The number one biggest mistake that a person charged with drunk driving can make is to assume right from the start that there is no defense.
Michigan DUI Case Time Limits
How Long Does a Michigan DUI / DWI / OWI Case Take To Finish?
It has been our experience that most Michigan drunk driving cases take about four to six months to fully resolve. A case is "fully resolved" when either there has been a dismissal, an acquittal (not-guilty jury verdict) or you have been sentenced. Some cases can be fully resolved in less then four to six months, but some cases do take more time. It is unusual for drunk driving cases to take more than a year to resolve, but this does happen. There are many things that can impact the amount of time necessary to complete your drunk diving case, and one of the dominant factors is how quickly we are able to complete our investigation. Other important factors include how quickly the court is able to schedule hearings and eventually trial. If you decide at some point to plead guilty to the charge of OWI or OWVI, or some other less serious offense, then your case will usually take less time to schedule then if you decide on a bench or jury trial. Regardless of whether you plead guilty or take your drunk driving case all the way to trial, some courts have more cases per judge then others, and it is generally true that the busier the court or judge the longer your case will take to resolve.
One of the biggest factors affecting the overall amount of time necessary to complete your Michigan DUI / DWI / OWI case is the amount of time necessary to complete a proper and thorough DUI / DWI / OWI investigation. If you hire a lawyer that simply follows you in to court and stands next to you as you plead guilty, and does so at the first available opportunity, then your case might only take four to six weeks to resolve. However, a proper defense to any drunk driving charge begins with a thorough DUI / DWI / OWI investigation. A good investigation is critical to a successful defense, and a proper DUI / DWI / OWI investigation takes considerable time. This is because it often can take several weeks just for the prosecutor to provide us with the necessary reports and other "discovery", that is, all of the information the police have provided to the prosecutor about their investigation your case.
Additional time may be required to obtain other necessary documents that we must obtain directly from the police, such as videotapes and DataMaster breath testing simulator logs. If your case involves blood, then more time will be required to obtain the necessary documents from the State Lab in Lansing. Once all of these documents and things are obtained, they must be carefully reviewed to determine if all the proper and necessary DUI / DWI / OWI and criminal procedures were followed, and to see if any of your rights may have been violated. Then there is the time necessary for our investigator to complete his own investigation. As you can see, much of the time required to complete the investigation of your case is beyond our control.
Pre-January 2006 Time Limits for Michigan DUI / DWI / OWI cases:
On top of all this there are several time limits that do apply to your drunk driving case. These time limits include your right to have the case completed within 180 days. This 180 day rule typically only applies if you are in jail while waiting for your case to be heard. Usually if the prosecutor cannot bring your drunk driving case to trial within this 180 day period, it will be dismissed temporarily and sometimes permanently. There is also the "77-day" rule, which basically requires that your DUI / DWI / OWI arraignment take place within 14 days of your arrest, that there be a pretrial within 35 days, and full resolution within 77 days. This rule is "statutory" and is routinely not followed by judges. This is true in part because the law says that a failure to follow this rule is not cause for dismissal.
Finally, there are the time limits imposed by Supreme Court administrative order. These time limits are based on a rule passed by the Michigan Supreme Court in 2003. Some judges follow these rules, some do not. The rule provides as follows:
ADMINISTRATIVE ORDER NO.2003-7
Caseflow Management Guidelines
Felony, Misdemeanor, and Extradition Detainer Proceedings.
Misdemeanor. 90% of all statute and ordinance misdemeanor cases, including misdemeanor drunk driving and misdemeanor traffic, should be adjudicated within 63 days from the date of first appearance; 98% within 91 days; and 100% within 126 days.
Felony and Extradition/Detainer. 100% of all preliminary examinations in felony, felony drunk driving, felony traffic, and extradition/detainer cases should be commenced within 14 days of arraignment unless good cause is shown.
New Court Rules Unfair to Michigan Drinking Drivers
On January 1, 2006 a new court rule will go into effect that will require the majority of Michigan drunk driving cases to be resolved by trial or plea of guilty within 91 days. This is a significant change in the law because it formalizes and shortens time limits that already exist, and does so squarely at the expense of the rights of the drunk driving accused. One may argue that as a consequence of passing this new rule the Supreme Court has inadvertently compromised the very Constitution they are meant to uphold. This is because the effect of the rule will be to deny the drunk driving accused the fundamental due process right to be fully informed of the charges they face as well as the equally critical right to a fair trial.
The reason this new time limit creates this Constitutional quandary is that it places an unrealistic, expensive and in some circumstances insurmountable burden on everyone involved. Any person who is accused of a crime has a fundamental due process right to know the basis for the charge, in other words, to know the facts upon which the prosecutor claims the law has been broken. In the context of drunk driving, the necessary information includes, at a minimum, the narrative reports prepared by the police who arrested the alleged drunk driver, any videotapes that may exist, and all the information required to show that the equipment used to test the motorist's breath or blood was working properly. Obtaining this information takes time, in many cases several weeks, and sometimes even months.
Devising a system that will assure that the accused will obtain this information quickly enough to satisfy the Constitution and the court rule will require that police departments and prosecuting attorney offices hire more staff to process and disseminate the required information. Realistically, the costs involved in such an endeavor means that necessary staff additions are unlikely. Technology might solve the problem as well, but this represents an even bigger financial investment. In response to these problems the district judges are likely to simply set cases for trial long before these facts are known to the drunk driving accused, and in so doing place the burden of compliance back on the accused. In other words, the burden will be placed exactly where the Constitution dictates that it does not belong.
Nevertheless, it is only after all of this necessary information is obtained, reviewed and analyzed that a defense attorney and his or her client can determine if any of the motorist's rights have been violated by the police, or if the breath or blood test is unreliable or inaccurate. There are many reasons why problems with chemical testing may occur, but without adequate research time it is not possible to know if the results can or should support a conviction. Then, if problems that compromise the integrity of the breath or blood test are uncovered, these problems must be brought to the attention of the court. This process is called "motion practice", and requires that written arguments be presented to the judge and prosecutor and sometimes that testimony be taken from witnesses in court. This requires additional time, usually several more weeks or months. Once this process is complete, then and only then is it proper to set a case for trial. If the case is immediately set for trial there will be no time to for the defense to complete the necessary pretrial investigation.
Adding to the problem is the fact that most district courts only hold criminal trials during certain days or weeks of each month. This is because people accused of drunk driving have a right to have their cases heard by juries, and jurors are not always available to the court. If the next "jury term" is before the 91 days, this will inevitably result in even greater time constraints being imposed on the accused.
Another Constitutional problem is that the new rule appears to violate the separation of powers. The Michigan Legislature has already included certain time limits for drunk driving cases. These time limits were first included in the 1999 changes to Michigan's drunk driving statutes, and slightly changed again in 2003 when the Michigan Legislature redrafted the State's drunk driving laws to comport with the national .08 legal limit. Time limits of this sort are more properly the province of the legislature, and by passing this new court rule, the Michigan Supreme Court has essentially done an end-run around this existing legislation.
This new court rule also takes authority away from the district judges. Whereas previously the judges had much more discretion to allow cases to take far more time if he or she believed that the additional time was necessary to ensure justice for the accused, now the rules require that the judges comply with the rule whether or not the particular circumstances of the case warrant such a short time period.
What is of greatest concern to us is that this new rule also provides that if the judges are not able to timely dispose of their "judicial work" (meaning within 91 days for most drunk driving cases) then the chief judge must report "these facts to the state court administrator who will, under the Supreme Court's direction, initiate whatever corrective action is necessary". This provision gives the judges significant incentive to follow this new time limit. You should understand however that a failure to follow the rule WILL NOT result in the dismissal of your case.
In other words, the Supreme Court will now be babysitting the district court. In fact, if the Supreme Court determines that a particular judge has too many old cases on his or her docket, they may actually pressure the judges by sending a clerk to sit in the judge's court to observe how the court is conducted. These written monthly reports also create a public record, meaning they will provide fodder for the opponent in the district court judge's next election.
Clearly the district court judges are being constrained to follow the new rule, and while this may all seem completely reasonable to people who have not participated in the justice system, the new rules are extremely unpopular with the district court judges, and even more unpopular with those who, like myself, aggressively and successfully defend the drunk driving accused.
DUI DISCOVERY AND THE “126-DAY” RULE - A DEFENSE ATTORNEY’S PERSPECTIVE
Introduction:
As is now well known, MCR 8.110 (c)(5) imposes certain time limits on the trial courts relative to the completion of criminal cases. Thankfully, MCR 8.110 was recently amended so that the 91 day rule was “extended” by 35 days to become the 126 day rule. (Effective September 12, 2006). The rule now requires that if misdemeanor cases and cases involving local ordinances that have criminal penalties remain pending after 126 days, then the chief judge must report such “untimely” cases to the state court administrator. The same is true for felony cases that remain pending after 301 days. The reporting requirement is now quarterly rather than monthly and there is no longer a need to give a reason for the delay. However, MCR 8.110(C)(4) was left in tact, and that provision still requires the state court administrator, under the Supreme Court’s direction, to take whatever corrective action is necessary against a judge that does not timely dispose of his or her judicial work.
How Complete Discovery Often Conflicts with Compliance:
Full compliance with these time limits is difficult for everyone involved. However, from the defense attorney’s perspective, the number one factor that militates against such compliance is Michigan’s labyrinthine criminal discovery framework. This complexity arose out of the Constitutional need for information, evidence, and the production of witnesses, and because of this complexity it is probably true that many attorneys, defense and prosecution alike, don’t fully understand or appreciate all of the rules, statutes, case law, and administrative orders that are involved once someone becomes “the accused.” Consider for example this non-exhaustive list:
Brady v. Maryland SEQ CHAPTER \h \r 1373 U.S. 83, 83 S. Ct. 1194 (1963) and Bay County v. Bay Prosecutor SEQ CHAPTER \h \r 1109 Mich. App. 476, 311 N.W.2d 399 (1981) re: due process issues;
MCR 2.506 re: subpoenas;
MCR 6.201 re: felony discovery;
Admin Order 99-03 re: scope of discovery in misdemeanor cases;
People v. Greenfield SEQ CHAPTER \h \r 1271 Mich. App. 442, 722 N.W.2d 254 (2006) & People v. Phillips SEQ CHAPTER \h \r 1468 Mich. 583, 663 N.W.2d 463 (2003) re: same as above, & remedy for violations;
People v Perlos, SEQ CHAPTER \h \r 1436 Mich. 305, 462 N.W.2d 310 (1990) and MCL § 257.625a(6)e re: hospital blood results in OWI crashes;
MCL § 257.625a(8) re: test results before 2 days or else evidence barred;
MCL § 780.651 re: search warrants, tabulations, what has to be filed with court, etc.;
HIPPA/45 CFR § 164.512 re: confidentiality of medical records & exceptions;
FOIA re: info from governmental bodies and remedies for non-compliance;
MCL § 600.2167 re: lab reports at prelim exam;
MRE 1101b8 re: use of hearsay, in lieu of witnesses, at exams;
MRE 902(11) re: certified business records (medical, bank, etc.).
Understanding the utility and interplay of these rules is difficult enough, but staying in compliance with them and with MCR 8.110 is often simply not possible.
Michigan’s arduous discovery framework is further compounded by all of the different compliance methods used by the various courts, law enforcement offices and prosecuting attorneys. Many of these methods are markedly different from one another. In this writer’s experience, most courts first require that a discovery demand be filed and sent to prosecuting attorney and/or police department. It is often unclear, especially for retained counsel, who will actually retrieve the discovery, copy it, and then forward the discovery to the requesting party. In some instances this is due to the fact that most agencies require payment, which itself necessitates several additional steps, including a request for payment by the agency, the drafting of a check for payment by defense counsel and the tendering of this payment to the responsible party. In the majority of instances, request and delivery of the discovery is accomplished via regular mail. In these cases the payment must still be received before the discovery is actually sent to the attorney. However, some police departments induce further delay by requiring that the discovery be paid for and/or picked up in person.
All told, Michigan’s discovery process requires, from request to receipt, an optimistic minimum of four to six weeks, but full compliance most often requires eight to ten weeks. Less optimistically, there are many things that might add to the time necessary to complete discovery. For example, while many police departments will forward discovery to the defense attorney upon request and payment, others require that they first receive a letter from the prosecuting attorney’s office authorizing the release. This of course adds more time to mix. By accident or design, many departments throw up roadblocks to efficient discovery. In one extreme example, a department in Oakland County requires that defense counsel first tender their request along with a blank video cassette. Once the video is copied, defense counsel must then again travel to the department to pay for and pick up the completed video.
Where the state police are involved, rather than or in addition to “local” agencies, (and in all drunk driving cases where there was a blood draw), the process and the requirements are further complicated. This is because state departments require a FOIA request before any discovery will be released. After receipt these requests are sent to the central office in Lansing where they are reviewed by the FOIA coordinator, and if approved, the coordinator next sends a bill to the requesting party. These steps can sometimes add weeks or even months to the time required to obtain full and fair discovery.
Adding even more difficulty to the discovery dilemma are those cases where different “parts” of discovery must be obtained through different sources. For example, in some DUI cases the narrative report is obtained through the prosecuting attorney’s office whereas the videotapes and logs demonstrating (or not) the accuracy checks are obtained through the police department. If there is a blood test rather than a breath test, or if the state police are in any way involved, then there will be an additional FOIA request that must be sent to Lansing. Needless to say, the inevitable result of having many different agencies involved is more delay.
Once this discovery is in hand it must be reviewed by defense counsel who should then schedule a time to discuss it with the accused. Afterwards, the agreed upon defense plan must be executed, and if this is in fact a defense plan and not a plea and sentencing plan, execution will usually require the filing of motions and the scheduling of evidentiary hearings.
The above description applies only to “simple” criminal cases in the best case scenario. It does not apply to those many cases where the attorney is not retained/appointed until well after the “first appearance. It also does not include those involving expert witnesses, accident reconstruction and the like. Needless to say, the more “complex” a case, the longer the discovery phase is likely to take, and drunk driving cases are by their very nature complex cases. See, e.g., People v. Fett, 257 Mich. App. 76, 666 N.W.2d. 676 (2003) (rejecting the notion that drunk driving cases are “simple”).
Possible Solutions:
Discovery delays are the number one issue precluding everyone involved in the system from complying with the 126 day and 301 day rules. Consequently, the bench is urged to work with prosecutors and law enforcement to fashion a system that will streamline and make uniform the manner in which discovery is requested and provided. Anything that decreases the delay will be helpful, including court rules that favor mandatory and hastened discovery for all criminal defendants. Once discovery is complete, the major impediment to moving the case forward with the utmost celerity will have been removed.
Addendum of Cases Cited
1. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963):
The USSC held that the where another defendant admitted to the murder committed in the course of a robbery and the prosecution suppressed the confession, the co-defendant’s due process rights were violated. In this case, two defendants committed a robbery during which an individual was killed. The initial defendant made extrajudicial statements in which he admitted committing the murder, the prosecution withheld the evidence that was demanded by the second defendant’s lawyer, and the second defendant was convicted of first degree murder and sentenced to death. The Court held “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87.
2. Bay County Prosecutor v. Bay County Dist. Judge, 109 Mich.App. 476, 311 N.W.2d 399 (1981):
Here the Michigan Court of Appeals held that the prosecution’s refusal to provide a copy of the police report to the defense was a violation of the defendant’s due process rights. The defendant was charged with negligent homicide in connection with a car accident. After the arraignment, the defense issued a written request for the discovery to the prosecution, but the prosecutor refused to give the defense copies, instead offering to read portions of the police reports to the defense. At the preliminary exam, the district court judge learned that the prosecution refused to give a copy of the police report to the defense, so the judge adjourned the matter. Also, at the preliminary exam, the defense counsel attempted to talk with the police witnesses about the accident, and the prosecutor told the police officers they did not have to talk to the defense, subsequently, they refused to talk with the defense. A circuit court judge took superintending control and ordered the district court judge to hear the matter, so the district court judge scheduled a hearing and dismissed the case for the violation of the defendant’s right to a speedy trial and because of the prosecutions obstruction of justice. The prosecutor then brought the action in the circuit court, and the district court judge’s order was vacated and the charges were reinstated. After several more procedural moves, the case finally reached the Michigan Court of Appeals.
The Michigan Court of Appeals held that the prosecution’s instruction to the police witnesses to not speak with the defense, although questionable, did not rise to the level of irreversible error, but the refusal to provide defense with the police report was an “inexcusable obstruction to the pursuit of justice.” Id. at 485. With respect to the first issue, the court determined that the prosecution had the intent to subvert justice and prevent the defense from speaking with the police witnesses; however, since the defense could have used other methods, such as a deposition, to speak with the police witnesses, the defense could not claim prejudice. The court, however, did find the prosecution was obstructing justice with respect to the refusal to produce the police report. The court indicated that the purpose of the prosecutor’s office is to seek fairness within the system as well as the ascertainment of truth, and here, where the prosecution deliberately withheld the police report, it is acting to obstruct justice. Furthermore, the reading of the police report to the defense did not mitigate the damage since by withholding the whole report, and only reading portions of it, those actions suggests that the document was censored. Therefore, the Court withdrew the circuit court’s writ of superintending control and reinstated the district court’s dismissal of the charges.
3. People v. Greenfield, 271 Mich.App. 442, 722 N.W.2d 254 (2006).
In People v. Greenfield the Michigan Court of Appeals held that the booking room DataMaster videotape does not fall into the category of discoverable materials encompassed by MCR 6.201, and that the defense did not establish “good cause” for the court to order the discovery of the videotape, and therefore the breath test results should not have been suppressed in the trial court. In this case, the defendant was arrested for OUIL 3rd offense and his defense attorney sought all videotapes, recordings, etc. . . from the defendant’s arrest. Within five days of the defendant’s arrest the prosecutor asked the police to turn over all requested items, with the exception of the booking room videotape, since she did not know there was one in existence as this was a new video system the police had recently installed. In fact, none of the parties knew of the video’s existence until the preliminary exam. At the exam, the court issued a discovery order dictating that the defense counsel be provided with the video, however, the police department’s video system operated on a loop, and they notified the court that the oldest video they had in their possession was one from several days after the defendant’s arrest. The court suppressed the defendant’s DataMaster results at the defense counsel’s request on the grounds that the prosecution failed to comply with the discovery order, the circuit court affirmed.
The Michigan Court of Appeals, however, reversed the suppression of the DataMaster results. The court relied on MCR 6.201 and a Michigan Supreme Court case, People v. Phillips, 468 Mich. 583, 663 N.W.2d 463 (2003), to hold that either the discovery must be set forth in the rule, or the defense counsel must demonstrate good cause to demonstrate why the court should order the requested discovery, otherwise the court is without authority to mandate the discovery. In this case, the court indicated that the videotape does not fall into any category specified by the rule; therefore, it was not subject to disclosure pursuant to the rule. Furthermore, since the defense counsel did not claim, or show, that the video was exculpatory or that there was anything favorable to the defendant on it, the prosecution did not violate any rules by failing to provide the tape. In addition, the court indicated that upon a showing a good cause, the court may modify the discovery rules. However, in this case, the court reasoned that the defense counsel alleged that a video might exist and demanded that it be provided, which does not rise to the level of good cause. The court based its reasoning on the fact that the prosecution is generally not required to produce evidence that does not exist.
4. People v. Phillips, 468 Mich. 583, 663 N.W.2d 463 (2003).
In People v. Phillips, the Michigan Supreme Court held that MCR 6.201 governs discovery in criminal trials and that MCR 6.201 does not compel the creation of an expert’s report where one does not exist. The court found that the rule only mandates disclosure of reports that already exist; it does not require the production of reports where none exist. Although, the court did note that the court may modify the requirements of the rule upon a showing of good cause, but this case did not rise to that level, as there was no evidence of suppression of evidence.
5. People v. Perlos, 436 Mich. 305, 462 N.W.2d 310 (1990).
In People v. Perlos, the court held that the blood drawn at the hospital, which was later turned over to the prosecutor, did not violate the 4th Amendment and that section 9 of the MI implied consent law was constitutional. In this case, which was consolidated with several others, the defendants had been involved in accidents, they had been taken to hospitals, where they all had blood drawn for the purposes of treatment. The prosecutors then requested the blood results, but did not get a warrant or a release from the defendants, and the hospitals turned over the results. As a result, the defendants were charged with operating while intoxicated. The defendants challenged the hospitals’ release of the information on the ground that section 9 of the implied consent law violated their 4th and 14th Amendment rights.
The Michigan Supreme Court held that section 9 of the implied consent law is Constitutional and the acquisition of the defendant’s medical records from the hospitals did not violate the 4th Amendment. The court did recognize that a blood draw is a search or seizure under the 4th Amendment, but rejected the notion that the hospital was a state actor, and therefore, the hospital blood draw for medical purposes does not implicate constitutional protections. With respect to the hospital records, the court noted that the defendants did have a reasonable expectation of privacy in their medical records but that society does not consider this expectation of privacy reasonable. Furthermore, the court relied on several USSC cases where the Court held that individuals do not have a reasonable expectation of privacy in their records held by third parties, such as banks or accountants. Finally, the court looked at section 9 itself, and held that the legislature has determined that defendants do not have a reasonable expectation of privacy in their blood alcohol results. The court determined this was a carefully tailored statute which only allowed the state to access an individual’s blood alcohol results in a narrowly tailored situation. Finally, the court indicated that the public policy of getting drunk drivers off the roads and prosecuting them supported the implied consent law.
Our Intention is to Oppose These New Time Limits
Our main goal is to make sure that we obtain the best possible outcome for your case, regardless of how long this may take. The court rule has not yet gone into effect so it's not entirely clear what the overall impact will be. Based on prior experiences with other time limits it seems likely that there will not be strict adherence to these time limits, at least not by all judges, and that the degree of adherence will vary from court to court. Regardless of the possible impact, complicated laws and procedures like these are typical with all aspects of drunk driving cases, and this is all the more reason for you to hire a top lawyer who is aware of these various time limits, and as much as possible, can turn them to your advantage.
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