Defendant Damaceno Abrego drove while
intoxicated, with his 6-year-old daughter and her 9-year-old half-sister in his
vehicle. He pleaded guilty to operating while intoxicated, second offense, with
a passenger under 16, and another charge.
On appeal, Abrego argued, among other things, that the trial court erred
in scoring Offense Variable 8, MCL 777.38, at 15 points on the theory that he
moved, or asported, the victims to a place or situation of greater danger. In an unpublished per curiam opinion, the
Court of Appeals agreed, ruling that the asportation was incidental to the
offense of which defendant was convicted.
The prosecutor appealed to the Supreme Court. On November 25, 2015, the Supreme Court
ordered oral argument on the application.
The parties have been directed to address whether the Court of Appeals
erred in holding that OV 8 should not have been scored where the movement was
“incidental” to the offense of operating while intoxicated, second offense,
with a passenger under 16.