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While President Bidens Investment and Infrastructure and Jobs Act (IIJA) does require automakers to incorporate advanced impairment detection technology, and sets a timeline for doing so, it is soley up to the Secretary of Transportation to define what the specific technology solution will be. The only guideline in the IIJA is that the technology be “advanced” and “passive” and that it either measure driver impairment through driver performance, measure driver intoxication by analyzing the driver’s blood alcohol level, or both.

MADD Has Already Made Suggestions

MADD was instrumental in the drafting and passage of this legislation, and have indicated that such AIDP will:

On November 15, 2021, President Biden signed into law the bipartisan Investment Infrastructure and Jobs Act (IIJA). This new law contains a provision requiring that all passenger vehicles eventually be equipped with technology that will stop drunk drivers. New cars may start utilizing such technology immediately, but the law won’t require this advanced impaired driving technology any sooner than 2 years from now, though it’s likely to take far longer.

What is the Timeline for Requiring Advanced Impairment Detection Technology?

As previously indicated in our previous article entitled Infrastructure Bill to Combat Drunk Driving by Requiring Alcohol Monitoring Technology the new law does not, with any degree of specificity, indicate what technologies are to be utilized for this purpose.  Instead, the law sets forth a timeline for the Secretary of Transportation to write the specific motor vehicle safety standard. Section 24220(c) indicates that not later than 3 years after the date of enactment of the IIJA, the Secretary of Transportation (SOT) shall issue a “final rule” requiring that a motor vehicle safety standard be added to the relevant section of the federal code.

The bipartisan Investment Infrastructure and Jobs Act (IIJA) seeks to combat drunk driving by requiring all new passenger vehicles be equipped with Advanced Alcohol Monitoring Technology. The drive behind this section of the 2702-page IIJA was led by Michigan Congresswoman Debbie Dingell. MADD also played a significant role in the development of this law.

However, until now, their efforts have focused on requiring all first-time drunk driving offenders to use Breath Alcohol Ignition Interlock Devices (BAIID). The IIJA instead focuses on different type of technology and this technology will be required in all passenger vehicles, regardless of whether the driver has ever been charged with drunk driving.

Congresswoman Dingell and MADD’s combined efforts bore fruit on November 15, 2021, when President Joe Biden signed into IIJA into law. Section 24220 of the Act is entitled “Advanced Impaired Driving Technology” (AIDP) and requires that “drunk and impaired driving prevention technology” become standard equipment in all new passenger motor vehicles.

The answer to this question depends on many factors, including the facts of your case, your prior criminal history and the discretion of the judge presiding over your case. While the phrase “innocent until proven guilty” is at the heart of our criminal justice system, it isn’t always on the heart of the Judge making the bond determination. When applied to those charged with sex crimes, Michigan jurisprudence does have limitations, especially when it comes to bond and pretrial release.

Once the prosecutor has made the decision to charge you with a sex crime, which in Michigan is called “criminal sexual conduct,” the first court hearing is called an arraignment.  The Michigan Rules of Criminal Procedure have laid out the factors to be considered and followed at the time of your Arraignment, and generally focus on two main points. The first is the likelihood you will appear in court for all future hearings, and the second is the protection of the public.  Any concerns on either of those factors will increase the financial amount of the bond, and the conditions imposed upon you.

What Happens at the Arraignment on a Charge of Criminal Sexual Conduct?

The number of High BAC Superdrunk OWI and Child Endangerment Cases are on the rise in Michigan. This is due to a variety of factors, including an increase in binge drinking among college educated, divorced or separated males, pandemic isolation and school closures.

One recent study published in Science News[i] suggests that between 2015 and 2019 binge drinking among men 65 and older increased by about 20% from 12.8 percent to 15.7 percent. The study suggests that binge drinking did not increase for older women during the same period. College educated women and separated or divorced men were both also at higher risk of binge drinking. The use of marijuana or tobacco increased risk of binge drinking for both men and woman alike. The study had a sample size of 18.794.

Another study, this one published by Journal of Environmental Research and Public Health, supports the proposition that the pandemic has had a great influence on the recently higher prevalence of both Super Drunk Driving and Child Endangerment OWI.

New research regarding child and adolescent sex practices shows that more kids than ever are sending and receiving sexually suggestive text messages, including nude photos. Some of these photos may be considered child pornography. Another study shows that sharing of child sexually abusive material (CSAM) is also on the rise.

When children send sexually suggestive photos of themselves to others, it’s often done consensually. However, these pictures can end up being shared many times over and fall into the wrong hands. Regarding CSAM, predatory producers of child porn and CSAM have become much more active online, finding new ways to groom and trap their victims to obtain CSAM from them.

Why is there an increase in sexting and CSAM?

The black letter law in Michigan suggests that juries have the power but not the right to exercise jury nullification.[i] Nevertheless, the practice of law is all shades of gray, and the arguments made by lawyers are often in the penumbras of black letter law.

For example, some Michigan cases have indicated that nullification may be argued where nullification is a recognized legal defense. Because a trial judge may exclude a defense attorney from presenting to the jury evidence supporting a defense that has not been recognized by the legislature[ii], the judge can preclude a lawyer from arguing for nullification.

This does not mean that the power of nullification can be taken away from the jury, and a judge cannot explicitly tell a jury that they are precluded from exercising jury nullification. In one Michigan case where a judge told the jury that jury nullification was inconsistent with the recognized power of the jury, the verdict of guilty was reversed.[iii]  In support of their reversal, the court indicate that:

In the United States juries are not informed by the judge of their right to nullification because the case law addressing jury nullification remains oblique. It is therefore commonly said that in the United States juries are empaneled to resolve issues of fact, but when it comes to nullification, juries have the right but not the power to judge the law. Consequently, a judge will never directly instruct a jury than they judge the law.  The reverse is also true; a judge will not instruct a jury that they may not judge the law. In a criminal case, the litigants are also precluded from advising the jury of their right to nullification.

When looking at the history of nullification in the Untied States, it is clear that while the breadth of jury nullification in our criminal justice system has ebbed and flowed it has never entirely gone away. Today a jury sitting on a criminal case may engage in nullification. Since nullification remains a part of our criminal justice system, the question that obtains is this; how much influence can, or should, the judiciary have in limiting or otherwise influencing the jury’s right to nullify?  Said differently, as “keepers of the law,” what role do judges have in explaining or refuting nullification?

In looking at the question of whether or not jurors should be informed of their right to nullify, Irwin A. Horowitz has this to say:

In the United States, we obtained much of our initial original jurisprudence from England. This “precedence” is called the common law. Because the English common law had such an impact on the development of our law it makes perfect sense that the English common law tradition of jury nullification directly influenced early American criminal trials. In the colonies, both the right to a jury trial, and the jury’s associated nullification powers, were viewed as vital to ensuring liberty.

The Founders, all of whom had the personal experience of living under an oppressive and capricious government, also believed in the importance of the right to nullification, particularly when viewed through the lens of liberty and freedom from tyranny. As one historian observed, “The writings of Jefferson, John Adams, Alexander Hamilton, and other founders–Federalists and Anti-federalists alike–all support the belief in a jury responsible for deciding both fact and law.” Similarly, jury trials and nullification were respected throughout the early days of U.S. history.[i]

Nevertheless, as the common law developed the question remained about if and how nullification would be incorporated into our system of governance. While the right to a jury trial is mentioned repeatedly throughout our founding documents, the word “nullification” is absent from all of them. Consequently, the United States Supreme Court had to grapple with this issue, and attempt to resolve it.  However, their precedent regarding nullification has never entirely resolved the role of the jury in a criminal case or even the propriety of nullification.

As previously explained, jury nullification occurs when a jury fails to follow the instructions of the court and instead returns a verdict contrary to those instructions. UN Appeals judge and constitutional law expert Geoffrey Robertson suggests that an independent jury can disregard the strict letter of the law set forth in these instructions and return their verdict of acquittal due to feelings of “sympathy or humanity” or simply based on common sense.

Jury instructions themselves can be part of the problem. Jury instructions are summations of the law and reflect the litigants’ best efforts to distill often complex laws in chunks that can be understood and applied by the jurors when evaluating the facts presented to them at trial.

However, when it comes to criminal cases and the tacit but often necessary application of constitutional law principals, these “chunked summations” of the law are rife with potential pitfalls. According to Duke University School of Law Professor Brandon Garrett, the use of constitutional rights in jury instructions—and in evidentiary practice more generally—is a subject that deserves far more attention in the bar and in scholarship.[i]

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