
    PEOPLE v DeLONG
    Docket No. 66772.
    Submitted May 12, 1983, at Lansing. —
    Decided August 2, 1983.
    Melvin A. DeLong was convicted on his plea of nolo contendere of resisting and obstructing a police officer, Bay Circuit Court, Eugene Penzien, J. Defendant also was convicted on his plea of guilty of being a third-offense habitual offender. Defendant appeals, urging that his plea of nolo contendere, which was offered because he was intoxicated at the time of the incident and could not sufficiently remember the events to provide a factual basis in support of his plea, must be set aside by reason of the failure of the prosecution to produce evidence negating his "intoxication defense” and that his habitual offender conviction must be set aside because the habitual offender statute applies only to a conviction for a subsequent felony and resisting and obstructing a police officer is, by legislative mandate, a misdemeanor. Held:
    
    1. While the prosecution must produce evidence refuting any "intoxication defense” when a plea of nolo contendere is offered to a specific intent crime, intoxication is not a defense to a general intent crime. Since resisting and obstructing a police officer is not a specific intent crime but rather a general intent crime, the prosecution had no duty to produce evidence refuting the fact of intoxication at the time of the incident giving rise to this criminal charge.
    2. The term "felony” as used in the habitual offender statute includes all crimes punishable by imprisonment for one year or more; accordingly, the offense of resisting and obstructing a police officer, which is punishable by a prison term of up to two years, is a felony for the purpose of the habitual offender statute notwithstanding its legislative classification as a misdemeanor for other purposes.
    Affirmed.
    References for Points in Headnotes
    [1, 2] 21 Am Jur 2d, Criminal Law § 155.
    Modern status of the rules as to voluntary intoxication as defense to criminal charge. 8 ALR3d 1236.
    
       59 Am Jur 2d, Obstructing Justice § 17.
    
       39 Am Jur 2d, Habitual Criminals and Subsequent Offenders § 2.
    
      1. Criminal Law — Intoxication — Specific Intent — Plea of Nolo Contendere.
    The prosecution must offer evidence refuting a defendant’s intoxication defense where the defendant offers a plea of nolo contendere to a specific intent crime because he was too intoxicated to remember the events which resulted in his being charged; without such refutation the specific intent element of the offense is without a sufficient factual basis to support a conviction.
    2. Criminal Law — Resisting and Obstructing a Police Officer — Intoxication.
    The criminal offense of resisting and obstructing a police officer is not a specific intent crime and intoxication should not be available as a defense, since intoxication is not a defense to a general intent crime (MCL 750.479; MSA 28.747).
    3. Criminal Law — Habitual Offenders — Felony — Resisting and Obstructing a Police Officer — Statutes.
    A felony, for purposes of the habitual offender statute, is any offense for which the offender may be punished by death or imprisonment for more than one year or any offense expressly designated by law to be a felony; a felon convicted of resisting an officer may be prosecuted under the habitual offender statute despite the fact that the statute creating the offense of resisting an officer defines the offense as a misdemeanor, since the maximum potential term of imprisonment for resisting an officer is two years (MCL 750.479, 769.11; MSA 28.747, 28.1083).
    
      Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, George B. Mullison, Prosecuting Attorney, and Thomas J. Rasdale, Assistant Prosecuting Attorney, for the people.
    
      Charles E. Binder, for defendant.
    Before: Mackenzie, P.J., and M. J. Kelly and S. Everett, JJ.
    
      
       Circuit judge, sitting on the Court of Appeals by assignment.
    
   Per Curiam.

Defendant pled nolo contendere to resisting and obstructing a police officer, MCL 750.479; MSA 28.747. He also pled guilty to being a third-offense habitual felony offender, MCL 769.11; MSA 28.1083. Sentenced to a term of from 32 to 48 months in prison, defendant appeals as of right.

Defendant states that he pled nolo contendere because he was intoxicated at the time of the incident and could not sufficiently remember the event to provide a factual basis in support of his plea. See generally GCR 1963, 785.7(3)(a). He now argues on appeal that the trial court erred in accepting his plea without first requiring the prosecution to produce evidence negating his "intoxication defense”.

It is well-established that when a nolo contendere plea is offered to a specific intent crime because the defendant was too intoxicated to remember the events of the incident the prosecution must offer evidence refuting the intoxication defense. See People v Polk (On Rehearing), 123 Mich App 737; 333 NW2d 499 (1983); People v Stoner, 23 Mich App 598, 608; 179 NW2d 217 (1970), lv den 383 Mich 806 (1970). Resisting and obstructing a police officer, however, is not a specific intent crime. People v Gleisner, 115 Mich App 196; 320 NW2d 340 (1982). Voluntary intoxication, therefore, is not a defense. Gleisner, supra, p 200; see People v Langworthy, 416 Mich 630; 331 NW2d 171 (1982) (expressly holding that voluntary intoxication is not a defense to general intent crimes). The trial court did not err, therefore, in accepting defendant’s nolo contendere plea to resisting and obstructing a police officer without requiring the prosecution to produce evidence refuting the fact of defendant’s intoxication at the time of the crime.

Defendant argues next that since resisting and obstructing a police officer has been specifically labeled by the Legislature to be a misdemeanor, see MCL 750.479; MSA 28.747, he cannot be sentenced as being a third-offense habitual felony offender. At first blush, defendant’s argument is attractive. Indeed, the habitual offender provision under which defendant was sentenced refers to a person committing a subsequent "felony” after having been previously convicted of two or more felonies or attempted felonies. See MCL 769.11; MSA 28.1083. The resisting-and-obstructing penal statute does in fact refer to such an offense as being a misdemeanor. See MCL 750.479; MSA 28.747.

The habitual offender provisions, however, are part of Michigan’s integrated code of criminal procedure, MCL 760.1 et seq.; MSA 28.841 et seq. The code specifically defines the term felony "as used in this act”, to include, among other things, offenses which are punishable by imprisonment of' one year or more. MCL 761.1(g); MSA 28.843(g). Resisting and obstructing a police officer is punishable by a prison term of up to two years. MCL 750.479; MSA 28.747. Thus, resisting and obstructing a police officer is a "felony” for purposes of application of the habitual offender provisions of the Code of Criminal Procedure. People v Rosecrants, 88 Mich App 667; 278 NW2d 713 (1979). But see People v Reuther, 107 Mich App 349, 353-359; 309 NW2d 256 (1981) (Bronson, J., dissenting; stating that the attempted possession of marijuana with intent to deliver, an offense labeled a "misdemeanor” but which carries a maximum penalty of two years imprisonment, should not be considered to be a felony for purposes of the limitation on length of probation provisions contained in the Code of Criminal Procedure).

Affirmed.  