Prior Record Variable 5 (PRV 5) measures prior misdemeanor convictions and prior misdemeanor juvenile adjudications. MCL 777.55 governs scoring. Not all misdemeanor convictions are countable—for offenses committed on or after October 1, 2000, only convictions and adjudications within specified categories qualify. The prior conviction or adjudication must have been entered before the sentencing offense was committed, and all must satisfy the ten-year gap rule of MCL 777.50.
Scoring Table
| Points | Scoring Provision |
|---|---|
| 20 | The offender has 7 or more prior misdemeanor convictions or prior misdemeanor juvenile adjudications. MCL 777.55(1)(a). |
| 15 | The offender has 5 or 6 prior misdemeanor convictions or prior misdemeanor juvenile adjudications. MCL 777.55(1)(b). |
| 10 | The offender has 3 or 4 prior misdemeanor convictions or prior misdemeanor juvenile adjudications. MCL 777.55(1)(c). |
| 5 | The offender has 2 prior misdemeanor convictions or prior misdemeanor juvenile adjudications. MCL 777.55(1)(d). |
| 2 | The offender has 1 prior misdemeanor conviction or prior misdemeanor juvenile adjudication. MCL 777.55(1)(e). |
| 0 | The offender has no prior misdemeanor convictions or prior misdemeanor juvenile adjudications. MCL 777.55(1)(f). |
| For offenses committed on or after October 1, 2000: Only offenses against a person or property, controlled substance offenses, weapon offenses, and OWI/impaired driving offenses may be counted. MCL 777.55(2)(b). Do not count a prior misdemeanor used to enhance the current offense to a felony. MCL 777.55(2)(a). | |
Qualifying Offense Categories (Post-October 1, 2000)
For offenses committed on or after October 1, 2000, only the following types of prior misdemeanor convictions and adjudications may be scored under PRV 5. MCL 777.55(2)(b):
- Offenses against a person;
- Offenses against property;
- Controlled substance offenses;
- Weapon offenses; and
- All prior misdemeanor convictions and adjudications for operating or attempting to operate a vehicle, vessel, ORV, snowmobile, aircraft, or locomotive while under the influence of or impaired by alcohol, a controlled substance, or a combination.
Additionally, MCL 777.55(2)(a) expressly prohibits counting a prior misdemeanor conviction or adjudication that was used to enhance the current sentencing offense to a felony.
Controlling Case Law
Qualifying Offenses: Controlled Substance Category
Misdemeanor convictions for possession of drug paraphernalia are properly scored under PRV 5 as controlled substance offenses. Although drug paraphernalia is not itself a controlled substance, acts related to drug paraphernalia have been criminalized because of the items' inextricable link to controlled substances. For this reason, offenses involving drug paraphernalia qualify as controlled substance offenses within the meaning of PRV 5.1
The defendant's prior non-driving alcohol-related misdemeanor convictions could not be scored in PRV 5 because they do not constitute controlled substance offenses. Alcohol is not a controlled substance within the meaning of the controlled substances statutes. Prior alcohol-related offenses are scorable under PRV 5 only if they fall within the OWI/impaired driving category, not the controlled substance category.2
PRV 5 was erroneously scored on the basis of a prior charge of possession of marijuana for which the defendant was assigned to deferral status under MCL 333.7411, because the defendant was discharged and the proceedings dismissed. MCL 333.7411 specifically provides that a discharge and dismissal does not constitute a conviction and is not an adjudication of guilt. Unlike HYTA status and expungements, MCL 333.7411 dismissals are not listed within the definition of "conviction" in MCL 777.50(4)(a) and therefore cannot be counted under PRV 5.3
Qualifying Offenses: OWI/Impaired Driving
The trial court properly scored the defendant's prior conviction for operating a vehicle as a minor with any bodily alcohol content (Michigan's "zero tolerance provision") under PRV 5. This conviction falls within the category of prior misdemeanor convictions for operating a vehicle while under the influence of or impaired by alcohol and is therefore a qualifying offense under MCL 777.55(2)(b).4
Qualifying Offenses: Crimes Against a Person
A misdemeanor conviction for malicious use of a telecommunications device is a scorable misdemeanor under PRV 5 as a crime against the person. The offense statute specifically addresses communications directed at "another person," making it a crime against the person within the meaning of MCL 777.55(2)(b).5
Non-Qualifying Offenses: Traffic and Public Order Violations
Driver's license violations fall within the Motor Vehicle Code and constitute offenses against public order. They do not qualify as offenses against a person, offenses against property, controlled substance offenses, or weapon offenses, and therefore cannot be counted under PRV 5. PRV 5 requires that the prior offense fit within one of the statutory qualifying categories; public order offenses do not qualify.6
The defendant was entitled to resentencing where a prior misdemeanor conviction for "failure to stop" was improperly used to assess points under PRV 5. A failure-to-stop conviction is not an offense against a person or property and does not fall within any other qualifying category under MCL 777.55(2)(b).7
The trial court reversibly erred in scoring PRV 5 using a number of "traffic misdemeanors" such as driving while license suspended and failure to display an operator's license. For purposes of PRV 5, only misdemeanors that constitute an offense against a person or property, controlled substance or weapons offenses, and operating under the influence are counted. Traffic regulatory violations not within these categories are excluded from PRV 5 scoring.8
Disorderly conduct convictions cannot be scored under PRV 5 as they do not fit within any of the qualifying categories. Disorderly conduct is a public order offense, not an offense against a person or property, not a controlled substance offense, and not a weapon offense.9
It was error to score PRV 5 for a California misdemeanor conviction of providing false identification to a peace officer. That offense falls under the California Penal Code chapter addressing crimes against Public Justice and does not constitute an offense against a person or property, a weapons offense, a controlled substance offense, or an OWI offense. Out-of-state misdemeanor convictions must be evaluated by mapping the out-of-state offense to the applicable qualifying categories under MCL 777.55(2)(b).10
Timing Requirement: Conviction Before Sentencing Offense
Convictions or juvenile dispositions entered after the sentencing offense was committed cannot be scored under PRV 5. The order of disposition for a juvenile adjudication must have been entered before the sentencing offense was committed. Where a juvenile illegal entry adjudication was not entered before the sentencing offense, it was error to count it under PRV 5.11
Enhancement Prohibition
MCL 777.55(2)(a) expressly prohibits scoring under PRV 5 any prior misdemeanor conviction that was used to enhance the current offense to a felony. This limitation is specific to PRV 5 and does not appear in PRV 2. Accordingly, prior misdemeanor convictions used to enhance a current offense to a higher-level felony (for example, prior OWI convictions used to make the current OWI a third-offense felony) must be excluded from PRV 5 scoring.12
Ten-Year Gap Rule and PRV 5
A prior misdemeanor conviction that is not itself a scorable offense under PRV 5 will nevertheless be considered in determining whether the defendant had a conviction-free period longer than ten years. A non-scorable misdemeanor bridges any gap that would otherwise exist, preventing earlier convictions from being excluded. This rule derives from the text of MCL 777.50, which refers to any prior conviction or adjudication in computing the gap, not merely those that are scorable under the PRVs.13
Counsel's failure to identify a ten-year gap that would have precluded scoring PRVs 1, 2, and 5 constituted ineffective assistance of counsel where the error resulted in a sentence above the proper guidelines range. Resentencing was required.14
Evidentiary Standard
PRV 5 scoring is determined by reference to the record under the preponderance of the evidence standard. People v Hardy, 494 Mich 430, 438 (2013); People v Osantowski, 481 Mich 103, 111 (2008).
Endnotes
- People v Stevens, 306 Mich App 620 (2014).
- People v Endres, 269 Mich App 414 (2006), overruled in part on other grounds in People v Hardy, 494 Mich 430, 438 (2013).
- People v James, 267 Mich App 675 (2005); MCL 333.7411; MCL 777.50(4)(a).
- People v Bulger, 291 Mich App 1 (2010).
- People v Maben, 313 Mich App 545 (2015).
- People v Giles, unpublished per curiam opinion of the Court of Appeals, issued November 8, 2016 (Docket No. 328046).
- People v Glover, unpublished per curiam opinion of the Court of Appeals, issued November 29, 2007 (Docket No. 272993).
- People v Dimovski, unpublished per curiam opinion of the Court of Appeals, issued December 18, 2003 (Docket No. 242726).
- People v Crews, 299 Mich App 381 (2013).
- People v Woolworth, unpublished per curiam opinion of the Court of Appeals, issued July 10, 2012 (Docket No. 297824).
- People v Gibbs, 299 Mich App 473 (2013); People v Endres, 269 Mich App 414 (2006).
- MCL 777.55(2)(a).
- People v Butler, 315 Mich App 546, 552 (2016); see also People v Key, unpublished per curiam opinion of the Court of Appeals, issued June 5, 2014 (Docket No. 313756); People v Cook, unpublished per curiam opinion of the Court of Appeals, issued July 13, 2010 (Docket No. 291518); People v Patino, unpublished per curiam opinion of the Court of Appeals, issued June 23, 2009 (Docket No. 284128); People v Buckner, unpublished per curiam opinion of the Court of Appeals, issued August 26, 2021 (Docket No. 351333).
- People v Anderson, unpublished per curiam opinion of the Court of Appeals, issued April 26, 2011 (Docket No. 296732).