of the Michigan Vehicle Code. The district court dismissed the OUIL charge, and the circuit court affirmed. The Court of Appeals reversed in an unpublished opinion per curiam, holding that a person who is intoxicated or has an impermissible blood-alcohol content while operating a snowmobile upon a highway or other place open to the general public may be prosecuted as an OUIL offender pursuant to MCL 257.625; MSA 9.2325. We would affirm the decision of the Court of Appeals.

FACTS

On February 25, 1988, two state police troopers observed a snowmobile traveling on southbound US 23. The troopers stopped the snowmobile because the operator was driving on the shoulder of the highway.

As the driver got off the snowmobile, the trooper smelled intoxicants and noticed that the driver had trouble gaining his balance. When the driver failed several sobriety tests, he was arrested and taken to the state police post in Cheboygan. His blood-alcohol level was 0.23 percent.

The defendant was charged with operating a vehicle under the influence of intoxicating liquor, second offense (OUIL). MCL 257.625(5); MSA 9.2325(5). A bench trial was held June 3, 1988 in 89th District Court. On July 6, 1988, the judge dismissed the charges because there is a specific statute prohibiting the operation of a snowmobile while under the influence of intoxicating liquor, MCL 257.1515; MSA 9.3200(15). The circuit court affirmed. The Court of Appeals granted the prosecutor's application for leave to appeal and reversed. This Court granted leave to appeal on October 24, 1990. 436 Mich. 880.

I

Under MCL 257.79; MSA 9.1879, "`[v]ehicle' means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices exclusively moved by human power or used exclusively upon stationary rails or tracks and excepting a mobile home...."

The OUIL statute in question proscribes operating a vehicle on a highway, or other places open to the public while intoxicated. MCL 257.625; MSA 9.2325. A snowmobile is a vehicle generally prohibited from operating on a highway, except, under limited circumstances. Montgomery v Dep't of Natural Resources, 172 Mich.App. 718, 722, n 1; 432 N.W.2d 414 (1988).1 Accordingly, we find that defendant's snowmobile is a vehicle to which the terms of the OUIL statute literally apply.

II

Having determined that the OUIL statute is facially applicable in the instant matter, we now turn to consider the question whether persons operating a snowmobile on a public highway while intoxicated, can be properly charged with a violation of the Vehicle Code.

Defendant was charged with OUIL pursuant to the terms of the Michigan Vehicle Code. The code provides:

However, defendant maintains that he should have been charged under a different portion of the Michigan Vehicle Code which proscribes operating a snowmobile upon a highway while intoxicated. The snowmobile act provides:

Defendant further maintains that the snowmobile statute has a regulatory scheme separate and distinct from the general Motor Vehicle Code. As such, the more specific snowmobile act, rather than the general Motor Vehicle Code, proscribes operation of a snowmobile on a public highway while intoxicated.

The Court of Appeals held that a person who operates a snowmobile upon a highway while intoxicated may be prosecuted under the OUIL statute.2 The Court disagreed with defendant and stated that the OUIL statute could not be characterized as more general than the snowmobile act.

We agree with the Court of Appeals. We are unable to say that the OUIL statute is more general than the snowmobile act; nor is the snowmobile act separate and distinct from the general Motor Vehicle Code.

The OUIL provision of the Vehicle Code proscribes operation of any vehicle upon a highway while intoxicated. MCL 257.625(5); MSA 9.2325(5). In addition, because snowmobiles, albeit under limited circumstances, may be operated on highways, Montgomery, supra,3 it can be said that the snowmobile act proscribes operating a snowmobile on a highway while intoxicated.

The Vehicle Code and the snowmobile act overlap in that each shares a common application to snowmobiles when operated on highways. Therefore, the Motor Vehicle Code and the snowmobile act are statutes that can be read in "pari materia."4

Further, we have held that when there are two applicable statutes, as in this case, "the prosecutor is the chief law enforcement officer ... and has the right to exercise broad discretion in determining under which of two applicable statutes a prosecution will be instituted."6

Therefore, in the instant matter, when defendant drove his snowmobile on the highway while intoxicated, his conduct was within the ambit of both MCL 257.625; MSA 9.2325 and MCL 257.1515(1)(b); MSA 9.3200(15)(1)(b). Accordingly, the prosecutor has broad discretion to determine under which of the two applicable statutes to prosecute.

The question whether a person who is intoxicated while operating a snowmobile on a highway may be prosecuted as an OUIL offender is one of first impression under Michigan jurisprudence. Consequently, we may look to other jurisdictions for guidance.

In Melby v Comm'r of Public Safety, 367 N.W.2d 527 (Minn, 1985), the defendant was apprehended by the police after operating his snowmobile with a blood-alcohol concentration level above 0.10 percent.7 The Commissioner of Public Safety revoked the defendant's driving privileges under the implied consent law. The Dakota County Court rescinded the revocation.8 The Minnesota Supreme Court reversed the county court's decision and reinstated the commissioner's revocation of the defendant's driving privileges. The court held that Minnesota's implied consent statute9 applied to snowmobiles operated on a street or highway. Id. at 529.

In Pahl v Comm'r of Public Safety, 398 N.W.2d 67 (Minn App, 1986), the respondent's driving privileges were revoked for an implied consent violation following a snowmobile accident on a lake. The Minnesota Court of Appeals held that the implied consent laws applied only to snowmobiles operated on streets and highways, and not to snowmobiles operated on lake surfaces. Id. at 72.10

These Minnesota court decisions explicitly provide that implied consent laws are applicable to persons who operate snowmobiles upon a highway while under the influence of intoxicants. In the instant case, however, defendant maintains that the OUIL statute is inapplicable since the snowmobile act prohibits the conduct, and therefore is controlling. To support this contention, defendant looks to State v Gobeli, 342 N.W.2d 898 (Iowa, 1983), and urges this Court to adopt its logic.11

We find Gobeli distinguishable from the instant matter. Unlike this case, Gobeli concerned whether the defendant could be convicted of driving with a suspended license for operating a snowmobile along the shoulder of a city street and crossing a highway while his driver's license was already suspended. The defendant in Gobeli was charged with operating a snowmobile without a license where the snowmobile statute did not require a driver's license for its operation. That is not this case. Here, defendant's license to operate a motor vehicle has no bearing on his ability to operate a snowmobile on a public highway while intoxicated.

In the instant matter, defendant makes much of the fact that operating a snowmobile requires no license from the Secretary of State. He asserts that since no license is required, it would be "anomalous" to apply the provisions of the Michigan Vehicle Code to this case. We find this argument unpersuasive. Under the Michigan Vehicle Code, one need not be licensed.

Similarly, the Attorney General concluded in May, 1985, that a go-cart operated on a highway was a motor vehicle, and that the Secretary of State was required to post on the driving record a conviction for operating a go-cart on a public highway in violation of the Vehicle Code.12 Thus, one's driving record would be affected by an offense committed while operating a motor vehicle for which no operator's license is required. A go-cart and a snowmobile are both motor vehicles for which no operator's license is required under the Vehicle Code. Therefore, to say that one's driving record would be affected when operating a go-cart on a public highway, but not when operating a snowmobile is incongruous.

A license from the Secretary of State is not required to operate all types of motor vehicles. But this does not make a motor vehicle any less a motor vehicle.13 Removal of a snowmobile from the operation of Vehicle Code sections requiring licensing does not mean it is removed from all other applicable sections. We find that the OUIL statute and its penalties are applicable to the defendant in this case. Accordingly, we would affirm the decision of the Court of Appeals.

CONCLUSION

Our decision recognizes that the general provisions of the Vehicle Code contemplate all vehicles — including those for which no license is required — operated upon a highway. Further, the specific and narrowly tailored terms of the OUIL provision apply to persons who operate snowmobiles on public highways, while under the influence of intoxicants. Thus, the OUIL provision is applicable to defendant in this case. We therefore would affirm the decision of the Court of Appeals.

BOYLE, J., concurred with MALLETT, J.

BRICKLEY, J. (concurring).

I

As indicated by my colleague, Justice MALLETT, the novel question presented to us is whether a person who is operating a snowmobile on a public highway1 while intoxicated can be charged and prosecuted under the Michigan Motor Vehicle Code's OUIL provisions. MCL 257.625; MSA 9.2325. The district court dismissed the OUIL charge against the defendant, and the circuit court affirmed. However, the Court of Appeals reversed, finding that an intoxicated person driving a snowmobile on a highway can properly be charged with OUIL. Unpublished opinion per curiam of the Court of Appeals, decided December 20, 1989 (Docket No. 112578). While I agree with the majority's affirmance of the Court of Appeals, I write separately to further explain my reasoning.

II

In addition to the facts stated by the lead opinion, the analysis by the Court of Appeals is also helpful to the resolution here. The Court of Appeals found that the applicable snowmobile statute was general in nature and that the OUIL statute was specific because it applied only to vehicles operating on the highway. The Court of Appeals then stated that the snowmobile statute and the OUIL statute shared a common application to snowmobiles on a highway, and therefore, should be read in pari materia. The Court of Appeals believed that, although read in pari materia, the two statutes had different purposes. The snowmobile statutes were concerned with the safe operation of snowmobiles, while the OUIL statute and the Motor Vehicle Code were concerned with highway safety against intoxicated individuals. The Court of Appeals felt that no sufficient reason existed to refuse to apply the OUIL statute to intoxicated individuals operating snowmobiles on a highway and concluded by noting that the statutes could overlap in some circumstances and that the prosecutor, in her discretion, could charge a defendant under either statute.

Before reaching the more significant issue in this case, I undertake to determine, as did the lead opinion, whether a snowmobile is even a vehicle to which the Motor Vehicle Code provisions can possibly be applied. In Montgomery v Dep't of Natural Resources, 172 Mich.App. 718, 722; 432 N.W.2d 414 (1988), the Court of Appeals, citing to the Motor Vehicle Code, found that a snowmobile is a vehicle because it is not "propelled by human power." As indicated by the Court of Appeals in this case, a vehicle is defined as "every device in, upon, or by which any person or property is or may be transported or drawn upon a highway...." MCL 257.79; MSA 9.1879.2 A snowmobile fits within this definition because, even under the provisions of the snowmobile act, situations exist when a snowmobile can transport persons on the highway. MCL 257.1512(a)-(h); MSA 9.3200(12)(a)-(h).

The snowmobile act's own definition of a snowmobile further supports this conclusion. Under the snowmobile act, a snowmobile is defined as:

Thus, the snowmobile act itself defines a snowmobile not only as a vehicle, but also as a motor vehicle.

The subsequent language in the definition of a snowmobile,

does not require a contrary result. In other words, this language indicates that a snowmobile does not have to be registered under the provisions of the Motor Vehicle Code, which are MCL 257.1; MSA 9.1801 to MCL 257.923; MSA 9.2623. The statement does not provide that a snowmobile is not subject to any provisions of the Motor Vehicle Code, but only that special registration requirements are applied to snowmobiles instead of the requirements of the Motor Vehicle Code. The very fact that the Legislature found it necessary to exempt snowmobiles from the motor vehicle registration requirements further indicates that a snowmobile is still a vehicle for other portions of the Motor Vehicle Code. Therefore, as noted by the lead opinion, I would also find that a snowmobile is a vehicle to which certain provisions of the Motor Vehicle Code can possibly be applied. I now turn to the more significant issue on appeal — whether an intoxicated person who drives a snowmobile on a highway can be charged under the OUIL statute.

III

A

When reviewing the defendant's arguments, the Court is guided by a number of rules of statutory interpretation. In general, penal statutes must be strictly construed and the intent of the Legislature cannot be considered when the penal statute is clear and unambiguous. People v Goulding, 275 Mich. 353; 266 NW 378 (1936); Gay v Webster, 277 Mich. 255, 259; 269 NW 164 (1936). However, this rule only requires that people are entitled to a fair warning of the conduct that is proscribed by the statute. Woll v Attorney General, 409 Mich. 500, 516; 297 N.W.2d 578 (1980). When interpreting a penal statute, the Court should also consider the evil that is sought to be penalized. People v Goolsby, 284 Mich. 375, 379; 279 NW 867 (1938).

Under the rule of strict construction, the general rules of statutory interpretation also apply. See 3 Sands, Sutherland Statutory Construction (4th ed), § 59.06, p 36. Particularly important here is the rule that the Legislature generally does not cover the same ground in separate statutes. See Bd of Control of the Michigan State Prison v Auditor General, 197 Mich. 377, 382; 163 NW 921 (1917); People v Smith, 423 Mich. 427, 441; 378 N.W.2d 384 (1985) (WILLIAMS, C.J.) (the Legislature may be presumed to know of existing legislation on the same subject). If two statutes do relate to the same purpose and are deemed to be in conflict, the specific statute is considered an exception to the general statute. Mayor of Port Huron v City Treasurer of Port Huron, 328 Mich. 99; 43 N.W.2d 77 (1950); In re Midland Publishing, Inc, 420 Mich. 148, 163-164; 362 N.W.2d 580 (1984). However, two statutes can be read in pari materia when they relate to the same class of persons or things or have a common purpose, County Rd Ass'n v Bd of State Canvassers, 407 Mich. 101, 119; 282 N.W.2d 774 (1979), and they should be read in connection with one another as if they constituted one law even if they were enacted at different times and contain no reference to one another.

B

This case rests on the application of the OUIL statute and the snowmobile statute to the present situation. The portion of the snowmobile act in question, MCL 257.1515; MSA 9.3200(15), states:

On the other hand, the OUIL statute, MCL 257.625(1); MSA 9.2325(1), states:

Under both the OUIL statute and the snowmobile act, an individual can seemingly be charged with operating a snowmobile on a highway while intoxicated. The provisions of the snowmobile act, specifically MCL 257.1515(1)(b); MSA 9.3200(15)(1)(b), provide that a person shall not operate a snowmobile while intoxicated. The OUIL statute, on the other hand, provides for regulations and penalties when any vehicle is driven specifically on the highway. MCL 257.625(1); MSA 9.2325(1).

The defendant and Justice RILEY, in dissent, argue that the OUIL and snowmobile act statutes are conflicting and that the snowmobile act should control because it is more specific. The defendant and the dissent have focused strictly on the types of vehicles involved and have given no guidance with regard to why the statutes cannot, instead, be read in pari materia. However, when reviewing not only the specific provisions of both statutes, but also the timing and purposes of each statute, one can conclude that the two statutes can be read in pari materia and are not conflicting.

While both Justice RILEY and the Court of Appeals argue that one statute or the other is more specific, I would find that each statute is both general and specific. The snowmobile act provision is specific about what vehicle is covered and general about the location of the vehicle when the statute applies. The OUIL statute is specific about the location of the vehicle and general about which vehicle is covered. Any analysis regarding which statute is more specific is inconclusive and the task then returns to whether, under the rules of statutory interpretation, the statutes can be read in pari materia.

When interpreting these two statutes, the Court should assume that the Legislature knew of the existence of the OUIL statute and that it generally would not cover the same ground in the snowmobile act that it had previously covered in the OUIL statute. See Bd of Control, supra at 382. Therefore, by not specifically indicating otherwise, the Legislature must have known that the Motor Vehicle Code provisions, including the OUIL statute, would be applied to a snowmobile, which is a vehicle, when it is operated on a highway.

By focusing more upon the location or area regulated by each statute rather than the vehicles to be regulated, the two acts can be interpreted in pari materia, consistently and harmoniously, People v Harrison, 194 Mich. 363, 369; 160 NW 623 (1916), without finding that the snowmobile act impliedly repealed any portion of the OUIL statute or other Motor Vehicle Code provisions. People v Buckley, 302 Mich. 12, 22; 4 N.W.2d 448 (1942). As indicated by the Court of Appeals, the snowmobile act, MCL 257.1515; MSA 9.3200(15), "regulates snowmobile operation[s] in general terms, without reference to whether the prohibited conduct occurs on or off a public highway." The snowmobile act indicates that a snowmobile may legally be on a highway and indicates additional conduct that a snowmobile driver must follow while on a highway. However, it only generally states that a person shall not drive a snowmobile while intoxicated. In contrast, the OUIL statute specifically prohibits certain conduct when driving any vehicle on a public highway. Therefore, these statutes can be read in pari materia by finding that while the snowmobile statute in question regulates the operation of a snowmobile while intoxicated when it is both on and off the highway, the OUIL statute supplements those regulations when snowmobiles are driven on the highway.

This result is also supported by the purpose of each statute. See Woll, supra. While the snowmobile act is concerned with the regulation and registration of snowmobiles, the preamble to the Motor Vehicle Code indicates the Legislature's specific concern with the "regulation of vehicles operated upon the public highways of this state or any other place open to the general public ... to provide for the regulation and use of streets and highways ... [and] to provide penalties and sanctions for a violation of this act...." (Emphasis added.) See also Jacobson v Carlson, 302 Mich. 448, 452-454; 4 N.W.2d 721 (1942) (indicating that the purpose of the predecessor to the Motor Vehicle Code was to promote traffic safety by preventing the dangerous operation of vehicles on the highway and noting that the regulation of automobiles and other vehicles on public highways is the responsibility of the state).

This Court has interpreted the purpose of the Motor Vehicle Code broadly to cover all motor vehicles without limiting its application to automobiles or other vehicles generally using the roads and highways. Jacobson, supra. While the snowmobile act is only directed at the operation and safety of snowmobiles, the purpose of the Motor Vehicle Code is to protect citizens and vehicles while on the public highways. This purpose of the Motor Vehicle Code, which includes the OUIL statute, further supports a conclusion that the OUIL statute should supplement the provisions of the snowmobile act when a snowmobile is being operated on a highway.

In addition, when reviewing the evil attempted to be penalized by the statutes, Goolsby, supra, the OUIL statute is intended to prevent accidents and hazards on the state's highways caused by the improper conduct of intoxicated drivers. Jacobson, supra. However, the snowmobile act is an attempt to regulate snowmobiles in their general operations and registration. I agree with the Court of Appeals analysis of this point when it stated:

IV

The purposes of both the OUIL statute and the snowmobile act are further promoted by finding that an intoxicated person operating a snowmobile on a highway, either legally or illegally, can be charged with OUIL. As does the lead opinion, I would affirm the decision of the Court of Appeals.

GRIFFIN, J., concurred with BRICKLEY, J.

RILEY, J. (dissenting).

The majority finds that a snowmobile is a "vehicle" under MCL 257.625; MSA 9.2325, which prohibits driving under the influence of liquor or controlled substances, and that the penalty provisions under § 625 apply to the facts of this case. The provision governing driving under the influence of liquor is part of the Motor Vehicle Code, MCL 257.1 et seq.; MSA 9.1801 et seq.

Section 625 of the Motor Vehicle Code states that "[a] person ... who is under the influence of intoxicating liquor or a controlled substance ... shall not operate a vehicle upon a highway...." (Emphasis added.) To fall within this section, a snowmobile has to fit within the definition of a "vehicle." However, the definitional section of the snowmobile act, MCL 257.1501(e); MSA 9.3200(1)(e), states:

The definition of "snowmobile" set out above states that a snowmobile is not a vehicle which has to be registered under the Motor Vehicle Code, MCL 257.1 to 257.923; MSA 9.1801 to 9.2623. Encompassed within the span of legislation set out in § 1(e) of the snowmobile act is § 625 of the Motor Vehicle Code, the provision pertaining to driving while intoxicated. Thus, the definitional section of the snowmobile act raises serious questions concerning the application of § 625 of the Motor Vehicle Code to snowmobile operators.

While § 1(e) casts doubt on the application of the Vehicle Code's driving while intoxicated provision to the operation of snowmobiles, the fact that the Legislature specifically provided penalties for driving under the influence in the snowmobile act is persuasive evidence that § 625 does not apply.

As stated in 2A Sands, Sutherland Statutory Construction (4th ed), § 51.05, p 499:

Both the Motor Vehicle Code and the snowmobile act have provisions which address intoxicated driving. Under the snowmobile act, MCL 257.1515; MSA 9.3200(15) states:

* * *

Section 15(1)(b) of the snowmobile act is more specific than § 625 of the Motor Vehicle Code because § 15(1)(b) is concerned solely with snowmobiles. Moreover, if the majority is correct that a snowmobile is a "vehicle" under § 625, the provisions conflict because § 15(1)(b) does not limit the penalty to any particular area where a snowmobile might drive. By a blanket ban on intoxicated driving regardless of location, § 15(1)(b) would apply to a snowmobile driving upon a highway, or anywhere else.1 Therefore, assuming a snowmobile is a "vehicle" under § 625, the provisions conflict and the more specific provision under the snowmobile act controls.

It is also instructive to look to the purposes of the acts. The preamble to the snowmobile act provides:

In relevant part, the preamble to the Motor Vehicle Code states:

While the Motor Vehicle Code broadly encompasses the regulation of vehicles on public highways, the snowmobile act is limited specifically to the regulation of snowmobiles. Because both proscribe penalties for intoxication, the more specific enactment controls over the more general one.

Furthermore, there are other legislative enactments which indicate that the Legislature intended § 15(1)(b) of the snowmobile act and § 625 of the Vehicle Code to operate exclusively of each other. In § 15 of the criminal procedure act,2 the Legislature states rules regarding warrantless arrests:

The fact that the Legislature contemplated both intoxicated driving provisions in the same statute offers support to the idea that the provisions of the snowmobile act are to operate independent of § 625 of the Motor Vehicle Code.

Section 8511 of the Revised Judicature Act3 states in part:

It is discernible from this provision that the Legislature distinguished § 625 of the Motor Vehicle Code and § 15 of the snowmobile act on the basis of district court jurisdiction. If anything, this provision adds support to the notion that the Legislature intended § 15 to be separate and distinct from § 625.

I would reverse the decision of the Court of Appeals.

CAVANAGH, C.J., and LEVIN, J., concurred with RILEY, J.