Offense Variable 17 (OV 17) measures the degree of negligence exhibited by the offender. OV 17 is scored only when the offense is a crime against a person and the offense or attempted offense involves the operation of a vehicle, vessel, ORV, snowmobile, aircraft, or locomotive. MCL 777.22(1). Additionally, if any points are assessed under OV 6, no points may be scored under OV 17. MCL 777.47(2).
Scoring Table
| Points | Scoring Provision |
|---|---|
| 10 | The offender showed a wanton or reckless disregard for the life or property of another person. MCL 777.47(1)(a). [Do not score 10 points if points are given under OV 6.] |
| 5 | The offender failed to show the degree of care that a person of ordinary prudence in a similar situation would have shown. MCL 777.47(1)(b). |
| 0 | The offender was not negligent. MCL 777.47(1)(c). |
| Critical Limitation: OV 17 may not be scored if points are assessed under OV 6. MCL 777.47(2). OV 17 is also a McGraw variable — it may only be scored for conduct relating to the sentencing offense. The vehicle operation must be an element or component of the sentencing offense at the time it is committed. | |
Applicability — Vehicle Operation Must Be Part of the Offense
The trial court erred in scoring OV 17 where the defendant's operation of a vehicle occurred after he completed the crime of larceny from a person. OV 17 can only be scored for larceny from a person if the crime involved the operation of a vehicle at the time of the offense. Larceny from a person is completed when the taking occurs; post-offense vehicle operation does not relate back. The Supreme Court cited People v Smith-Anthony, 494 Mich 669, 689 n 61 (2013) and People v McGraw, 484 Mich 120 (2009) in support.
OV 17 was erroneously scored as inapplicable to the defendant's sentencing offense of assault with intent to do great bodily harm where the AGBH did not involve the operation of a vehicle, vessel, ORV, snowmobile, aircraft, or locomotive. If vehicle operation is not an element or component of the sentencing offense, OV 17 cannot be scored regardless of the type of offense.
OV 17 was miscored at 10 points in a case of armed robbery because at the time of the offense the statute required that the use of a vehicle be an element of the offense. Armed robbery does not inherently involve vehicle operation, and the facts of that case did not establish that the sentencing offense involved vehicle operation as a component.
OV 6 — Mutual Exclusivity
If any points are assessed for OV 6 (intent to kill or injure), then points cannot be scored in OV 17. The two variables are mutually exclusive by statutory command. MCL 777.47(2) is an absolute prohibition — it does not require that the OV 6 points affect the guidelines range; the mere assessment of any OV 6 points bars any OV 17 assessment.
No Contest Plea and OV 17
A no contest plea is an admission of all the essential elements of the charged offense. A no contest plea to the offense of reckless driving causing death establishes "willful or wanton disregard for the safety of person or property" for purposes of OV 17. The elements admitted through a no contest plea may be used to support OV 17 scoring without additional factfinding.
Endnotes
- People v Siders, 497 Mich 985 (2015)
- People v Wright, 483 Mich 1130 (2009)
- People v Dyson, unpublished per curiam opinion of the Court of Appeals, issued December 13, 2005 (Docket No. 256300)
- People v Stanko, unpublished per curiam opinion of the Court of Appeals, issued January 27, 2004 (Docket No. 242876)
- People v Davis, unpublished per curiam opinion of the Court of Appeals, issued February 11, 2021 (Docket No. 352489)
- People v McGraw, 484 Mich 120 (2009)