People v. Urbanski

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PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. BENJAMIN SCOTT URBANSKI, Defendant-Appellant.

No. 359011

Court of Appeals of Michigan

August 31, 2023

Allegan Circuit Court LC No. 2019-022856-FH

Before: Gleicher, C.J., and Rick and Maldonado, JJ.

Maldonado, J.

Following a traffic stop, police suspected that defendant had been driving drunk, and two hours later, he submitted to blood testing. The testing found that his blood alcohol content (BAC) was .064 grams per 100 milliliters of blood, which is below the unlawful alcohol level of .08 that is strictly prohibited by MCL 257.625(1)(b). Pursuant to MCL 257.625a(6)(a), a driver's BAC is presumed to be the same at the time of the testing as it was at the time the driver operated the vehicle. At trial, there was no evidence presented to rebut this presumption and support an inference that defendant's BAC exceeded 0.08 at the time he drove therefore, it is undisputed that a conviction for operating while intoxicated (OWI) could only be supported by a finding that defendant was "under the influence" of alcohol. MCL 257.625(1)(a). Despite this, the prosecutor urged the jury during closing arguments to find that defendant's BAC exceeded 0.08 at the time he drove, the court instructed the jury that it could convict defendant pursuant to the high BAC or "under the influence" theories, and the court did not instruct the jury to presume that defendant's BAC was the same when he drove as when it was tested. Defendant was found guilty of OWI, MCL 257.625(1),^[1] and it cannot be ascertained from the record whether the jury impermissibly deduced that defendant's BAC exceeded 0.08 when he drove. The trial court sentenced defendant as a second-offense habitual offender, MCL 769.10, to serve 6 days' incarceration (time served). Defendant appeals by right, and because defense counsel failed to object to the prosecutor's improper argument, failed to object to the court's erroneous instructions, and failed to request an instruction regarding the presumption that defendant's BAC was only 0.064 when he was driving, we reverse. We also note that the trial court erred by sentencing defendant as a habitual offender because OWI is a misdemeanor. If defendant is retried and convicted, the court shall not sentence defendant as a habitual offender.

I. FACTS

This case arose from a traffic stop that took place just after midnight on June 24, 2019. A deputy with the county sheriff's department testified that he was in uniform and driving a marked patrol car at approximately 12:30 a.m. when a car passed him traveling at "a high rate of speed" with its "bright headlights" engaged. The officer maintained that he turned around and was "able to briefly pace the suspect vehicle," and determined that it was moving at a little more than twice the posted speed limit of 35 miles per hour. According to the officer, he activated his emergency lights, after which defendant's vehicle initially started to slow down, but then accelerated. The officer then activated his siren, and that shortly afterward the vehicle pulled over. The officer identified defendant as the vehicle's sole occupant.

The officer further testified that defendant said "something to the effect of just being a little bit stupid," after which the officer placed defendant in handcuffs and advised him of his Miranda^[2]rights. According to the officer, defendant's eyes were bloodshot and his speech was slurred, which along with "an odor of intoxicants that was coming from his person," caused the officer to suspect that defendant had been consuming alcohol. The officer reported that he obtained a warrant for a blood draw which was conducted at 2:30 a.m. The laboratory result from the State Police indicated that defendant had a BAC of 0.064 grams of alcohol per 100 milliliters of blood.

Defendant testified on his own behalf, and when he was asked on cross-examination how much alcohol he drank on the night in question, defendant replied: "Probably three drinks. Maybe four," at "like 12:00, 12:15." Defendant answered in the negative when asked if "slamming . . . three alcoholic drinks" affected his driving. Defendant explained that he was not going far, and he testified that the alcohol would "hit" him after he reached his destination and then would dissipate before he drove again.

The trial court provided instructions on fleeing and eluding, and driving while intoxicated. The Court also instructed the jury on the "less serious charge of operating a motor vehicle while visibly impaired" as an alternative to driving while intoxicated. See MCL 257.625(3). As noted, the jury found defendant not guilty of fleeing and eluding, but guilty of driving while intoxicated.

On appeal, defendant raises some instructional issues, and also one of prosecutorial error. And, because defense counsel did not preserve any of those appellate objections below, defendant also claims that he was convicted without the benefit of the effective assistance of counsel.

II. ANALYSIS

Defendant argues that he was deprived of his right to the effective assistance of counsel. We agree.

Claims of ineffective assistance of counsel present mixed questions of fact and law. People v Head, 323 Mich.App. 526, 539; 917 N.W.2d 752 (2018). Factual findings are reviewed for clear error and legal conclusions are reviewed de novo. Id.

"To prevail on a claim of ineffective assistance, a defendant must, at a minimum, show that (1) counsel's performance was below an objective standard of reasonableness and (2) a reasonable probability exists that the outcome of the proceeding would have been different but for trial counsel's errors." Id. A defendant pressing a claim of ineffective assistance of counsel must overcome a strong presumption that counsel's tactics were matters of sound trial strategy. People v Henry, 239 Mich.App. 140, 146; 607 N.W.2d 767 (1999). "This Court does not second-guess counsel on matters of trial strategy, nor does it assess counsel's competence with the benefit of hindsight." People v Traver, 328 Mich.App. 418, 422-423; 937 N.W.2d 398 (2019). However, "a court cannot insulate the review of counsel's performance by calling it trial strategy." People v Trakhtenberg, 493 Mich. 38, 52; 826 N.W.2d 136 (2012).

In this case, defendant was found guilty of OWI, and OWI is governed by MCL 257.625, which provides in relevant part:

(1) A person, whether licensed or not, shall not operate a vehicle on 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 . . . .

* * *

Accordingly, an OWI conviction can be premised on a finding that the defendant was "under the influence of" alcohol or on a finding that the defendant's BAC reached or exceeded 0.08.

Defendant's arguments stem from the premise that the jury was improperly led to believe that it could find defendant guilty based on an impermissible inference that his BAC was higher at the time he was driving than at was at the time his blood was drawn. The parties appear to agree that the evidence was insufficient to support a conviction based on the theory that defendant drove with a BAC higher than .08 and that the only permissible basis for a conviction was based on the theory that defendant was impaired.^[3] We agree with this premise because: at the time of the blood test, defendant's BAC was only 0.064; MCL 257.625a(6)(a) provides that "[t]he amount of alcohol . . . in a driver's blood . . . at the time alleged as shown by chemical analysis of the person's blood . . . is presumed to be the same as at the time the person operated the vehicle;" and no evidence was presented regarding rates of alcohol absorption. We conclude that defense counsel erred by: (1) failing to object to the trial court's instruction that a conviction could be based on either theory; (2) failing to request an instruction regarding the permissible use of the evidence pertaining to defendant's BAC; and (3) failing to object to improper arguments by the prosecutor suggesting that the jury could convict defendant pursuant to either theory. We further conclude that the combination of these three errors denied defendant his right to a fair trial and that there is a reasonable probability that the outcome of defendant's trial would have been different but for these mistakes. Finally, we disagree with the dissent's contention that caselaw from the United States Supreme Court requires that we affirm.

A. JURY INSTRUCTIONS

Defense counsel erred by failing to object to a jury instruction providing that the jury could find defendant guilty based on multiple theories. Defense counsel likewise erred by failing to request instructions clarifying how the evidence pertaining to defendant's BAC could permissibly be used.

"A criminal defendant has the right to have a properly instructed jury consider the evidence against him." People v Rodriguez, 463 Mich. 466, 472; 620 N.W.2d 13 (2000) (quotation marks and citation omitted). The trial court "must properly instruct the jury so that [the jury] may correctly and intelligently decide the case. The instruction to the jury must include all elements of the crime charged, and must not exclude from jury consideration material issues, defenses or theories if there is...