Offense Variable 18 (OV 18) measures the degree to which the offender's ability to operate a vehicle, vessel, ORV, snowmobile, aircraft, or locomotive was affected by alcohol or drugs. OV 18 is scored only when the offense is a crime against a person or a crime against public safety and the crime involves the operation of such a vehicle. MCL 777.22.
Scoring Table
| Points | Scoring Provision |
|---|---|
| 20 | The offender operated a vehicle when his or her bodily alcohol content (BAC) was 0.20 grams or more per 100 mL blood, per 210 L breath, or per 67 mL urine. MCL 777.48(1)(a). |
| 15 | The offender operated a vehicle when BAC was 0.15 or more but less than 0.20 grams per 100 mL blood, per 210 L breath, or per 67 mL urine. MCL 777.48(1)(b). |
| 10 | The offender operated a vehicle while under the influence of alcohol or a controlled substance; or while the body contained any amount of a schedule 1 controlled substance under MCL 333.7212; or while the offender had a BAC of 0.08 or more but less than 0.15 grams per 100 mL blood, per 210 L breath, or per 67 mL urine. MCL 777.48(1)(c). |
| 5 | The offender operated a vehicle while visibly impaired by alcohol or a controlled substance, or was less than 21 years of age and had any bodily alcohol content. MCL 777.48(1)(d). |
| 0 | The offender's ability to operate a vehicle was not affected by alcohol or a controlled substance. MCL 777.48(1)(e). |
| Note: Effective September 30, 2003, 2003 PA 134 amended this statute. Pre-2003 provisions (with different BAC thresholds) apply to offenses occurring before September 30, 2003. OV 18 is a McGraw variable; it applies only to the sentencing offense and does not authorize consideration of prior OWI conduct. | |
Applicability — Vehicle Operation Element Required
OV 18 was improperly scored in a case of second-degree murder because at the time of the offense it could only be scored if an "element" of the offense involved the operation of a vehicle. Second-degree murder does not inherently require vehicle operation. The statute limits OV 18 scoring to offenses where vehicle operation is a component — crimes against persons or public safety crimes that involve such operation.
Evidence Standards for Scoring
The trial court erred in scoring OV 18 where there was no evidence that the defendant was visibly impaired in a case of vehicular manslaughter. The police testified that the defendant was coherent after the accident, despite testimony that the defendant had used marijuana within 12 hours of the incident. Past marijuana use — without evidence of current impairment or measurable BAC at the time of the offense — is insufficient to support any OV 18 score.
The trial court did not err in assessing 5 points for OV 18 for alcohol being present in the body of an underage drinker at the time of the offense. MCL 777.48(1)(d) does not limit proof for an underage drinker to scientific measurement. Where there was testimonial evidence that the underage defendant was drinking prior to the accident, the absence of a measured BAC or visual impairment evidence is not dispositive. For underage operators, the "any bodily alcohol content" standard applies and may be established through testimony.
Endnotes
- People v Hindman, 472 Mich 975 (2005)
- People v Smith, unpublished per curiam opinion of the Court of Appeals, issued April 20, 2004 (Docket No. 245357)
- People v Magee, unpublished per curiam opinion of the Court of Appeals, issued January 13, 2009 (Docket No. 280534)
- People v McGraw, 484 Mich 120 (2009)