This recently written article on Michigan Sex Assault Prevention Bills in the Detroit Free Press that talks about the Bills that was passed by the Michigan Senate. However, the bills — SB 871-880 — now move to the House of Representatives for consideration.
The Michigan State Police roadside drug testing has announced five counties where the testing pilot program will begin on Nov. 8. You can read more about it here: http://bit.ly/2z0NkDt
You do not have to submit to a saliva sample. It is a civil infraction. Michigan DREs are junk science.
Other than marijuana (see below for medical marijuana), prescription drug users MAY have a defense for operating with the presence of a controlled substance. There is a defense of therapeutic levels. That is the sample has a level consistent with that as prescribed by the doctor
TO MY MEDICAL MARIJUANA CLIENTS, I want to remind you that you are still permitted to operate a vehicle after you’ve consumed your medicine, provided YOU ARE A CARDHOLDER. The Michigan Supreme Court has ruled that the government must prove actual impairment for these class of drivers. A difficult task being there is no quantified level for THC also known as the therapeutic level which is considered acceptable. Patient a needs a different level of THC than Patient B. Along with many studies showing that THC does not impair driving.
When hiring a lawyer, for these cases, make sure they are plugged into the Defenses.
Navigating the Pitfalls of Domestic Assault CasesAt the onset of this article, the Law Offices of Michael L. Steinberg, and Mike Steinberg personally do not condone violence in any sort. If your relationship has gotten to the point were there it has gravitated toward frequent angry outburst, it is time for the participants to individually and as a partnership, to seek professional intervention.
Having said the above, it is the goal of this article to present the difficult evidentiary issues that come up in these type of cases. I am attaching an Outline of a presentation that I presented to the Criminal Defense Attorneys of Michigan for their Spring 2016 conference.
In summarizing the above link, issues that are presented in these type of cases are what is an excited utterance (for the layperson one made spontaneously without time to contemplate them), the right of confrontation and what we can do if the witness does not show.
A basic tenet of these cases is that the person was in a dating or was in a dating situation, lived in the same household or had a child in common. One of the pitfalls that I see lawyers doing is assuming that there was a dating situation. Many times the arresting officer just assumes there was a relationship simply because they were together at the time in question. That is a very broad assumption that must be attacked. Also in cases where the witness chooses not to come to court, how can you establish the relationship.
The excited utterance exception is only applicable IF the complaining witness is available. That means he or she is coming to court and is willing to testify. As I have presented in the attached outline above, there are great limitations as to what excitement really entails. Simply because someone reports information in an excited or hysterical matter does not mean it is an excited utterance. I have seen many lawyers gloss right past this very important aspect. If one has time to contemplate or sort out what they are saying, even if presented with anxiety or an elevated voice, it loses the aspect of excitement as defined by the law.
As a practical matter, these statements are very suspect by there nature. Falls under the theme of People say the most damning things simply because they are very tense when reporting. A good lawyer, such as Mike Steinberg, handles that adeptly during jury selection.
Another avenue that the government will try to use medical records to establish the detail of the case. While it may be admissible to say X sustained injury because Y struck X, the Michigan Supreme Court has held that extra detail is not admissible for the purpose of medical treatment. Mike Steinberg always recommends that we agree for the production of medical records when the prosecution seeks their admission or pursuant to case law and court rule pursue them ourselves. Why? They are chock full of ammo for cross examination (1) the statement made to medical professionals may be different than in the field. Had time to think. You can impeach with any evidence. (2) The blessed tox report. Complainant has a BAC of .21. Even though blood drawn for hospital treatment is not overly accurate (they do not want to kill you when they treat you with pain killers) it is still indicia of intoxication. Same argument for drugs on board.
(3) Subpoena the chart notes. Was Complainant combative? Did he/she appear non responsive (4) Medical history prescribed drugs, disorders both physical and mental, etc.
Sadly many judges get it wrong when a complaining witness does not come to court to testify for a trial. Perhaps grafting their own belief that failure to appear is part of some domestic violence syndrome. Mike Steinberg is of the learned opinion, as demonstrated in the attached goggle drive document, that these courts get it wrong. Time and time again, the 6th Amendment guarantee of confrontation of witnesses and evidence against the accused, has been upheld by the United States Supreme Court in domestic violence cases. Many of cases cited in the attached in the above Google drive document, were domestic violence cases. In assessing the Confrontation, we have to determine whether the proposed evidence is testimonial or non-testimonial. Clearly reporting that Johnny hit me in the head may be non-testimonial because it is information to get the police to come to the house. But if the 911 operator goes into greater detail of the event, it then becomes testimonial information and thus excluded under the Confrontation Clause. Asking for information in a question and answer format is investigatory and thus testimonial
In the material attached above, some courts have wrongfully said that when the accused leaves the residence but is still at large, that there is an Ongoing Emergency, a noted exception to confrontation. A Michigan Supreme Court case was reviewed by the United States Supreme Court in Michigan v Bryant-See google document attached. In Bryant, the Court found that purely private disputes fall under this exception and simply because someone is at large does not invoke it either.
What do you do if somehow the court lets evidence in (the complainant’s statements) and there is no witness. Well, there is a nice rule of evidence called MRE 806. It allows for any evidence that would have been admissible had the declarant testified. So those medical records spoken about earlier, come into play. If the complainant was under the influence, had been combative, had given a different version of the events, etc ALL come in to discredit.
There are statutes that permit the government to bring in other acts of domestic violence. For example, MCL 768.27b allows the same. But it has limitations such as not going back more than 10 years. The Supreme Court in People v Watkins, 491 Mich 450; 818 NW2d 296 (2012), listed several considerations which may lead a court to exclude evidence proposed under MCL 768.27a on grounds that it was inadmissible under MRE 403. The non-exhaustive list, which may be illustrative for analysis of MCL 768.27b evidence, included: “(1) the dissimilarity between the other acts and the charged crime, (2) the temporal proximityof the other acts to the charged crime, (3) the infrequency of the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the evidence supporting the occurrence of the other acts, and (6) the lack of need for evidence beyond the complainant’s and the defendant’s testimony.” Id. at 487-88. So one of the significant holdings is in assessing the proposed evidence, the trial court must assess the availability of evidence in the current case before admitting evidence of other cases. Otherwise, undue prejudice would occur.
The other section is MCL 768.27c. That statute permits the use of narrative statements in a domestic violence statement. Several appellate courts have ruled that Section 27c is subject to the Confrontation Clause. That means the statements do not come in unless the declarant is available. Last, there are limitations due to bias and motive of the declarant along with statements being consistent with the evidence acquired by the police.
As you can see, hiring a lawyer, such as Mike Steinberg is essential in these cases. One who knows the intricate evidentiary issues presented and is not willing to just lay down. The implications of these convictions are horrendous. While a first offense, can be diverted under MCL 786.4a, it still can be used for charging purposes for future domestic violence offenses.
Hopefully, this comprehensive guide has been helpful.
Sadly, the US Supreme Court recently ruled, in Utah v Strieff, that a police officer could stop a citizen to ascertain whether or not, they have a warrant for their arrest. Previously, a police officer had to have knowledge of the warrant.
Based on this and other rulings, one may ask, in a lawyer’s opinion, how they should handle police encounters. I offer the following:
- Always have your identification documents, within reach. If you are in a car, know where the registration and proof of insurance is at all time. Attempt to have those documents available before the police officer makes contact with you. If the documents are in the glove box or console and the police officer is at the vehicle, inform he or she in an audible tone that you will be reaching for the documents.
- Be cordial to the police officer. If you are initially angry, or have asked tersely while you were stopped, apologize. Cordial demeanor can go a far war. Just today, I got several traffic misdemeanors dismissed because my client was polite to the police.
- Answer questions only in reference to the encounter. Volunteering information will only lead to further investigation.
- Avoid furtive gestures. While a police encounter may be nerve racking or anxious, gestures (fidgeting fumbling, etc) will invite a search of you or your vehicle.
- Please note that it is lawful for the police to order you out of a vehicle and pat you down for officer safety. It is also lawful for them to pat you down during an investigatory stop as described above. Be aware that the plain feel doctrine is established law Minnesota v Dickerson and People v Champion (MI Sup Ct). That means if a cop, by palpating a conceal item knows what it is, he can remove it from your pocket.
- Obey all lawful orders of the officer. Example keep your hands out in the open. Get down on the ground. Give me your documents. DEMANDING CONSENT TO SEARCH IS NOT A LAWFUL ORDER. Demanding an answer to a question that might incriminate you (do you have any drugs on you) is not a lawful order.
- While it is legal to resist an unlawful arrest, failure to obey the lawful order of a police officer can result in a felony charge of resisting and obstruction of a police officer.