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According to the Michigan Court of Appeals, Facebook postings are admissible as evidence against a person accused of a crime in Michigan.  In a recent case involving assault with intent to commit murder, felony firearm and other charges, the prosecutor found and presented to the jury evidence obtained from the defendant’s Facebook page.  The defendant objected, and the Court of Appeals opinion says this:

Defendant contends that the trial court abused its discretion when it admitted a Facebook posting into evidence without sufficient foundation. At issue is a page purportedly from defendant’s Facebook page on which is a picture of McKinley, the initials “RIP,” and a post reading, “Shuldd I let em kill me or turn myself ndd. I’m facing life nd da gtt dam pin…rest -6- in peace Ne-Ne, catch me nd traffic.”

The defendant also objected to admission of gang-related photographs also obtained from Facebook.

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The Michigan Court of Appeals has recently held that a driver’s admission to drinking too much and trying to drive from the bar were admissible against her to establish the element of operation.

As prosecutors often say in their opening/closing arguments, a crime is made up of parts called elements. In order to prove a case, a prosecutor must be able to prove each element of the crime beyond a reasonable doubt. In a drunk driving case, one of those necessary elements is operation. Usually, an element can’t be proved just by the defendant’s admission. This is called the “corpus delicti rule.”

According to David Moritz, an assistant professor at Wayne State University Law School: the common law corpus delicti rule prohibits the introduction of an extrajudicial confession in a criminal case unless the prosecution introduces independent evidence of the “corpus delicti.” That is, the prosecution must introduce some evidence independent of the confession to establish that the crime described in the confession actually occurred.

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Criminal defense lawyers who represent Michigan’s health care professionals, including doctors, dentists and nurses, are often unaware that their clients have a duty to self-report a criminal conviction to the Michigan Department of Licensing and Regulatory Affairs (LARA).  According to Aaron J. Kemp of the Chapman Law Group “the resulting economic and professional consequences from a failure to self-report such a criminal conviction can be devastating.”

In his white paper entitled “Criminal Conviction Self-Reporting for Michigan Licensed Health Care Professionals,” doctors, dentists, nurses and all other licensed health care professionals must report their criminal convictions within 30 days of the date of the conviction.  A failure to report a criminal conviction can have serious consequences, including reprimand, denial of licensure, limitation, probation, or fine.  The fine can be anywhere from $250.00 – $5,000.00.

In a criminal case a conviction usually occurs when either a person accused of a crime pleads guilty or is found guilty by a judge or jury at trial.  This is the conviction date even if sentencing takes place days, weeks or months later; the clock starts ticking as soon as the court acknowledges the conviction in a written order or judgement.

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The Barone Defense Firm recently handled a drunk driving case in Bloomfield Hills 48th District Court.  The case involved a person who was stopped for weaving and running a red light.  According to the police officer, this driver failed the field sobriety tests, and was arrested.  He later had his blood drawn, and the result of the blood test suggested a bodily alcohol level of .136 grams of alcohol per 100 milliliters of blood.  The driver had been arrested for DUI previously, so this was his second offense.

This second offense drunk driving was prosecuted by the Oakland County Prosecuting Attorney’s office.  As is typical for this prosecutor, no deals were offered so the matter was set for trial.  A few days before the trial date the prosecutor filed a “Daubert” motion, arguing that the defendant’s expert was unqualified and should not be able to offer his opinion at trial that the blood test result was flawed, inaccurate and unreliable.  The motion was scheduled for the first day of trial.

On the first day of trial, the assistant prosecutor handling the case indicated to the judge that she had no witnesses and could not proceed.  Accordingly, she asked the judge to dismiss the case.  We had no objection to the dismissal, so long as it was “with prejudice.”  The assistant prosecutor asked that it be without prejudice.  In this context, legal “prejudice” essentially means “final determination.”  Said differently, we were arguing that jeopardy should attach so that the case could not be tried at a later date.  Jeopardy arises out of the Fifth Amendment to the Constitution, which indicates “[N]or shall any person be subject for the same offense to be twice put in jeopardy.”

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Michigan DUI lawyer Patrick T. Barone was recently featured in an article appearing on page 5 of the September 2016 Michigan Edition of Super Lawyers.  This edition of the Super Lawyer’s magazine was sent to all of Michigan’s more than 33,000 lawyers and judges.  For the general public searching for a Super Lawyer, there is also a digital version on line, and even an app that includes the featured list that is searchable by location.

Super Lawyers is a rating service, and each year Super Lawyer’s Magazine uses their “patented selection process” to find and report on Michigan’s outstanding lawyers and rising stars.  The selected lawyers are then compiled, and the results of their research are published in a Super Lawyer’s Magazine.

In addition to the lawyer listings, the Editors of Super Lawyers Magazine also looks to write about lawyers on their Super Lawyer list who have, for example, have handled landmark cases, have innovated their firm or practice in some way or have compelling personal stories about their lives/careers. Specifically, the September Super Lawyer’s article addresses Mr. Barone’s journey toward psychodrama certification as well as his incorporation and trial use of action methods borrowed from psychodrama.

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Many people don’t realize that a drunk driving picked up on their “own time” can sometimes affect their jobs. This is particularly true for nearly anyone who carries a professional license, be it a pilot license, medical license, insurance license, real estate license or even a cosmetology license. In almost every instance the license holder must report the drunk driving arrest or conviction to the licensing authority, usually the Michigan Licensing Authority and Regulatory Affairs.  Pilots who pick up a drunk driving have very stringent reporting requirements, and a failure to report in a timely manner can be devastating.  With pilots however, it’s more of a federal issue rather than a state issue.

For the past several decades, the Federal Aviation Administration (FAA) had required pilots, that is anyone who holds an FAA license, to report each motor vehicle action (MVA).  This FAA reporting requirement includes even a first drunk driving arrest.  Because pilot licenses generally don’t expire, this reporting requirement holds true for both active and non-active pilots.

The FAA sets forth the following definitions of a MVA, all of which must be reported within 60 days:

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Starting in the fall of 2016, Michigan police will have a new tool to help them fight intoxicated driving.  This new tool comes in the form of a saliva test for drugs, and it will be used in conjunction with a Drug Recognition Expert, or DRE, to help Michigan police arrest for drivers for DUI. Additionally, Michigan has expanded its definition of DRE so as to allow more departments to begin using salvia testing for marijuana.

These tools are important because in Michigan you can be arrested for DUI because you are under the influence of alcohol or under the influence of drugs.  If the DUI involves either drugs or alcohol, the crime is the same, and the punishment is the same.  Michigan’s Governor recently signed a law that creates a pilot program to explore the expanded use of saliva tests for drugs.  These saliva tests will be used by Michigan police in certain DUI traffic stops.

Under this pilot program, Michigan State Police will select five counties for participation.  However, in order to participate, the county must meet certain requirements. For example, the statute corresponding to PA 243, i.e., MCL 257.625t requires that the subject county have at least one certified Drug Recognition Expert (DRE) on staff at any level of agency within the county.[i]

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Michigan drivers arrested or convicted of drunk driving might be ordered to have a Breath Alcohol Ignition Interlock Device (BAIID) installed on their car. Some judges will require a BAIID to be installed as a condition of bond.  Other times, a BAIID can be a condition of probation. With a high BAC case (test result at or above .17) a BAIID will be a condition of obtaining a license.  Repeat offenders suffering from license revocation will be required to have a BAIID installed as a condition of later obtaining driving privileges. Sobriety courts also use BAIIDs as part of their programs.

In each of these instances, a positive alcohol test on the BAIID will result in serious consequences, ranging anywhere from jail time to additional license sanctions.  A frequent question then is how does one avoid a false positive.  That is, if you have a BAIID on your car, how can you avoid having a false positive reported to the court?

The best and most obvious way to avoid a “false” positive is to not drink. Sometimes a person who is ordered to stop using alcohol, but who knows when they will be tested, tries to outsmart the system by drinking only a little and hoping that when they are testing, the alcohol will have left their body.  This idea is not only wrong; it’s doomed to fail.

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In history there’s an adage that what’s old is new again.  This certainly seems to be the case with Michigan’s Medical Marijuana act which allows a caregiver to legally sell marijuana to a patient bearing a valid prescription.  Otherwise, it is illegal to sell, use or possess marijuana.

During prohibition it was similarly illegal to sell, use or possess alcohol.  One exception to this prohibition was the alcohol prescription.  According to the Smithsonian Institution’s web site, during prohibition your doctor could write you a prescription for booze.  This would allow “patients” to purchase a pint of booze every ten days!

History buffs will be interested to know that during prohibition a particularly creative lawyer by the name of George Remus took full advantage of this “loophole.”  First, he used his contacts in Washington to pass laws that he could take advantage of to build a mostly legal business empire.  To do this, he purchased all the standing liquor, meaning that already produced by distillers around the country.  He used his connections to get “withdraw permits” and he arranged to have this withdrawn booze sold to drug companies that he also owned.  This booze would then be sold to pharmacies that would fill the alcohol prescriptions.  In this way Remus became both buyer and seller, thereby assuring the uninterrupted availability of alcohol to anyone who wanted it.  To learn more, watch Ken Burns documentary about Prohibition.

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Nearly all drunk driving arrests in Michigan consist of four parts; (1) some sort of bad driving leading to a traffic stop, (2) roadside or “field sobriety tests,” (3) roadside breath test for alcohol, or saliva test for drugs, and; (4) second breath or blood test to confirm roadside test.

Regarding roadside field sobriety testing, Michigan law has been moving toward requiring that field sobriety tests be administered according to the standardized protocol.  For example, prior Michigan cases have indicated that the Horizontal Gaze Nystagmus (HGN) must be administered properly and that the officer administering the test must be qualified to perform it. (Berger). Another Michigan drunk driving case indicates that an officer’s incorrect administration of the HGN test will lead to an inaccurate interpretation of the results. (Mullen).  So far, however, no published Michigan drunk driving case has defined “standardized field sobriety test” or required either strict or substantial compliance.

A newly amended Michigan drunk driving law changes that, at least temporarily.  This new law is part of the broader package of laws creating a pilot program pilot that aims to test the use of saliva testing to screen potential drugged drivers on the road side.[i]

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