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Case Summary -- Pepper Spray Is No Mere Irritant

People v Savage
Michigan Court of Appeals, Docket No. 339417
Released and Approved for Publication April 23, 2019

Mr. Savage was convicted of armed robbery and several other charges in relation to to a robbery of a hotel in Hartland, Michigan. Mr. Savage was sentenced to serve 20 to 40 years in prison on the armed robbery charge. 

Although several issues were raised on appeal by Mr. Savage, the issue that caught my attention was whether "pepper spray" constitutes a "harmful chemical substance" or merely a "chemical irritant." The complainant had testified that, during the robbery, Mr. Savage had sprayed her with pepper spray. Although the complainant suffered no life-threatening injuries, she "testified that it took a while for the effects of the pepper spray to subside" and that "she was in pain for about 24 hours", suffering "no lasting effects." At sentencing the trial court concluded that, for the purposes of the sentencing guidelines, the pepper spray was a "harmful chemical substance", which resulted in a score of 20 points for OV 1 and 15 points for OV 2. On appeal, Mr. Savage argued that pepper-spray is a chemical irritant that, while it may cause discomfort, is not "harmful." The Court of Appeals disagreed. 

The court first noted that there existed no clear precedent to help answer the question. However, the court, even though it acknowledged that pepper spray is a chemical irritant, held that it is also a "harmful biological substance." Altough the court acknowleged that "in nearly all uses of pepper spray, the injuries are temporary, . . . . there is nothing in the plain language of OV1 to suggest that the Legislature intended that only a permanent injury qualify for a higher point score." The court also observed that, "in the Firearms chapter of the Penal Code, the Legislature has provided that pepper spray can lawfully be used as a self-defense device under certain circumstances", thus in the opinion of the court, treating pepper spray as "a gas or substance that will temporarily or permanently disable, incapacitate, injure, or harm a person." The court also concluded that other jurisdictions, including the 6th Federal Circuit, Georgia, and Louisiana, have concluded that pepper spray is harmful. 

The court dismissed Mr. Savage's argument that the court's holding would treat pepper spray as more severe than a short-barrelled shotgun or pistol. The court said simply, "It is not our place to divine why the Legislature made particular policy choices when enacting a statutory scheme, it is only our place to determine what choice the Legislature actually made." The court also dismissed Mr. Savage's argument that the statute's creation of a lesser class of weapons, which it called, "irritants" evidences its intent that pepper spray would fall under that definition. However, the court insisted that the statutory language was not ambiguous, and therefore it need not try to figure out what the legislature meant by "irritant" as opposed to "harmful substance." 

While this may seem to many people to a relatively small nuance, the result of the distinction in Mr. Savage's case was a difference of 112 months (just over 9 years) on the top end of his guideline range. If you have been accused or convicted of a crime, it is important that you have a lawyer by your side who understands the law. The trial and appellate lawyers of Kershaw, Vititoe & Jedinak, PLC make it a priority to understand the law and to fight for our clients. 

For more information, please see our criminal defense page if your case has not yet resulted in a conviction or our felony appeals page if you have already been convicted of a crime. If you are a trial lawyer and would like to refer a client to us for an appeal, please see our attorney appeals referrals page.

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