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The BBC recently reported that judges in the United Kingdom will be receiving guides to help them deal with scientific evidence in the courtroom.  Feedback from the judges has been positive, and the first science primers will address things like DNA and fingerprint evidence, as well as computer programs that (claim to) allow the identification of suspects from the manner of their walk.  While there is no question that judges could benefit from an education in science, are these primers a good idea?

On first blush, the answer seems to be yes.  The primers are said to explain complex scientific concepts simply and without jargon so that judges can understand the legal significance of the science and apply it to the case before them.  They are written by the “foremost experts” in the topics covered, including Nobel Prize-winning scientists.  According to the BBC:

The emphasis nowadays is for courts to be more proactive to actually challenge the prosecution for example and say ‘why is this report admissible? How is it going to help you? Is it really the right report for the issues in this case?

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If you are charged with drunk driving in Michigan, then the clear majority of judges will require that you abstain from all alcohol and all illegal drugs. This will be a condition of your bond, and to be sure that you are compliant with your bond, you will be tested, usually randomly, for both alcohol and drugs.

If you are a medical marijuana user, then these bond conditions present a special problem for the courts because you have the lawful right to use marijuana.  However, marijuana remains a schedule I drug at both the state and federal levels.  This means it is an illegal drug that you can use legally.

Because this is a legal gray area, courts differ relative to their willingness to allow a person who is on bond to continue using medical marijuana.  Some courts allow this while others do not.  Your attorney can help you determine what is likely in your case.

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In 2016 new laws were passed to allow and encourage roadside salvia drug testing.  The laws are set forth in MCL 257.62a, 257.625r, 257.625s, and 257.625t.  Michigan’s legislators passed these new laws because there is a belief that more drivers are under the influence of illegal and prescription drugs.  In fact, according to NHTSA, there has been a 32% increase in fatal accidents involving drug use.

As has been previously reported, the testing under these laws was delayed, and apparently, the Michigan State Police are ready to roll out the new program in five counties.  These five include Berrien, Delta, Kent, St. Clair and Washtenaw.

The saliva tests will be given when a motorist is suspected of being under the influence of drugs.  This might happen when the driver exhibits signs of intoxication, but a roadside breath test shows zero or very low for alcohol, or when the belief is that drugs may be on board in addition to any alcohol.

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If you are charged with drunk driving in Michigan, then at some point after your arraignment you will need to decide if you wish to plead guilty or stand trial. This is because all Michigan drunk driving crimes are classified as either misdemeanors or felonies.  This means that all people accused of drunk driving in Michigan have an absolute right to trial.  The trial can be either by a jury or by a judge.  Misdemeanor cases in Michigan are tried before juries of 6 people whereas felony cases are tried by juries of 12.  Verdicts in all criminal cases require that juries be unanimous, either in favor of conviction or in favor of acquittal.

The trial/no trial decision is a complex one and requires the assistance of an attorney familiar with the trial process, particularly, one familiar with drunk driving trials. However, relative to the trial option there are many things to consider in making this decision.  The first is the likelihood of conviction but this likelihood is best viewed within the context of the plea offer being made on the part of the prosecutor. Has the prosecutor offered to reduce the charge in exchange for your plea of guilty?  If so, then how “valuable” is that plea offer?  You are the only person who can assess this value.

When there is a plea offer, or in those cases where no plea offer is made at all, and your only choice is to plead guilty as charged, it may be useful to weigh this fact against the right(s) you are giving up by foregoing trial and pleading guilty.  Everyone accused of a crime has many trial rights, including the presumption of innocence, the right to call witnesses and the right to remain silent.  These are valuable rights and ones that should not be lightly waived or given up.

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Barone Defense Attorney Ryan Ramsayer recently handled a case in the 48th District Court and his representation resulted in the case being dismissed.  The reason for the dismissal was an unlawful traffic stop. The facts of this case are as follows:

Client (initials HN) was an OWI 2nd and leaving the scene of an accident. She was a .20 and repeatedly admitted she was drunk on the video. The allegation was that she had rear-ended a car at Orchard Lake and Maple. According to the victim, the subject vehicle then drove west on Maple and turned north on Rose Blvd. The BOL was a “white sedan” heading north on Rose from Maple.

The responding officer arrived at an intersection just north of Maple (a few hundred feet) and encountered a white Buick Verano driven by HN who was westbound and turning North on Rose.

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If you are stopped and the police smell alcohol or marijuana, then there’s a good chance you will be asked to step out of the car to perform field sobriety tests. If you fail one or more of these tests, then you will probably be arrested for OWI, or Operating While Intoxicated.

Michigan has not made it unlawful to refuse field sobriety tests, and if you refuse them, then the police will not be able to use any poor performance against you at trial.  Your attorney might also argue that without field sobriety tests the police lacked probable cause to make a lawful arrest. If successful, your case could actually be dismissed.  So there is a real benefit to refusing the field sobriety tests.

On the other hand, the prosecutor might argue that you refused the tests because you knew you’d fail them.  This is sometimes called a “consciousness of guilt.” Much has been written about consciousness of guilt arguments, and some courts believe that these arguments violate due process.  For example, if you exercise your constitutional right to remain silent, this should not later be used against you.  However, other courts have held that so long as you are advised ahead of time that your refusal will be used against you, then there is no due process violation.

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A Barry County Judge has indicated that he’s going to start cracking down on repeat drunk drivers by giving them a minimum of 30 days in jail.

Judge Michael Shipper was appointed by Governor Snyder in 2011 and is already tough on first-time offenders.  Now he says he’s ready to be even tougher on repeat drunk drivers.  He’s indicated that the 30-day sentences could be spread out over 15 weekends.

In Michigan, a second offense drunk driving charge is appropriate only where the offender has a prior offense within the prior 7 years.  If the prior offense is more than seven years old the new offense will be considered a first offense.  However, the same is not true for those drivers with two prior drunk driving offenses on their record.  Michigan has a lifetime look back for drivers with three or more total drunk driving convictions.  These drivers are considered felons and may face up to five years in prison.

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President Trump’s Department of Justice has proposed a new Office of Forensic Science and Forensic Science Board within the DOJ. This new board would have governing authority over all of Michigan’s forensic labs, including the Toxicology lab located in Lansing.  Nearly all drivers arrested for intoxicated driving and subjected to blood draws currently have their blood tested at this Lansing Toxicology lab.  Consequently, this new change could impact more than 10,000 DUI cases each year in Michigan.

The new Department would be headed by a Director, who would be appointed by the President.  The Director would report to the Attorney General. According to subsection b of the proposal, the mission of the new Forensic Science Division would be: to strengthen and promote the use of forensic science within the judicial system by supporting forensic science service providers, as they continually improve the validity, quality, and practice of forensic science through innovative solutions that focus on research and development, testing and evaluation, technology, information exchange, training, and capacity building for the forensic infrastructure.

One of the duties of the Director will be to work to ensure that appropriate accreditation, certification, standards, methods, best practices, and organizations exist for forensic disciplines.

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In some situations, the police can charge you with drunk driving in Michigan even if the police never saw you driving your car.  However, the legal analysis in these cases is very fact specific, and the law is quite complex.  In some situations, courts have upheld convictions when the police never saw anyone operating the car. But in other cases, courts have held there was no operation.  To understand why this difference exists, and why a court might allow such a non-witnessed drunk driving case to stand, you need know a few things about the drunk driving laws of Michigan.

To begin with, the crime of drunk driving is called OWI or “operating while intoxicated.”   Michigan does not use the word “drive” so Michigan’s drunk driving law is not called driving under the influence (DUI), or driving while intoxicated (DWI).  The word operate is much broader than the word drive. The Michigan Motor Vehicle Code defines “operate” or “operating” as “being in actual physical control of a vehicle” whether licensed or not. MCL 257.35a. Thus, the plain language of the statute requires that driver’s actions must establish “actual physical control” of the vehicle.[i]   But the analysis doesn’t end there.  What happens for example if a person is asleep or unconscious?

A question sometimes raised in this context is whether a sleeping or unconscious driver can be found to be in “actual physical control.”  In these cases, which often have unique facts, the Michigan Supreme Court has expanded the term “operation” such that ‘operating’ is defined in terms of the danger the OUIL statute seeks to prevent: the collision of a vehicle being operated by a person under the influence of intoxicating liquor with other persons or property. Accordingly, “[o]nce a person using a motor vehicle as a motor vehicle has put the vehicle in motion, or in a position posing a significant risk of causing a collision, such a person continues to operate it until the vehicle is returned to a position posing no such risk.”[ii]

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If you’ve used medical marijuana in Michigan, drive your car, and are stopped by the police, you can be charged with OWI or “operating while intoxicated.”  This is because Michigan’s drunk driving statute, found at Michigan Compiled Laws 257.625, indicates in part as follows:

As used in this section, “operating while intoxicated” means any of the following:

(a) The person is under the influence of alcoholic liquor, a controlled substance, or other intoxicating substance or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance.

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