1.3Attempts

Attempted traffic offenses may be governed by either the MVC, MCL 257.204b, or by the general attempt statute, MCL 750.92.

A.MVC Provisions

MCL 257.204b establishes sanctions and penalties for attempted traffic offenses as follows:

“(1) When assessing points, taking licensing or registration actions, or imposing other sanctions under [the MVC] for a conviction of an attempted violation of a law of this state, a local ordinance substantially corresponding to a law of this state, or a law of another state substantially corresponding to a law of this state, the secretary of state or the court shall treat the conviction the same as if it were a conviction for the completed offense.

(2) The court shall impose a criminal penalty for a conviction of an attempted violation of this act or a local ordinance substantially corresponding to a provision of this act in the same manner as if the offense had been completed.”

MCL 257.204b distinguishes between attempted offenses for purposes of imposing licensing or vehicle sanctions and for purposes of imposing criminal penalties.

Licensing and vehicle sanctions—MCL 257.204b(1) applies to attempted violations of any Michigan law, local ordinance substantially corresponding to a Michigan law, or substantially corresponding law from another state for which licensing or vehicle sanctions are imposed under the MVC. Under MCL 257.204b(1), any attempted offense that results in licensing or vehicle sanctions under the MVC must be treated as a completed offense for purposes of imposing sanctions.

Criminal penalties—MCL 257.204b(2) requires courts to treat attempted violations of “this act,” i.e., of the MVC, or a substantially corresponding local ordinance, as completed offenses for purposes of imposing criminal penalties. Thus, MCL 257.204b(2) does not apply to attempted traffic offenses not codified in the MVC, such as unlawful driving away a motor vehicle under MCL 750.413. Criminal penalties for offenses not codified in the MVC are governed by the general attempt statute, MCL 750.92. See People v Cervi, 270 Mich App 603, 618 (2006) (general attempt statute applies only where there is no express provision for attempt in the statute under which the defendant is charged).

Moreover, MCL 257.204b(2) only addresses the penalties for attempted violations of the MVC; it does not criminalize them. People v Burton, 252 Mich App 130, 136 (2002) (addressing former MCL 257.625(17), which contained substantially similar language as MCL 257.204b(2)). In Burton, the defendant challenged his convictions of attempted violations of MCL 257.625 and MCL 257.904 on the grounds that the MVC did not criminalize attempts. Burton, 252 Mich App at 133. The Court of Appeals agreed, stating that the MVC “continues to treat violations of the code . . . as if they were completed offenses for purposes of punishment, but it does not specifically proscribe and include attempted violations within the bounds of the code.” Id. at 136 n 7. In the absence of a statutory provision specifically criminalizing attempts, attempted violations of the MVC should be tried under the general attempt statute.

B.General Attempt Statute

The general attempt statute, MCL 750.92, applies to attempted traffic offenses that are not covered by MCL 257.204b. The general attempt statute provides:

“Attempt to commit crime—Any person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration, or shall be intercepted or prevented in the execution of the same, when no express provision is made by law for the punishment of such attempt, shall be punished as follows . . .”

The elements of attempt are: “(1) an attempt to commit an offense prohibited by law, and (2) any act towards the commission of the intended offense.” People v Thousand, 465 Mich 149, 164 (2001). Moreover, “the elements of attempt under [MCL 750.92 include] ‘an intent to do an act or bring about certain consequences which would in law amount to a crime; and . . . an act in furtherance of that intent which, as it is most commonly put, goes beyond mere preparation.’” Thousand, 465 Mich at 164, quoting People v Jones (Mearl), 443 Mich 88, 100 (1993). Attempt is a specific intent crime. People v Langworthy, 416 Mich 630, 644–645 (1982). When factually appropriate, the trial court should instruct the jury that it may convict the defendant of attempt even if the evidence proves that the crime was completed. CJI2d 9.1.

MCL 750.92 sets forth the punishment for a conviction of attempt:¹

“2. If the offense so attempted to be committed is punishable by imprisonment in the state prison for life, or for 5 years or more, the person convicted of such attempt shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or in the county jail not more than 1 year;

3. If the offense so attempted to be committed is punishable by imprisonment in the state prison for a term less than 5 years, or imprisonment in the county jail or by fine, the offender convicted of such attempt shall be guilty of a misdemeanor, punishable by imprisonment in the state prison or reformatory not more than 2 years or in any county jail not more than 1 year or by a fine not to exceed 1,000 dollars; but in no case shall the imprisonment exceed 1/2 of the greatest punishment which might have been inflicted if the offense so attempted had been committed.”