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People v. Kulpinski10/17/2000
FOR PUBLICATION
9:00 a.m.
Following a jury trial, defendant was convicted of involuntary manslaughter, MCL 750.321; MSA 28.553, and operating a motor vehicle under the influence of intoxicating liquor (OUIL) causing death, MCL 257.625(4); MSA 9.2325(4). The trial court sentenced defendant to imprisonment for five to fifteen years for each conviction, with the sentences to run concurrently. Defendant appeals as of right. We affirm.
I.
Defendant's convictions stem from an automobile accident on June 27, 1997, in which defendant, while driving his pick-up truck northbound on M-66, crossed the centerline of the road into the southbound lane and struck and killed Helen Mason in her Subaru Legacy wagon. The road was dry and clear on that date, and several witnesses to the accident consistently testified at trial that immediately before the fatal collision, defendant's truck was weaving erratically into the opposing lane, as if nobody was controlling it. Following the accident, defendant was, by all accounts, belligerent, uncooperative, and confused. Witnesses noted a strong, distinct odor of alcohol emanating from defendant. Defendant was transported to a hospital for treatment of his injuries, at which time a blood test revealed that defendant's blood alcohol level was .15 percent.
II.
On appeal, defendant first maintains his convictions and sentences for OUIL causing death and involuntary manslaughter constitute multiple punishments for the same offense in violation of the double jeopardy provisions of the United States and Michigan Constitutions, US Const, Am V; Const 1963, art 1, § 15. We disagree.
In order to avoid forfeiture of this unpreserved constitutional issue on appeal, defendant must show that: (1) an error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Once these three requirements have been satisfied, this Court must then "exercise its discretion in deciding whether to reverse." Id. Reversal is warranted only when the plain, unpreserved error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity, or public reputation of judicial proceedings independent of the defendant's innocence. Id.
A double jeopardy challenge constitutes a question of law which this Court reviews de novo on appeal. People v Walker, 234 Mich App 299, 302; 593 NW2d 673 (1999). The intent of the Legislature is the determining factor under the Double Jeopardy Clauses of the federal and state constitutions, and an alleged violation of this constitutional guarantee is measured by the standards set forth in People v Denio, 454 Mich 691, 707-709; 564 NW2d 13 (1997):
The United States Supreme Court has repeatedly held that the test enumerated in Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932), is to be used to determine legislative intent in analyzing the protection afforded by the Double Jeopardy Clause of the United States Constitution:
"For over half a century we have determined whether a defendant has been punished twice for the `same offense' by applying the rules set forth in Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932). If `the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.' Ibid. In subsequent applications of the test, we have often concluded that two differen
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