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OWI MANUAL
JANUARY 2014
Prepared by:
Kenneth Stecker
Traffic Safety Resource Prosecutor
Prosecuting Attorneys Association of Michigan
This material was developed through a project
funded by the Michigan Office of Highway Safety Planning
and the National Highway Traffic Safety Administration.
T ABLE OF C ONTENTS Acknowledgements ................................................................................... vi Chapter 1: Introduction .............................................................................. 1 Chapter 2: The Stop.................................................................................... 3 Basis of Validity: Reasonableness ............................................................ 3 Basis of Reasonableness: Particularized Suspicion ................................... 3 Officer Preparation.................................................................................. 4 Citizen Informants (BOL Calls) ............................................................... 4 Police Contact Not Necessarily a Stop ..................................................... 7 Defense Claim: Not a Traffic Infraction................................................... 9 Defense Claim: Pretext Stop ...................................................................10 Summary ...............................................................................................11 Chapter 3: Initial Investigation...................................................................13 Detecting Impairment ............................................................................13 Horizontal Gaze Nystagmus (HGN) Test ...............................................15 Preliminary Breath Test (PBT)................................................................17 Defendants’ Inculpatory Statements .......................................................18 PBTs are Not Self-Incriminatory .........................................................18 Traffic Stops are Not Custodial ...........................................................18 Interrogations Need Not Stop for Ambiguous Statements ....................19 Voluntariness of Statements ................................................................20 Potential Danger to Officer Allows Temporary Detention....................21 Warrantless Arrests ................................................................................21 Vehicle Searches ....................................................................................22 Defense Claim: Lack of Probable Cause for Arrest..................................22 Administration of PBT ...........................................................................23 Chapter 4: Breath and Blood Evidence.......................................................26 Admissibility of the Preliminary Breath Test Results ...............................26 Implied Consent Law .............................................................................27 Admissibility of the Chemical Test Results .............................................31 Issues Surrounding the Breath Test .........................................................33 Right to Counsel Before a Breath Test .................................................33 ii
Defendant’s Refusal to Submit to a Breathalyzer Test ..........................36 Administrative Rules...........................................................................37 Equipment Accuracy and Maintenance ...............................................40 Issues Surrounding Blood Tests ..............................................................42 Search Warrants for Blood ..................................................................42 Blood Taken for Purposes of Medical Treatment .................................45 Warrantless Arrest Provisions .............................................................47 Operating Under the Influence of Drugs (OUID) ....................................48 Chapter 5: The Elements ...........................................................................51 Chapter 6: Charging the Defendant............................................................55 Blood Alcohol Test Results ....................................................................57 Repeat Offenders....................................................................................58 Chapter 7: Pre-Trial Investigation and Preparation.....................................61 Witness and Pretrial Preparation ............................................................61 Discovery...............................................................................................66 Discovery in Felony Cases ..................................................................67 Discovery in Misdemeanor Cases........................................................71 Disclosing Brady Material...................................................................71 Rules and Statutes that Affect Discovery .............................................73 MCL 767.94a......................................................................................75 Privilege and Discovery.......................................................................76 Electronic Discovery ...........................................................................77 The Freedom of Information Act ........................................................80 Reciprocal Discovery ..........................................................................81 Practical Concerns ..............................................................................82 Chapter 8: Pre-Trial Motions and Hearings................................................87 Chapter 9: The Trial ..................................................................................89 Voir Dire................................................................................................89 Sample Questions for Voir Dire...........................................................91 Opening Statement.................................................................................94 Suggestions for Opening Statement .....................................................96 Direct Examination................................................................................97 Witness Preparation............................................................................97 iii
Direct Examination of Police Officer...................................................98 Direct Examination of DataMaster Operators ...................................102 Direct Examination of Blood/Urine Tester .......................................106 Suggestions for Direct Examination ..................................................110 Cross Examination...............................................................................111 Approach Point Cross Examination ..................................................111 Impeachment....................................................................................113 Cross-Examining Defense Expert Witnesses......................................113 Suggestions for Cross Examination ...................................................128 Closing Argument ................................................................................129 Rebuttal ...............................................................................................129 Chapter 10: Sentencing ............................................................................131 Chapter 11: Special Issues........................................................................133 Elements, in General............................................................................133 The defendant was operating a motor vehicle. ...................................133 The defendant was operating a motor vehicle on a highway or other
place open to the public or generally accessible to motor vehicles,
including an area designated for the parking of vehicles. ....................133 The defendant was operating the vehicle in the County of___. ...........133 Elements for OWI................................................................................134 The defendant was under the influence of alcohol while operating the
vehicle. .............................................................................................134 Elements for UBAC .............................................................................136 The defendant operated the motor vehicle with an unlawful bodily
alcohol content (0.08 grams or more per 100 milliliters of blood, per 210
liters of breath, or per 67 milliliters of urine). .....................................136 SFSTs and Drugs .................................................................................138 Defining the Drug .............................................................................139 Controlled Substance Schedules ........................................................139 Case Law Concerning Drugs.............................................................141 Prescription Drugs ............................................................................142 Over-the-Counter Drugs....................................................................142 Per-Se OUID: Use of Schedule I/Cocaine .........................................143 Laboratory Results............................................................................144 iv
Scientific Witnesses...........................................................................146 Proving Impairment..........................................................................147 What is a Drug Recognition Expert...................................................149 What is ARIDE ................................................................................150 Proving Knowledge-Prescription (Licit) Drugs...................................150 Medical Marihuana Law...................................................................150 Chapter 12: Conclusion ...........................................................................153 v
A CKNOWLEDGEMENTS The Prosecuting Attorneys Association of Michigan is pleased to offer the
2013 edition of the OWI MANUAL for use by Michigan Prosecuting
Attorneys.
This manual represents the cumulative effort and cooperation of a number of
professionals who have been involved with OWI laws, litigation, and alcohol
testing. We appreciate their willingness to take time from their busy
schedules in order to contribute to this publication, and in recognition
thereof, we hereby acknowledge the following individuals:
Michael S. Wolsh, Midland County Juvenile Court Referee
Brenda Taylor, Washtenaw County Assistant Prosecuting Attorney
Dr. Felix Adatsi, Michigan State Police Lab Analyst, MSP
Laboratory
Sergeant Perry Curtis, Michigan State Police
Dr. Michele Glinn, Michigan State Police Lab Analyst, MSP
Laboratory
Steven McLaughlin, Kalamazoo Assistant Prosecuting Attorney
Timothy McMorrow, Kent County Assistant Prosecuting Attorney
Diab Rizk, Cass County Assistant Prosecuting Attorney
Thomas Beadle, Wayne County Assistant Prosecuting Attorney
Acknowledgments are especially due to Jonathan Hwang, Megan Irving, and
Samantha Winter, interns for the Cass County Prosecuting Attorney’s Office,
who labored away for over a year on the Manual. Further acknowledgments
are to the Cass County Prosecuting Attorney Victor Fitz for his tremendous
dedication to the project.
Lastly, thank you to Michael Prince, Director of the Michigan Office of
Highway Safety Planning and his staff for their patience and support.
Without their support, this Manual is not possible.
We have attempted to present these materials in a way that will be most
helpful to prosecutors who find themselves involved in an OWI case. We
hope that the manual does justice to this topic.
As always, we welcome your comments and any constructive criticism you
may have concerning this publication.
Thomas M. Robertson
Kenneth Stecker
vi
C HAPTER 1: I NTRODUCTION The OWI (Operating While Intoxicated) statute, MCL 257.625et seq., is a
part of the Motor Vehicle Code. The preamble to the Motor Vehicle Code
reveals the legislature’s intent to regulate “vehicles operated upon the public
highways of this state or any other place open to the general public . . . [and]
to provide for the regulation and use of streets and highways. . . .” In Peoplev
Rogers, 438 Mich 602; 475 NW2d 717 (1991), the Michigan Supreme Court
captured the essence of the OWI statutory scheme when it stated that the
statute is “specifically tailored to address the enormity of the danger posed by
drunk driving, the need to deter offenders and to protect the public, and the
unique problems of repeat offenders.” 1
Drunk driving laws in Michigan are continually evolving to address and
combat the very serious threat to public safety posed by individuals who
undertake to operate a motor vehicle while under the influence of
intoxicating liquor, a controlled substance, intoxicating substances, or a
combination of these substances.
MCL 257.625(1) outlines the crime of operating a motor vehicle while
intoxicated. It provides that:
A person, whether licensed or not, shall not operate a vehicle upon a
highway or other place open to the general public or generally accessible to
motor vehicles, including an area designated for the parking of vehicles,
within this state if the person is operating while intoxicated. 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.
(b)
The person has an alcohol content of 0.08 grams or more per 100
milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or,
beginning October 1, 2018, the person has an alcohol content of 0.10 grams
or more per 100 milliliters of blood, per 210 liters of breath, or per 67
milliliters of urine.
(c)
The person has an alcohol content of 0.17 grams or more per 100
milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.
By providing a penalty for operating with an alcohol content of 0.08 grams or
more per 210 liters of breath, and by simultaneously presuming that a person
is operating under the influence if they have such alcohol content, the
legislature has effectively codified the 2100:1 partition ratio—the foundation
upon which DataMaster instruments are calibrated to calculate blood alcohol
People v Rogers, 438 Michat 621.
1
OWI MANUAL content from the amount of alcohol present in the subject's breath. The
breath instruments are calibrated upon an assumed ratio between blood and
breath of 2100:1. That is, for each molecule in a given volume of breath
there are 2100 molecules in the same volume of the person’s blood.
However, some forensic toxicologists have noted that individual partition
ratios may vary anywhere from 1150:1 to 3500:1. This provided at the very
least a theoretical mathematical challenge to the reliability of a given breath
test. By adding the provision making it unlawful to operate with a breath
alcohol content of 0.08 grams or more per 210 liters of breath and the
corresponding presumption, defense attorneys will no longer be able to
exploit the partition ratio challenge to confound juries in OWI cases.
2
C HAPTER 2: T HE S TOP The focal point of the defense in a pretrial motion is generally whether the
police have complied with one of the statutory provisions for a warrantless
arrest. When the offense was committed in the presence of the officer, the
first step is to determine whether or not the stop of the defendant’s motor
vehicle was valid.
BASIS OF VALIDITY: REASONABLENESS
The defendant may challenge the stop of his or her motor vehicle by the
police officer. The Fourth Amendment of the United States Constitution 2
and the parallel provision in the Michigan Constitution 3 guarantee the right
of people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures. “The Fourth Amendment is not a
guarantee against all searches and seizures, but only against those that are
unreasonable.” 4
Therefore, the touchstone of a reviewing court’s Fourth Amendment analysis
is always “the reasonableness in all the circumstances of the particular
governmental invasion of a citizen's personal security.” 5 The Michigan
Constitution does not impose a higher standard of reasonableness for
searches and seizures than that imposed by the federal constitution. 6
BASIS OF REASONABLENESS: PARTICULARIZED SUSPICION
In order to justify an investigative stop, “the police must have a
particularized suspicion, based on objective observation, that the person
stopped has been, is, or is about to be engaged in criminal wrongdoing.” 7
Whether or not the police conduct violates the Fourth Amendment must be
evaluated in light of the totality of the circumstances with which the police
were confronted. 8
According to the Michigan Supreme Court, the following considerations are
pertinent as to whether the stop of the motor vehicle was constitutionally
valid:
US Const, Am IV.
Const 1963, art 1, § 11.
4
People vShabaz, 424 Mich 42; 378 NW2d 451 (1985); See also United States v Sharpe,
470 US 675, 682; 105 SCt 1568 (1985).
5
Michigan v Long, 463 US 1032, 1051; 103 S Ct 3469 (1983) (quoting Terry v Ohio, 392
US 1, 19; 88 SCt 1868 (1968)).
6
People v Nash, 418 Mich 196, 209; 341 NW2d 439 (1983).
7
People vShabaz, 424 Mich at 59.See alsoBrown v Texas, 443 U.S. 47, 51; 99 S. Ct.
2637 (1979).
8
People v Shabaz, 424 Mich at 59.
2
3
OWI MANUAL 1. Reasonableness is the test that is to be applied for both the stop of,
and the search of, moving motor vehicles.
2. Said reasonableness will be determined from the facts and
circumstances of each case.
3. Fewer foundation facts are necessary to support a finding of
reasonableness when moving vehicles are involved, than if a house or
a home were involved.
4. A stop of a motor vehicle for investigatory purposes may be based
upon fewer facts than those necessary to support a finding of
reasonableness where both a stop and search is conducted by the
police. 9
OFFICER PREPARATION
When the officer has stopped the defendant on suspicion of drunk driving,
the officer is your best resource.
Practice Tip:Examine the officer’s reasons for the stop in extreme detail. The law on this matter does not change – whether the stop was valid is based
on the totality of circumstances. Therefore, the best way to combat a
challenge to an investigatory stop is to go over the reasons for the stop with
the officer in detail. Do not just skim over the officer’s experiences with
encountering drunk drivers. Go into his training more than you might for a
stop based on a traffic infraction. Officers are taught what to look for in
detecting drunk drivers, including factors to look for as stated by the National
Highway Traffic Safety Administration (NHTSA).
Moreover, the officer’s road experience is key. While a layperson might not
appreciate the meaning of a vehicle gently drifting between the lanes of a
highway, a trained road officer does and a stop for observed “bad driving” is
appropriate. 10
CITIZEN INFORMANTS (BOL CALLS)
It should be noted that reasonable cause necessary to stop a motor vehicle
need not arise from a police officer’s personal observation, but also may be
9
People v Whalen,390Mich 672, 682; 213 NW2d 116 (1973).
People v Christie, 206 Mich App at 309 (finding valid a stop based upon officer’s
observations that the defendant’s vehicle swerved in its lane, drove on the lane
markers, and had its turn signal activated too soon for the turn executed); Gaddis v
Redford Township, 364 F3d 763 (CA 6 2004) (upholding stop based on weaving within
own lane such that the vehicle drifted to the left touching the dividing line twice and
the defendant was observed leaning to the right).
10
4
CHAPTER 2: THE STOP supplied by a citizen-informant if the information carries enough indicia of
reliability to provide the officer with a reasonable suspicion that criminal
activity is afoot. 11 The court will examine three factors to determine whether
the informant’s tip carried enough indicia of reliability to supply the basis for
reasonable cause to stop the defendant’s vehicle: “(1) the reliability of the
informant, (2) the nature of the information given to the police, and (3) the
reasonableness of the suspicion in light of these factors.” 12
There is case law from other jurisdictions that uphold stops based on “Be On
the Lookout” (BOL) calls for drunk drivers, including based on anonymous
tips. See, e.g., Goodlataw v State, 847 P2d 589 (Alaska Ct App 1993)
(upholding investigatory stop of motorist even though the officer did not
observe bad driving because the stop was based on a phone call from an
anonymous informant stating that the suspect-motorist was intoxicated and
describing the vehicle and the location of the vehicle); State vKissner, 390
NW2d 58 (SD 1986) (upholding stop of suspected drunk driver even though
officer did not see bad driving because the report was from a private citizen
with detailed information about the make, model, and license plate of the
vehicle).
Several Michigan cases provide guidelines for how to deal with a BOL stop:
In People v Horton, 283 Mich App 105; 767 NW2d 672 (2009), police officers
were flagged down by a man pumping gas at a gas station in the early hours
of the morning. The man informed the officers that a black male driving a
burgundy Chevrolet Caprice was at the gas pumps at another gas station at
Grand River and Wyoming, approximately a mile away, and was waving an
Uzi type weapon with a long clip. The tipster reported that the man was
approximately 30 years old and appeared nervous and upset. The tipster
refused to provide his name.
Less than five minutes after speaking to the tipster, officers arrived at the gas
station at Grand River and Wyoming, where they observed a burgundy
Chevrolet Caprice parked near the pumps. The defendant was seated in the
driver’s seat. The officers pulled behind the vehicle, activated their
emergency lights and then ordered defendant out of the vehicle. As the
defendant stepped out of his vehicle, one of the officers observed a Glock
semi-automatic pistol whose extended magazine made it resemble an Uzitype weapon on the seat where defendant had been sitting. The defendant
was arrested and charged. He argued on appeal that the tip was not
sufficiently reliable to justify a Terry stop.
Adams v Williams, 407 US 143, 147; 92 SCt 1921 (1978).
People v Estabrooks, 175 Mich App 532, 536; 438 NW2d 327 (1989) (citing People v
Tooks,403Mich 568, 577; 271 NW2d 503 (1978)). See alsoPeople v Faucett, 442 Mich
153; 499 NW2d 764 (1993).
11
12
5
OWI MANUAL The Court held that “The totality of the circumstances provided reasonable
suspicion for the police to briefly detain the defendant in this case. The
tipster indicated that he had personally observed an individual waving an uzitype gun at a specific location approximately a mile away and had just left
that location. He described the make, model, and color of the suspect’s
vehicle.
The descriptive information was detailed, and the police
corroborated it in less than five minutes.
Information provided to law enforcement officers by concerned citizens who
have personally observed suspicious activities is entitled to a finding of
reliability when the information is sufficiently detailed and is corroborated
within a reasonable period of time by the officers’ own observations.”
In People v Barbarich,291 Mich App 468 (2011), the Court of Appeals decide
what amount of information supplied by an in-person unnamed citizen
informantwas sufficient to justify an investigative stop of a moving vehicle.
The only witness to testify in Barbarichwas Michigan State Trooper
Christopher Bommarito, who stopped defendant’s vehicle and issued
defendant the citation. Immediately after exiting the parking lot, a red pickup
truck passed Bommarito’s vehicle, heading northbound on Dix Road.
Another vehicle, defendant’s, was traveling in front of the red pickup. As
Bommarito passed the red pickup, the woman driver of that vehicle made eye
contact with Bommarito, pointed directly to defendant’s vehicle in front of
her, and mouthed the words, “Almost hit me.” Bommarito immediately
made a u-turn, turned on his emergency lights and sirens, and followed
defendant’s vehicle into Malarkey’s parking lot. Bommarito approached
defendant’s vehicle and it was discovered that defendant was intoxicated.
The defendant was issued a citation for OWI.
During the evidentiary hearing, Bommarito admitted that he made no
attempts to speak to the woman in the red pickup before stopping defendant
and that he did not personally observe defendant driving in a manner that
would have justified a stop. In other words, Bommarito stopped defendant’s
vehicle solely on the basis of the woman driver’s action of pointing to
defendant’s vehicle and mouthing the words “Almost hit me.”
The Court of Appeals, relying on People v Horton, 283 Mich App 105, 109;
767 NW2d 672 (2009), stated that the “woman’s action of pointing to the
vehicle in front of her was sufficient to accurately identify defendant’s vehicle
and provided precise and verifiable information to the officer, which also
strongly suggests that the information was reliable. The basis of the
informant’s knowledge was obvious—it can be inferred from her statement,
‘Almost hit me,’ and the action of pointing to the vehicle traveling
immediately in front of her, that defendant’s vehicle had recently almost
come into contact with the woman’s vehicle; her tip was clearly based on
6
CHAPTER 2: THE STOP first-hand and nearly contemporaneous observations, which further
strengthens the veracity of the information.
Therefore, under the totality of the circumstances, the officer had a
reasonable articulable suspicion that justified an investigatory stop of
defendant’s vehicle.”
Practice Tip: When dealing with a BOL stop, remember to draw a distinction between an anonymous tipster and a named tipster. This is important because the United States Supreme Court requires that
anonymous tips be accompanied by sufficient indicia of reliability in order
for an investigatory stop to be appropriate. 13 However, that ruling only
applies to anonymous tips, not to tips provided by named informants. 14
Therefore, even though there is no case-law directly on point in Michigan,
the law suggests that a 911 caller could provide the basis to stop a suspected
drunk driver without requiring the officer to independently view some bad
driving as long as the citizen informant is not anonymous or, if anonymous,
has provided sufficiently detailed information to show that the report is
reliable.
POLICE CONTACT NOT NECESSARILY A STOP
Not every OWI investigation involves a “stop.” In fact, there are many
examples of police-citizen contacts that do not amount to a “stop” because
no seizure has occurred. 15 The police do not need to have a basis to approach
a citizen and ask for voluntary cooperation with an investigation, 16 and the
police need not have a reasonable suspicion to simply request a search. 17
Florida v J.L.,529 US 266; 120 S Ct 1375 (2000).
SeePeople v Burkes,No. 215694, 2000 WL 33405383 (Mich Ct App October 27,
2000) (distinguishing Florida v J.L., 529 US 266, because the informant in Burkes was
not anonymous.)
15
See, e.g.,PeoplevShankle, 227 Mich App at 692 (holding that an investigatory stop
did not occur when an officer approached a person who was seated in the driver’s
seat of a running vehicle parked at the end of a private drive at 1:40a.m.); People v
Taylor, 454 Mich 580; 564 NW2d 24 (1997), overruled on other grounds, (“Officer
Walendzik did not violate the Fourth Amendment by merely approaching the
vehicle in a public place and asking defendants if they were willing to answer some
questions); People v Sinistaj, 184 Mich App 191; 457 NW2d 36 (1990) (“We conclude
that no investigative stop had occurred at the point where Officer Schwartz had
pulled within 20 feet of the suspect car and was leaving his vehicle. Officer
Woznick’s patrol car was behind Schwartz’s. According to Officer Schwartz, he had
not used the overhead lights of his semi-marked car and did not have his gun
drawn.”); but see,People v Freeman, 413 Mich 492; 320 NW2d 878 (1982) (finding
that the defendant was “seized” when the officers asked him to leave his vehicle and
produce identification).
16
People v Shankle, 227 Mich App 690, 693; 577 NW2d 471 (1998).
17
People v Borchard-Ruhland,460Mich 278; 597 NW2d 1 (1999).
13
14
7
OWI MANUAL There is only a seizure implicating Fourth Amendment concerns “when the
officer, by means of physical force or show of authority, has in some way
restrained the liberty of a citizen.” 18 Courts look to the following factors in
helping determine whether a police contact rises to the level of a seizure:
•
threatening presence of several police officers;
•
activation of a police siren; activation of the police flashing lights;
•
a police command to stop; a police display of weapons;
•
some physical touching of the person of the citizen;
•
use of language or tone of voice indicating that compliance with the
officers will be compelled;
•
placement of a police officer or a police vehicle to block a person’s
ability to leave. 19
Practice Tip: Be sure to carefully analyze your case to determine whether there was actually a stop. There are many circumstances in which an officer has contact with a
suspected drunk driver but did not stop him. For example, when a fast-food
employee reports that a suspected drunk driver who is now in the parking lot
eating his meal, it is important to not concede there was a stop, since such
conduct does not constitute a stop.Reasonablebasis for contact with a citizen
which does not amount to a stop is not required; this rule of law will often
aid in a citizen tip case. Sometimes it is not obvious from the police report
whether there was a “stop” of a defendant, such as an approach while a
defendant is in a parking lot or stopped along the highway. When it is not
obvious from the police report, make sure you contact your officer and find
out if your officer blocked the entrance or egress of the defendant; had the red
and blues on; drew his weapon; ordered the defendant to stay in the vehicle;
etc.
People v Mamon, 435 Mich 1, 8; 257 NW2d 623 (1990); United States v Mendenhall,
446 US 544, 553; 100 SCt1870 (1980)(“We adhere to the view that a person is
‘seized’ only when, by means of physical force or a show of authority, his freedom of
movement is restrained. Only when such restraint is imposed is there any
foundation whatever for invoking constitutional safeguards.”).
19
Michigan v Chesternut, 486 US 567, 574–76; 108 S Ct 1975 (1988); People v Daniels,
160 Mich App 614, 618; 408 NW2d 398 (1987) (citing United States v Mendenhall, 446
US 544, 554; 100 S Ct 1870 (1980)).
18
8
CHAPTER 2: THE STOP DEFENSE CLAIM: NOT A TRAFFIC INFRACTION
A defendant may claim: “There was no traffic infraction, so the investigation
was invalid.”
Certainly, an officer can stop a motorist for an actual traffic violation. 20
However, the People do not have to prove an actual violation of the traffic
laws, only that there existed a reasonable suspicion that the traffic laws were
violated. 21 In People v. Hrlic, the Court held that signaling a lane change is
required by the Michigan Vehicle Code. 22 As such, a reasonable suspicion
that a defendant failed to signal properly can constitute a valid stop.
Practice Tip: Do not let the defendant turn your OWI case into a speeding formal hearing. In order to prove a speeding case, we have to comply with the foundational
requirements of People vFerency. 23 However, in an OWI prosecution we do
not have to prove that the defendant was actually speeding at a particular
number of miles per hour over the speed limit. Rather, we need only show
that the stop for speeding was based on reasonable suspicion that the
defendant was speeding. An officer’s lay opinion should be sufficient to
overcome that burden. 24
See, e.g.,People v Haney,192 Mich App 207, 210; 480 NW2d 322 (1991) (holding the
stop was valid because police had probable cause to believe defendant had
committed the traffic offense of turning left without signaling).
21
People v Fisher, 463 Mich 881; 617 NW2d 37 (2000) (“The district court suggested
that suppression was required because defendant did not in fact violate the statute
[regarding dangling objects from the rearview mirror]. The dispositive question,
however, is not whether an actual violation occurred, but whether the officer has
reasonable suspicion that a violation may have occurred.”) (concurring opinion);
People v Davis,250Mich App 357; 645 NW2d 718 (2002) (upholding a stop after an
officer viewed air fresheners hanging from the rearview mirror, the vehicle weaving
in its lane, and the vehicle speeding and in so doing noted “that the record amply
supports the conclusion that defendant may have been in violation of MCL sec.
257.709(1)(c) [the statute dealing with vision obstructions on a vehicle]. (emphasis
added); United States v Fleming, 201 FSupp2d 760 (ED Mich 2002) (finding that
officers had reasonable suspicion to stop a motor vehicle that appeared to have illegal
plates even though the vehicle was lawfully registered in another state).
22
People v Hrlic, 277 Mich App 260; 744 NW2d 221 (2007)
23
People v Ferency, 133 Mich App 526, 542; 351 NW2d 225 (1984) (listing the seven
foundational requirements for admission of speeding results).
24
SeeMRE § 701 (dealing with lay opinion testimony); Richardson v Ryder Truck
Rental, Inc., 213 Mich App 447, 455; 540 NW2d 696 (1995) (upholding admission of
lay opinion testimony when it is rationally based on the witness’s observation and
perception and is helpful to the determination of a fact at issue); People v Zimmerman,
385 Mich 417, 439; 189 NW2d 259 (1971) (Adams, J., separate opinion) (allowing
admission of lay opinions on the speed of vehicle even where the qualifications of the
witness to offer an opinion on speed is based on little more than their own belief in
their ability to judge speed); Mitchell v Steward Oldford& Sons, Inc., 163 Mich App 622,
20
9
OWI MANUAL Furthermore, do not assume you know what the traffic laws are! Some of
them are not very intuitive and are not what we were taught in driver’s
education. For example, there is no traffic law that says drivers must use a
turn signal when changing lanes. Rather, the signaling requirement is
derived from MCL 257.648(1) that states that a motorist must signal when
turning from a direct line. Therefore, you should carefully examine the
applicable traffic statute and tailor your argument appropriately.
Finally, do not let the defense counsel dictate the alleged traffic violation that
was the basis for the stop. For example, there is no traffic statute that
specifically states that a motorist cannot drive with their windshield cracked.
When the officer states that he stopped a vehicle for a cracked windshield,
the defense usually argues that the crack did not obscure the defendant’s
vision and, therefore, the stop was not appropriate under MCL 257.709(1)(c),
which deals with vision obstructions and does not specify windshield cracks.
When the defendant makes this argument, you have to know that driving
with a cracked windshield is an equipment violation. MCL 257.708a
requires that motor vehicles driven on the public highways of Michigan be
equipped with a windshield. MCL 257.715 provides that motor vehicle
equipment must be maintained pursuant to the motor vehicle act and allows
uniformed police officers to stop, on reasonable grounds shown, a motor
vehicle to inspect the equipment for defects. 25 A windshield with a crack in
it, regardless of whether it obscures vision or not, would be defective
equipment on a motor vehicle and an officer would be entitled to stop a
vehicle for that suspected equipment violation.
Note that stopping a car for a defective taillight is proper. Although the
Motor Vehicle Code only requires a vehicle have one tail lamp, if the vehicle
has more than one, both must be working. 26
DEFENSE CLAIM: PRETEXT STOP
A defendant may claim: “The stop was a mere pretext, so the investigation
was invalid.”
The allegation that a stop was a pretext is rarely made anymore because the
case law is so clear. The court must look only to the objective factors known
629–30; 415 NW2d 224 (1987) (holding that opinion testimony by a lay witness as to
the speed of a vehicle is admissible); People v Blondia, 69 Mich App 554, 559; 245
NW2d 130 (1976) (finding error in the admission of evidence from the VASCAR
unit regarding speed of defendant’s vehicle because of lack of foundation, but
declining to reach the issue of whether that error mandated reversal because there
was ample other independent testimony about the speed of the defendant’s vehicle in
the form of an officer’s lay testimony regarding the speed of the defendant’s vehicle).
25
See also MCL 257.683 (prohibiting operators from driving motor vehicles with
equipment that is not in proper condition).
26
People v Williams, 236 Mich App 610;601 NW2d 138 (1999).
10
CHAPTER 2: THE STOP to the police as to whether a stop (or arrest) is valid and not look to the
subjective intentions of the officer. 27
Practice Tip: Remind your officers not to characterize their stops as pretext stops. Many police officers still use the term “pretext stop” when referring to traffic
violation stops made on the basis of a “hunch” that something else is going
on. Although this will have no bearing on whether the stop was valid, it may
have a bearing on the officer’s credibility and the juror’s perception of the
investigation. Therefore, whenever necessary, remind your officers not to
characterize their stops as pretext stops.
SUMMARY
An investigatory stop is valid if based upon “reasonable suspicion of ongoing
criminal activity.” 28 In evaluating whether an investigative stop is valid, the
court should look to the totality of the circumstances but should not conduct
an “overly technical review of a police officer’s common-sense assessment of
the probability that criminal activity is afoot.” 29 The following rules are
applicable when dealing with Fourth Amendment issues involving the stop of
motor vehicles:
(1) Reasonableness is the test that is to be applied for both the stop of, and
the search of moving motor vehicles;
(2) Said reasonableness will be determined from the facts and circumstances
of each case; (3) Fewer foundation facts are necessary to support a finding of
reasonableness when moving vehicles are involved, than if a house or home
were involved; (4) A stop of a motor vehicle for investigatory purposes may
be based upon fewer facts than those necessary to support a finding of
reasonableness where both a stop and a search is conducted by the police.” 30
27
SeeWhren v United States, 517 US 806; 116 SCt 1769 (1996) (holding that an officer’s
subjective intentions are not relevant in determining whether a police contact or stop
was valid because a Fourth Amendment analysis is an objective analysis, not a
subjective analysis); see alsoPeople v Haney, 192 Mich App 207; 480 NW2d 322
(1991).
28
People v Christie, 206 Mich App 304, 308; 520 NW2d 647 (1994).
29
People v Christie, 206 MichAppat 308–09 (citing United States v Cortez, 449 US 411;
101 S Ct 690 (1981)).
30
People v Whalen, 390 Mich 672, 682; 213 NW2d 116 (1973).
11
C HAPTER 3: I NITIAL I NVESTIGATION DETECTING IMPAIRMENT
The National Highway Traffic Safety Administration (NHTSA) has
compiled a list of 24 driving cues that are predictive of impairment. 31 These
break down into four categories:
1. Problems maintaining proper lane position: weaving, crossing lane lines,
swerving, turning with a wide radius, drifting, almost striking
vehicles or other objects.
2. Speed and braking problems: stopping too far, too short or two jerky;
accelerating or decelerating for no apparent reason; varying speed;
unduly slow speed.
3. Vigilance problems: driving in opposing lanes or the wrong way on a
one-way; slow response to traffic signals; stopping in a lane for no
apparent reason; driving without headlights at night; failure to signal
or signal inconsistent with action.
4. Judgment problems: following too closely; improper or unsafe lane
change; illegal or improper turn; driving on other than the designated
roadway; stopping inappropriately in response to officer;
inappropriate or unusual behavior; appearance of impairment.
Observation of any of these carries a probability of 35 – 90%, depending on
the cue, that the driver is intoxicated and/or has a BAC of 0.08 g/dL or
more. The presence of two cues indicates a probability of 50% or more of
intoxication; if one of the cues is weaving, the probability rises to 65%.
Although these numbers were calculated with respect to blood alcohol level,
drivers impaired by other central nervous system depressant drugs commonly
exhibit one or more of them. The experience of the MSP Toxicology
laboratory is that subjects impaired by Soma, Ambien, Valium and Vicodin,
among others, are commonly described as driving "all over the road", and
seen to be swerving, stopping inappropriately or crashing.
31
NHTSA, The Visual Detection of DWI Motorists (http://www.nhtsa.dot.gov).
When an officer pulls a motorist over, the officer may ask the operator to exit
the vehicle and to perform field sobriety tests. 32 However, even if the stop is
made for a reason other than poor driving, a strong odor of alcohol, standing
alone, is sufficient to provide a police officer with a reasonable, articulable,
and particular suspicion that the motorist has consumed intoxicating liquor
that may have affected the motorist’s ability to operate a vehicle. Based on
that reasonable suspicion, the officer may ask a person to perform field
sobriety tests. 33 Generally, the defendant's performance on the field sobriety
tests, coupled with the results of the preliminary breath test, will establish
probable cause to arrest the defendant under arrest for OWI.
Validation of standardized field sobriety testing methods (SFSTs) began in
the 1970s, first in Finland, and then in the United States by Burns and
Moskowitz. 34 Validation took the form of both laboratory experiments and
field studies. The legal standard for OWI in most places at that time was
0.10 g/dL, and determination of the ability of various tests to discriminate
BAC above and below this level was the major aim of the studies. The
researchers wished to determine which tools to recommend to officers to
most reliably aid them in the decision to arrest or not. Most desirable were
tests which could be performed at the roadside, were relatively easy to
administer, and would not give a very high rate of false positives or false
negatives.
Three tests were found to be the most predictive of alcohol-induced
impairment: horizontal gaze nystagmus (HGN), one legged-stand (OLS) and
the walk-and-turn (WAT). The probability of passing each was negatively
correlated with blood alcohol content, and the ability of each test to identify
blood alcohol levels above 0.10 g/dL was found to be 65-77%. An even
better predictor was the results of the combination: using all three tests led
officers to correctly identify 93% of the subjects as either above or below 0.10
g/dL.
By 2002, most states had adopted 0.08 g/dL as the statutory limit.
McKnight et al and others 35 performed validation studies of the SFST battery
at the lower threshold. They concluded that the SFST battery is accurate in
detecting BAC above 0.08 g/dL more than 90% of the time.
HORIZONTAL GAZE NYSTAGMUS (HGN) TEST
One field sobriety test that has generated a lot of controversy is the
Horizontal Gaze Nystagmus (hereinafter “HGN”)Test. In a general sense,
See Berkemer v McCarty, supra.
People v. Rizzo, 243 MichApp 151, 622 NW2d 319 (2000).
34
Burns M, Perceptual and Motor Skills, 97:1187-1199 (2003).
35
McKnight A et al, Accident Analysis and Prevention,34:305-311 (2002); Burns M,
Perceptual and Motor Skills, 97:1187-1199 (2003).
32
33
OWI MANUAL HGNis the "inability of the eyes to maintain visual fixation as they move
from left to right." 36 Medical literature indicates that the consumption of
alcohol is one cause of nystagmus. 37 Thus, officers use the HGN test as one
of three field sobriety tests to acquire the requisite probable cause to arrest the
defendant for OWI.
Unfortunately, alcohol is not the only cause of nystagmus. As Berger
indicates, nystagmus can be "congenital or due to a variety of conditions
affecting the brain . . . palsy of lateral or vertical gaze, disorders of the
vestibular apparatus and brainstem and cerebellar dysfunction". 38 Thus, it is
possible for a defendant to exhibit signs of nystagmus without having
consumed alcohol.
Accordingly, before the decision in Berger came down, defendants attempted
to preclude any testimony from arresting officers regarding HGN on the basis
that it was a scientific test that did not meet the requirements of Davis-Frye.
Arguably, the scientific name of the test prompted those challenges:the
technical name implies that this test is based on scientific principles that
should be subject to exacting scientific scrutiny. The counter argument is
that officers in the field employ the HGN test as a field sobriety test and
consider it as only one of several factors necessary to gain the requisite
probable cause for an arrest. The Berger court explained how the test is
administered:
“In the HGN test, the subject holds their head still and covers or closes one
eye while focusing the other on an object (e.g., a pen) held at eye level. As
the object is gradually moved out of the subject's field of vision toward the
ear, the officer is to look for involuntary jerking of the eyeball while it tracks
the object. The test is repeated with the other eye. The onset ofnystagmus is the
indicator for alcohol intoxication.” 39
Where the officer uses the HGN test and the defendant has signs of
nystagmus, this factor, coupled with the defendant's poor performance on
other field sobriety tests and observation by the officer, gives rise to the
requisite probable cause to arrest the defendant for OWI. The HGN test was
not used by officers in the field to determine the level of the defendant's
intoxication. It was simply a test employed to indicate the presence of
intoxicants in the defendant's system. In other words, the HGN test can
qualify the presence of alcohol, not quantify alcohol content.
People v Berger, 217 Mich App 213, 215; 551 NW2d 421 (1996) (citing State v
Superior Court of Arizona, 149 Ariz 269, 275; 718 P2d 171 (1986)).
37
State v Superior Court of Arizona, 149 Ariz at 275.
38
Berger, supra (citing The Merck Manual of Diagnosis and Therapy 1980 (14th ed
1982)).
39
Berger, supra, at 423 (emphasis added). See also State v Superior Court of Arizona,
supra (stating that nystagmus is an indication of intoxication).
36
16
CHAPTER 4: BREATH AND BLOOD EVIDENCE In Berger, the court specifically chose to follow those cases which classify the
HGN test as “scientific evidence” and held that “the HGN test, when used to
qualify the presence of alcohol, has gained general acceptance in the
scientific community and has satisfied the requirements of the Davis-Frye
rule.” 40 The court concluded that "the only foundation necessary for the
introduction of evidence regarding the HGN test in Michigan is evidence that
the test was properly performed and that the officer administering the test
was qualified to perform it." 41
PRELIMINARY BREATH TEST (PBT)
Under MCL 257.625a(2), an officer may require a person to submit to a
preliminary chemical breath analysis. The results of the test will assist the
officer in determining whether an arrest should be made. “A peace officer
may arrest a person based in whole or in part upon the results of a
preliminary chemical breath analysis.” MCL 257.625a(2)(a).
The Preliminary Breath Test (hereinafter “PBT”) can be administered only
after the police officer has “reasonable cause to believe [both] (1) that [the]
person was operating a vehicle upon a public highway or other place open to
the public or generally accessible to motor vehicles… and (2) that the person
by the consumption of intoxicating liquor may have affected his or her ability
to operate a vehicle.” MCL 257.625a(2).
The phrase “reasonable cause” indicates the same degree of probability as
“probable cause” under Michigan statutes and decisions: “[r]easonable or
probable cause stems from some fact, circumstance, or information which
creates an honest belief in the mind of a reasonable and prudent [person].” 42
The phrase “may have” should be construed and understood according to its
common usage. See MCL 8.3a. Commonly used, “may have” denotes a
Berger, supra, at 424.
Id. Note that other jurisdictions have come to different conclusions regarding the
admissibility of HGN tests. SeePeople v Joehnk, 35 Cal App 4th 1488; 42 Cal Rptr 2d 6
(Cal Ct App 1995) (holding that the HGN test is admissible to show presence of
alcohol); State v Witte, 251 Kan 313; 836 P2d 1110 (Kan 1992) (holding that the
HGN test has to meet Frye to be admitted); State v Barker, 336 SE2d 642 (W Va Ct
App 1988) (holding that the HGN test is admissible to show that the driver was
under the influence but inadmissible to establish estimates of BAC); People v Dakuras,
172 Ill App 3d 865; 527 NE2d 163 (Ill App Ct 1988) (holding that results of the HGN
test are admissible as evidence of intoxication but are not admissible as evidence that
a defendant's BAC is in excess of .10 per cent); State v Superior Court of Arizona, 149
Ariz 269; 718 P2d 171(1986) (holding that the HGN test satisfies Frye and that it can
be used to establish probable cause to arrest but may not be used to prove a BAC of
.10% or more in the absence of a chemical analysis on the defendant's blood); Peoplev
Vega, 145 Ill App 3d 996; 496 NE2d 501 (Ill App Ct 1986) (holding that police
officer's testimony regarding how the HGN test is performed alone is not a sufficient
foundation for admission).
42
People v Langston, 57 Mich App 666, 672; 226 NW2d 686 (1975).
40
41
17
OWI MANUAL mere possibility. Therefore, according to MCL 257.625a(2), the officer must
have an honest, reasonable belief that the driver's ability to operate was
affected by the consumption of alcohol.
DEFENDANTS’ INCULPATORY STATEMENTS
In an alcohol related driving offense case, as in any criminal prosecution, the
defendant's statements are invaluable in securing a conviction. Therefore,
the defendant may move to suppress and request a hearing to determine the
voluntariness of the defendant's inculpatory remarks.
In Miranda v Arizona, the court held that certain warnings informing an
accused of his Fifth Amendment Rights against self-incrimination must be
given when there is custodial interrogation. 43 Questioning becomes custodial
“after a person has been taken into custody or otherwise deprived of his or
her freedom of action in any significant way.” 44 In People v Hill, the
Michigan Supreme Court adopted this custody test. 45
PBTS ARE NOT SELF-INCRIMINATORY
“Michigan courts have long recognized that administering a Breathalyzer test
does not violate the privilege against self-incrimination.” 46 The Michigan
courts have stated that “[t]his recognition is based on the rationale that the
results are derived from chemical analysis, not from the defendant's
testimonial capacities.” 47
TRAFFIC STOPS ARE NOT CUSTODIAL
The first issue at any hearing is whetherMiranda applies. Note that
althoughMiranda warnings are applicable to traffic offenses, the warnings
need not be given prior to the time the accused is taken into custody.
Generally, Miranda v Arizona applies to custodial interrogations. 48 The
general rule established by the courts which have passed on this question is
that the roadside questioning of a motorist detained pursuant to a routine
traffic stop does not constitute custodial interrogation for purposes of
Miranda. 49
384 US 436, 444; 86 S Ct 1602; 16 L Ed 694 (1966).
Id.
45
429 Mich 382; 415 NW2d 193 (1987).
46
See People v Gebarowski, 47 Mich App 379, 384; 209 NW2d 543 (1973).
47
Jelneck, supra at 460.
48
384 US 436; 86 S Ct 1602; 16 L Ed 694 (1966)
49
See Pennsylvania v Bruder, 488 US 9; 109 S Ct 205; 102 L Ed 2d 172 (1988); People v
Jelneck, 148 Mich App 456; 384 NW2d 801 (1986); People v Chinn, 141 Mich App 92;
366 NW2d 83 (1985); Berkemer v McCarty, 468 US 420; 104 S Ct 3138; 82 L Ed 2d
317 (1984).
43
44
18
CHAPTER 4: BREATH AND BLOOD EVIDENCE In People v Jelneck, the officer stopped the defendant after observing the
defendant driving in the wrong lane of traffic. The officer noticed a strong
odor of alcohol on the defendant. 50 The defendant fumbled to produce his
license. The officer testified that the defendant’s walk was staggered. The
officer inquired as to how much education the defendant had completed, and
the defendant replied that he had reached the sixth grade. When asked if he
could count to ten or if he knew the alphabet, the defendant said no. The
officer also noted that the defendant had poor balance. The officer arrested
the defendant for OUIL.
The defendant was read his chemical test rights and he agreed to a breath
test,with a result of a BAC of .18%. The defendant was never read Miranda
warnings. He was charged with OUIL/UBAC, third offense.
The defendant argued that both his statements and the Breathalyzer results
were inadmissible because the police did not advise him of his Miranda
rights. The court held that “[r]oadside questioning by police officers for the
purpose of determining whether a motorist is intoxicated does not constitute
custodial interrogation and, therefore, Miranda rights do not attach.” 51 The
Jelneckcourt concluded that the “police officer engaged in acceptable roadside
questioning, not custodial interrogation,” and therefore, the defendant's
statements were admissible. 52
INTERROGATIONS NEED NOT STOP FOR AMBIGUOUS STATEMENTS
Once the defendant has been arrested for OWI and is in custody, Miranda
applies. The issue then becomes whether he or she has appropriately waived
their rights. In Berghuis v Thompkins, the Supreme Court of the United States
upheld the conviction of the respondent, Thompkins, for first-degree
murder. 53 Thompkins had been advised of his Miranda rights, and remained
silent for over three hours during police interrogation. At no point did
Thompkins state that he wanted to remain silent, that he did not want to talk
with police, or that he wanted an attorney. However, near the end of the
interrogation, Thompkins answered “yes” when he was asked if he prayed to
God to forgive him for the shooting. The Supreme Court ruled that
Thompkins’ silence during the interrogation did not invoke his right to
remain silent because “[i]f an accused makes a statement concerning the right
to counsel ‘that is ambiguous or equivocal’ or makes no statement, the police
are not required to end the interrogation.” 54
148Mich App 456; 384 NW2d 801 (1986).
Id. at 460
52
Id.
53
Berghuis v. Thompkins, 130 SCt 2250, 176 LEd 2d 1098 (2010).
54
Id. at 2259 (citing Davis v United States, 512 US 452, 459, 114 SCt 2350, 129 LEd2d
362 (1994)).
50
51
19
OWI MANUAL The Court in Berghuis further noted that the lack of any contention that
Thompkins did not understand his rights indicated that he knew what he
gave up when he spoke. Further, his answer to the question about God was
a “course of conduct indicating waiver” of that right. 55 There also was no
evidence that the statement was coerced. 56
VOLUNTARINESS OF STATEMENTS
When faced with the admissibility of his or her statements, the defendant
may argue that the statements were involuntary because of his or her
intoxicated state. (This argument is without merit unless intoxication speaks
to the degree of mania or the accused is unable to understand the meaning of
his or her statements, or is rendered unconscious of what he or she is
saying.) 57
The argument of involuntariness because of intoxication to the degree of
mania is usually inapplicable to statements made in OWI cases, since, in
these cases, admissions, not confessions, are given. The defendant cannot
request that the court rule on the voluntariness of an admission as opposed to
a confession.
ADMISSIONS VS CONFESSIONS
The Michigan courts have distinguished between a confession and an
admission as follows: “If the fact admitted necessarily amounts to a
confession of guilt, it is a confession. If, however, the fact admitted does not
of itself show guilt but needs proof of other facts, which are not admitted by
the accused, in order to show guilt, it is not confession but an admission.” 58
In Drielick, the court held that the voluntariness of an admission is not
determined by the court, but by the jury. 59 Finally, it should be noted that a
voluntary statement taken in violation of Miranda can be used to impeach the
defendant at trial. 60
Id. at 2254 (quoting North Carolina v Butler, 441 US 369, 373, 99 SCt 1755, 60 L
Ed2d 286 (1979)).
56
Id. at 2263 (citing Moran v Burbine, 475 US 412, 421, 106 SCt 1135, 89 LEd2d 410
(1986)).
57
People v Crawford, 89 Mich App 30, 33–34; 279 NW2d 560 (1979).
58
People v Drielick, 56 Mich App 664, 667–68; 224 NW2d 712 (1974), aff’d, 400 Mich
559; 255 NW2d 619 (1977) (quoting People v Porter, 269 Mich 284, 290; 257 NW2d
705 (1934)).
59
Id. at 668.
60
Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971); People v Stacy, 193
MichApp. 19; 484 NW2d 675 (1992).
55
20
CHAPTER 4: BREATH AND BLOOD EVIDENCE POTENTIAL DANGER
DETENTION
TO
OFFICER
ALLOWS
TEMPORARY
In Arizona v Johnson, the defendant was a passenger in the back seat of a
vehicle stopped for a license plate check. 61 The police officer found that the
insurance on the vehicle had been suspended.
After the traffic stop, the police officer initiated a conversation with the
defendant that was unrelated to the reason for the traffic stop. Thereafter, the
officer asked the defendant to exit the vehicle. The officer conducted a patdown search of the defendant because she was concerned for her safety upon
noticing signs that he may have been affiliated with a gang.
During the pat-down search, the officer found a gun near his waist; he was
arrested, and a further search found marihuana. The defendant was charged
with possessing a gun without legal authorization, possession of marihuana,
and resisting arrest.
The United States Supreme Court reversed the Arizona Court of Appeals
decision. The Court held that “a reasonable passenger would understand that
during the time a car is lawfully stopped, he or she is not free to terminate the
encounter with police and move about at will.” 62 The Court further held that
“nothing occurred in this case that would have conveyed to the defendant
that, prior to the frisk, the traffic stop had ended or that he was otherwise free
to depart without police permission.” 63
Therefore, the Court concluded that the officer was not required by the
Fourth Amendment to give the defendant an opportunity to depart without
first ensuring that, in so doing, she was not permitting a dangerous person to
get behind her.
WARRANTLESS ARRESTS
Years ago, an officer could only arrest a misdemeanor defendantwithout a
warrant if that misdemeanor was committed in the officer’s presence. 64 The
OWI statute itself, therefore, provided (and still provides) an officer with
additional warrantless arrest powers for an OWI suspect who was involved
in an accident and an OWI suspect who is found in the driver’s seat of a
vehicle that is protruding into the roadway. 65 Since August 21, 2000,
555 US 323 (2009).
Id. at 783.
63
Id.
64
See, MCL 764.15(1)(a).
65
MCL 257.625a(1)(a) and (b).
61
62
21
OWI MANUAL however, police can make an arrest for any crime with a penalty over 92 days
if they have probable cause. 66
The most important thing to remember for any defense attack on the arrest is
that for an arrest to be valid the objective factors present, not the officer’s
subjective view, need only demonstrate probable cause not an actual showing
of criminal activity. 67 “Innocent explanations” for the defendant’s driving
and/or performance on the SFSTs do not negate probable cause. 68
VEHICLE SEARCHES
In Arizona v Gant 69 the defendant was arrested for driving on a suspended
license. He was handcuffed and locked in a patrol car before officers searched
his car and found cocaine in a jacket pocket. The Court held that police may
search the passenger compartment of a vehicle incident to a recent occupant’s
arrest (i.e. without a warrant) only if it is reasonable to believe that the
arrestee might access the vehicle at the time of the search, or that the vehicle
contains evidence of the offense of arrest. In OWI cases it’s reasonable to
believe that a search may reveal evidence of the offense such as empty beer
cans, liquor bottles, purchase receipts, etc. Be prepared to discuss these
searches under Gant.
DEFENSE CLAIM: LACK OF PROBABLE CAUSE FOR ARREST
Defense attorneys’ attacks on the arrest of an OWI suspect take many
different forms, but most have to do with attacking the probable cause
determination. The categories listed below are the most common attacks and
good responses thereto.
MCL 764.15(1)(d) (amended by P.A. 2000, No. 208); People v Stephen, 262 Mich
App 213 (2004) (recognizing validity of OWI arrest under MCL 764.15(1)(d)); People
v McClatchey, unpublished decision, Court of Appeals No. 237570 (August 30, 2002)
(upholding validity of arrest of OWI suspect based on citizen call to police of
suspected drunk driver even though by the time the officer made contact with the
defendant she was already at her home and not in her car, because the defendant
admitted she had driven and the officer had reasonable cause to believe that she had
committed the OWI offense and, therefore, arrest without a warrant was appropriate
under MCL 764.15).
67
People v Lyon, 227 Mich. App. 599, 611 (“Probable cause requires only a probability
or substantial chance of criminal activity, not an actual showing of criminal
activity.”); People v Cipriano, 413 Mich 315, 342 (1988) (“An arresting officer’s
subjective characterization of the circumstances surrounding an arrest does not
determine its legality. Rather, probable cause to justify an arrest has always been
examined under a standard of objective reasonableness without regard to the
underlying intent or motivation of the officers involved.”).
68
People v Yeoman, 218 Mich. App. 406 (1996); People v Mitchell, 138 Mich. App. 163,
168–69 (1984) (“The possibility that some innocent explanation might exist does not
deprive an officer of probable cause to arrest.”).
69
129 S. Ct. 1710 (2009).
66
22
CHAPTER 4: BREATH AND BLOOD EVIDENCE There are three standardized field sobriety tests (“SFSTs”) recommended by
NHTSA – Horizontal Gaze Nystagmus (HGN), Walk and Turn, and the
One-Leg Stand tests. However, the only case law addressing the foundation
for admission of SFST results deals with the HGN. The case law requires
only that the officer be properly trained and that the test be properly
administered. 70 Remember that when the HGN results are admitted, they go
only to show presence of alcohol in a defendant’s body, not to show a
specific BAC level.
Moreover, contrary to defense arguments to the contrary, a defendant’s
performance on “non-standardized” field sobriety tests is still admissible. 71
Practice Tip: The same foundation for physical performance SFSTs should be laid as for HGN Tests, but do not concede that the admittance of non‐HGN SFST evidence requires such a foundation; the tests are inherently different. Although there is no case law dealing with the foundation for the Walk and
Turn and One Leg Stand tests, reason dictates that that you should establish
the same foundation as for the HGN – that the officer was properly trained
and that he properly administered the test. However, do not concede that
such foundation is necessary before the admission of any SFST other than
the HGN. There is an inherently different nature between the HGN test and
all other SFSTs – HGN involves an involuntary jerking of the eyeball whose
presence can be observed by the officer only if the officer properly
administers the test. The other SFSTs are physical performance tests that aid
an officer in gathering observations about the defendant’s physical
mannerisms, which would be admissible under Hanna. Therefore, even if an
officer has missed one of the steps in his training for that administration of
the Walk and Turn or One Leg Stand tests, those results should still come in.
ADMINISTRATION OF PBT
During the course of an OWI investigation, the police can administer the
Preliminary Breath Test (“PBT”) pursuant to consent or pursuant to statute.
A PBT is no different than any other search that an officer might conduct
and, therefore, can be administered pursuant to the consent of the defendant,
People v Berger, 217 Mich App 213, 216 (1996).
People v Hanna, 223 Mich App 466; 567 NW2d 12 (1997) (upholding the admission
of non-SFSTs because such testimony is relevant, admissible testimony as is a lay
opinion of an officer based on physical observations of the defendant).
70
71
23
OWI MANUAL which is proper as an exception to the warrant requirement under the Fourth
Amendment. 72
Practice Tip: Just as with any consent‐search, an officer need not articulate a basis to ask a defendant to voluntarily consent to a PBT. A PBT may also be administered pursuant to MCL 257.625a(2), which
provides that the police can require a defendant to submit to a PBT providing
the officer has reasonable cause to believe that the consumption of alcohol
may have affected a defendant’s driving ability.
When seeking to admit a PBT as having been administered pursuant to
statute, the question arises as to what is the proper foundation for admission
of the PBT results. The short answer to that question is that you must show
compliance with the administrative rules. This means that the proper
foundation for the admission of PBT results is:
1. The PBT was administered by a properly classified operator (Rule
325.2658);
2. The PBT instrument has been tested for accuracy and reliability once
per month (Rule 325.2653(2)); and
3. The officer has determined that the defendant has not smoked,
regurgitated, or placed anything in his mouth for 15 minutes prior to
the administration of the test (Rule 325.2655(2)(b)).
Contrary to numerous defense arguments to the contrary, there are no “PBT
rights” that must be read to the non-commercial operator prior to admission
of the PBT pursuant to statute. 73
Although the statutes specifically provide for reading of PBT rights to
commercial drivers and for all OWI suspects for the evidential testing
method (DataMaster), no such obligation is written in the statute regarding
the PBT for non-commercial drivers. 74
(See consent principals discussed below reference obtaining a blood sample.) Æ
change to infra
73
People v Kabanuk, unpublished Court of Appeals decision, Court of Appeals No.
245608 (May 6, 2004).
74
See MCL 257.625a(4) (requiring that the driver of a commercial motor vehicle
who is given a PBT pursuant to MCL 257.625a(2) shall be advised of the
ramifications of refusal); 257.625a(6)(b) (requiring police to advise defendant of
chemical test rights before submitting to evidential breath test).
72
24
CHAPTER 4: BREATH AND BLOOD EVIDENCE Practice Tip: The most important reason to fight for the admission of the PBT result in pretrial motions is because the PBT alone can support the officer’s arrest decision. 75 In People v Mullen 76 , a police officer observed the defendant’s car stop at a red
traffic light, pause for a few seconds, and then proceed through the red light.
The officer initiated a traffic stop, noticed an odor of alcohol and
Defendant’s watery and bloodshot eyes, and requested that the defendant
perform field sobriety tests, all of which he failed. The officer then
administered a PBT. He testified at the preliminary examination that he
checked the defendant’s mouth before placing him in the back of the patrol
car, waited fifteen minutes, and then administered the test. The officer also
testified that when he checked the defendant’s mouth, it was empty.
However, he subsequently admitted that when he began to read the
defendant his PBT rights, he noticed that defendant had a small piece of
paper in his mouth. Defendant’s PBT result was 0.15. The officer did not
disclose in his affidavit that the defendant had paper in his mouth less than
fifteen minutes before he conducted the PBT. Based on the affidavit, the
magistrate issued a search warrant for a blood sample. The blood sample
revealed that the defendant had a blood alcohol content of 0.11. Defendant
was charged with operating a motor vehicle while intoxicated as a third
offender.
The Circuit Court found that the officer recklessly omitted information that
the defendant had paper in his mouth less than fifteen minutes before the
administration of the PBT. The Court of Appeals reversed, concluding that
the omission by the officer was not material because the defendant had
presented insufficient evidence that presence of paper in his mouth would
significantly call into question the accuracy of the PBT result. 77 Further, the
court held that the remaining information in the search warrant, even when
the improperly omitted information was removed, was sufficient to form
probable cause to issue a search warrant for the defendant’s blood. 78 The
court found that the circuit court erred in determining that a reasonable
magistrate would not have found probable cause to issue a search warrant. 79
75
MCL 257.625a(2)(a) (“A peace officer may arrest a person based in whole or in
part upon the results of a preliminary chemical breath analysis.”).
76
People v Mullen, 282 Mich App 14, 762 NW2d 170 (2008).
77
Id. at 167 (citing People v Stumpf, 196MichApp 218, 492 NW2d 795 (1992)).
78
Id. at 177-78.
79
Id. at 178.
25
OWI MANUAL C HAPTER 4: B REATH AND B LOOD E VIDENCE ADMISSIBILITY OF THE PRELIMINARY BREATH TEST RESULTS
A Preliminary Breath Test (PBT) device is a hand-held instrument that police
officers carry in the field to obtain preliminary readings of an operator’s
blood alcohol level at the scene of an alleged offense. 80 The results obtained
from a PBT are not treated the same as the results obtained from an
evidential breath alcohol instrument like the DataMaster.
The implied consent statute provides for the use of PBT’s in OWI cases.
However, the statue places limits on how PBT results may be used in a given
case. MCL 257.625a(2)-(5); MSA 9.2325(1)-(5). Section 625a(2)(a) provides
that a peace officer may arrest based in whole or in part upon the results of a
PBT. Further, § 625a(2)(b) provides:
The results of a preliminary chemical breath analysis are admissible in a
criminal prosecution for a crime enumerated in section 625c(1) or in an
administrative hearing for 1 or more of the following purposes:
(i) To assist the court or hearing officer in determining a challenge to the
validity of an arrest. This subparagraph does not limit the introduction of
other competent evidence to establish the validity of an arrest.
(ii) As evidence of the defendant’s breath alcohol content, if offered by the
defendant to rebut testimony elicited on cross-examination of a defense
witness that the defendant’s breath alcohol content was higher at the time
of the charged offense than when a chemical test was administered under
subsection (6).
(iii) As evidence of the defendant's breath alcohol content, if offered by the
prosecution to rebut testimony elicited on cross-examination of a
prosecution witness that the defendant’s breath alcohol content was lower
at the time of the charged offense than when a chemical test was
administered under subsection (6).
Generally, a PBT is administered by an officer at the scene to help provide
the requisite probable cause to make an arrest, but may not be admitted at
trial in the prosecutor’s case-in-chief to prove that the defendant was in fact
intoxicated. 81 As stated above, the results of a PBT may only be admitted at
trial as evidence of the defendant’s BAC, if offered by the defendant to rebut
testimony elicited on cross-examination of a defense witness that the
defendant’s breath alcohol content was higher at the time of the charged
offense than when a chemical test was administered, or if offered by the
See People v Tracy, 186 Mich App 171; 463 NW2d 457 (1990).
See People v Keskinen, 177 Mich App 312; 441 NW2d 79 (1989).
80
81
26
CHAPTER 4: BREATH AND BLOOD EVIDENCE prosecution to rebut testimony elicited on cross-examination of a prosecution
witness that the defendant's breath alcohol content was lower at the time of
the charged offense than when a chemical test was administered.
Although evidence of the defendant’s PBT cannot be admitted in the
prosecutor’s case-in-chief, the results can be used to establish probable cause
in an affidavit for a blood alcohol search warrant. 82 In Tracy, the court
reasoned that allowing PBT results to be used to obtain a search warrant
comports with the overall purpose of the statutory scheme, as well as the
apparent intent of the specific restrictions on PBT use. 83 The long-range goal
is to reduce the carnage caused by drunk drivers by preventing intoxicated
persons from driving. The purpose of the PBT use restrictions is to prevent
convictions from being based on test results that are less reliable than those
normally used for evidential purposes. 84
Seealso,City of WestlandvOkopski, where the Court of Appeals held that PBT
results could be used by a prosecutor in rebuttal in a disorderly conduct case
to impeach the defendants’ testimony at trial that they were not intoxicated. 85
IMPLIED CONSENT LAW
The implied consent law provides that an individual who undertakes to
operate a motor vehicle upon the highways in the state of Michigan has
thereby given consent to have chemical tests performed to determine the
amount of intoxicants in his or her blood, breath, or urine.
MCL 257.625c(1) sets forth Michigan’s implied consent law which provides,
in pertinent part, that:
A person who operates a vehicle upon a public highway or other place
open to the general public or generally accessible to motor vehicles,
including an area designated for the parking of vehicles, within this state is
considered to have given consent to chemical tests of his or her blood,
breath, or urine for the purpose of determining the amount of alcohol or
presence of a controlled substance or both in his or her blood or urine or the
amount in his or her breath. . . .
According to MCL 257.625c(1)(a) the implied consent statute applies where
an individual is arrested for the following statutory offenses:
1. Operating a vehicle while intoxicated due to the consumption of
alcoholic liquor, a controlled substance, other intoxicating substance
or a combination.
People v Tracy, 186 Mich App 171; 463 NW2d 457 (1990).
Tracy, supra at 179.
84
Id.
85
208 Mich App 66; 527 NW2d 780 (1994).
82
83
27
OWI MANUAL 2. Operating a vehicle while visibly impaired due to the consumption of
alcoholic liquor, a controlled substance, other intoxicating substance
or a combination.
3. Operating with any presence of schedule 1 drugs or cocaine.
4. Causing the death of another while operating a vehicle while
intoxicated, or while visibly impaired by alcoholic liquor, a
controlled substance, or other intoxicating substance or a
combination, or with an unlawful bodily alcohol content.
5. Causing serious injury to another while operating a vehicle
intoxicated, or while visibly impaired by alcoholic liquor, a
controlled substance, other intoxicating substance or a combination,
or with an unlawful bodily alcohol content.
6. Operating a commercial motor vehicle with bodily alcohol content of
0.04 grams or more but less than 0.08 grams per 100 milliliters of
blood, per 201 liters of breath, or per 67 milliliters of urine.
7. Operating a vehicle with less than 21 years of age and having any
bodily alcohol content.
8. Murder resulting from the operation of a motor vehicle.
9. Manslaughter resulting from the operation of a motor vehicle.
10. Reckless driving causing death.
11. Reckless driving causing serious impairment of a body function.
12. Moving violation causing death.
13. Moving violation causing serious impairment of a body function.
14. Refusing a Preliminary Breath Test if arrested while operating a
commercial vehicle.
15. Endangerment (Operating while intoxicated or while visibly impaired
with person under age 16.)
There is an exception under the law for the withdrawal of blood if the
individual “is afflicted with hemophilia, diabetes, or a condition requiring the
use of an anticoagulant under the direction of a physician.” MCL
257.625c(2). This exception only applies to the withdrawal of blood. A
28
CHAPTER 4: BREATH AND BLOOD EVIDENCE person so afflicted is not deemed to have given consent for the withdrawal of
blood. 86
The original choice of which type of test will be offered to an individual
arrested under the OWI statute lies with the arresting officer. 87 MCL
257.625a(6)(d) provides that:
A chemical test described in this subsection shall be administered at the
request of a peace officer having reasonable grounds to believe the person
has committed a crime described in section 625c(1). A person who takes a
chemical test administered at a peace officer's request as provided in this
section shall be given a reasonable opportunity to have a person of his or
her own choosing administer 1 of the chemical tests described in this
subsection within a reasonable time after his or her detention. The test
results are admissible and shall be considered with other admissible
evidence in determining the defendant's innocence or guilt. If the person
charged is administered a chemical test by a person of his or her own
choosing, the person charged is responsible for obtaining a chemical
analysis of the test sample.
Pursuant to MCL 257.625a(6)(b)(i), a person arrested for an implied consent
offense (a crime referred to in § 625c(1)), the defendant must be given the
following advice:
If he or she takes a chemical test of his or her blood, urine or breath
administered at the request of a peace officer, he or she has the right to
demand that a person of his or her own choosing administer 1 of the
chemical tests.
It should be emphasized that the accused’s right to an independent chemical
test is an important right, and when the accused agrees to the test offered by
law enforcement, that person may not be deprived of the opportunity to an
independent test. 88 In People v Burton, the Court of Appeals ruled that a
person is deprived of due process of the law when they are deprived of a
reasonable opportunity to gather competent evidence for the defense. 89
In Koval, the defendant was deprived of the statutory right to a chemical test,
in part, because the police decided that the defendant was so far under the
influence that he was incapable of understanding his rights to a chemical test,
so he was never advised of his rights to a chemical test. In Burton, the
defendant was advised of his rights to a test, and responded by giving the
name of a physician to the police to be contacted to give him a blood alcohol
test. Thereafter, the defendant was placed in detention without ever
86
People v. Hyde, 285 Mich App 428 (2009).
CollinsvSec of State, 384 Mich 656; 187 NW2d 423 (1971).
88
People v Underwood, 153 Mich App 593; 396 NW2d 443 (1986); People v Koval, 371
Mich 453; 124 NW2d 274 (1963).
89
13 Mich App 203; 163 NW2d 823 (1968).
87
29
OWI MANUAL receiving the requested test. The police apparently called and left a message
for the doctor who never called back. In any event, the police never
informed the accused that no actual contact was made with the doctor.
Finally, consider the facts in Underwood where the court ruled that the
defendant was deprived of the right to an independent test where the officers
talked him out of the test by saying that the test was silly and stupid, the test
would show a higher BAC, and that the defendant was going to jail anyway.
Compare this to People v Dicks, where the defendant requested to be taken to a
certain hospital to have an independent blood test administered. 90 Despite
the fact that the hospital was within a reasonable driving distance, the police
took the defendant to another hospital that was closer for the test. In Dicks,
the Court of Appeals held that “[h]ere, although defendant was denied the
opportunity to have a chemical test administered by a person of his own
choosing, he nonetheless obtained an independent chemical test and does not
challenge the results of the independent test or claim that the test was
improperly performed. We believe that the proper remedy for such a
statutory violation is suppression of the evidence rather than a dismissal of
charges.” 91
In People v Prelesnik, the court considered a case where the defendant did not
make a request for an independent chemical test until three hours and fortyfive minutes after he was first detained by the police. 92 The police denied the
request as untimely. The Court of Appeals held that it was for the courts and
not the police to determine whether such a delay is reasonable and whether
blood tests after such a delay would be relevant. The court found that “[t]he
relevant inquiry, pursuant to the statutory language, is whether defendant
was given a reasonable opportunity (1) to have an independent alcohol
content test, (2) performed by a person of his own choosing, (3) within a
reasonable time after his detention.” 93 The court found that the length of the
delay alone was not dispositive of whether the request for an independent test
was timely made. The court then remanded the case to the district court to
determine whether after the delay, the results of the chemical test would have
been relevant. If the results would have been relevant, then the defendant
would have been deprived of his right to an independent chemical test, and
dismissal would be the appropriate remedy for such a violation. 94
In light of the decision in Prelesnik, whenever a defendant makes a request for
an independent chemical test, even where the officer believes that the request
may be unreasonable or untimely, the officer should probably comply with
190 Mich App 694; 476 NW2d 500 (1991).
Id.at 700-701.
92
219 Mich App 173; 555 NW2d 505 (1996).
93
Id. at 180.
94
Id. at 181.
90
91
30
CHAPTER 4: BREATH AND BLOOD EVIDENCE the defendant’s request, or risk the possibility that the charges will be
dismissed at a later date.
ADMISSIBILITY OF THE CHEMICAL TEST RESULTS
To have the results of a Breathalyzer test admitted into evidence, the
prosecutor must establish four foundational requirements:
1. that the Breathalyzer operator was qualified;
2. that the operator followed the proper procedures for administering
the breath test
3. that the time between the defendant's arrest and the administration of
the Breathalyzer was reasonable; and
4. that the testing device was reliable. 95
If the prosecution does not meet these four foundational requirements, the
results of the breath test will not be admitted. 96
To establish that the particular DataMaster instrument was accurate and the
attendant results reliable, it is incumbent on the state to show that the
instrument was calibrated properly, and that it was maintained in a manner
consistent with the applicable rules governing breath testing instruments. 97
Practice Tip: The question of delay no longer has any bearing on the admissibility of the evidence, but rather goes to the weight of the evidence. The issue most likely to be raised in connection with the foundational
requirements is whether the breath test was given within a reasonable time
after arrest. The issue is most often contested on the basis the Court of
Appeals’ rulings in Kozar, supra, and People v Schwab, 173 Mich App 101; 433
NW2d 824 (1988). However, a decision by the Michigan Supreme Court
overrules both Kozar and Shwab. The question of delay no longer has any
bearing on the admissibility of the evidence, but rather goes to the weight of
the evidence. In People v Wager, the Supreme Court reversed the holding of
the Court of Appeals. 98 The Supreme Court held that “no sound reason
exists to engraft the ‘reasonable time’ element onto the clear language of the
People v Tipolt, 198 Mich App 44; 497 NW2d 198 (1993).See also, People v Kozar, 54
Mich App 503; 221 NW2d 170 (1974).
96
See People v Krulikowski, 60 Mich App 28; 230 NW2d 290 (1975) (holding that the
prosecutor's failure to introduce evidence to establish that the particular Breathalyzer
instrument used was accurate and reliable rendered the results inadmissible).
97
1994 AACS, R 325.2652-325.2654. See also Krulikowski,60Mich App at 31.
98
460 Mich 118; 594 NW2d 487 (1999).
95
31
OWI MANUAL statute.” 99 So there is no requirement that a blood test be given within a
reasonable time after the defendant’s arrest. The court also decided that a
prosecutor is not required to introduce an expert to testify on issue of
usefulness of the blood alcohol test after a long period of time has elapsed.
“To the extent that the passage of time reduces the probative value of the test,
the diminution goes to weight, not admissibility, and is for the parties to
argue before the finder of fact.” 100
Kozarheld, as a general rule, that when alcohol tests are performed within a
reasonable time after arrest, the prosecution is not obligated to provide
testimony to relate back the defendant's BAC to the time that the defendant
was operating the vehicle. In other words, "relat[ing] test results back to the
time of the alleged offense [is not] a condition precedent to
admissibility."Kozar, supra at 507. In reaching this conclusion, the court in
Kozar relied, in part, on the legislative intent behind the passage of the
implied consent law, i.e., to obtain the best evidence available of the
defendant’s BAC at the time of the arrest. The court found that the
legislature intended that:
. . . a defendant's blood alcohol content at the time of the offense should be
regarded as equivalent to his blood alcohol content as determined by a
subsequent chemical test provided such test was administered within a
reasonable time after the defendant's arrest. [Kozar, supra at 508 (emphasis
added).]
The reasonable time requirement set forth has been overruled by the Supreme
Court in Wager.
In People v Schwab, 173 Mich App 101; 433 NW2d 824 (1988), the court was
concerned with the reasonableness of a two-hour and fifteen-minute delay
from the time of the stop to the time of the tests. In Schwab, the court upheld
the lower court decisions that a delay of two and one-quarter hours was
unreasonable. However, the court declined to set a specific limit as to how
much delay will be considered reasonable in a given case. Accordingly, the
court left the issue of reasonableness to the trial courts to be determined on a
case-by-case basis. Id. at 104-105. However, Wager renders this decision
moot. The length of delay between arrest and the administration of the BAC
test is no longer an issue with regard to admissibility.
In PeoplevCampbell, 236 Mich App 490; 601 NW2d 114 (1999), the Court of
Appeals reiterated the Supreme Court’s ruling in Wager. In Campbell, the
defendant was involved in a one-car automobile accident at 10:54 p.m. He
was arrested at 12:42 a.m. for OUIL. He was then driven to a hospital thirty
Id. at 126.
Id.
99
100
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CHAPTER 4: BREATH AND BLOOD EVIDENCE miles away and had his blood drawn at 1:18 a.m. The court held that a delay
in testing does not prevent admissibility. However, delay can affect the
weight of the evidence. After an extensive time delay, the BAC test evidence
may no longer meet the test of relevancy. In such a situation, the BAC test
may be excluded as irrelevant. Campbell expressly held “the only prerequisite
to admission of blood alcohol tests is a threshold relevancy requirement.” Id.
at 506.
In an effort to utilize expert testimony to show that alcohol tests are
unreliable due to a delay in their administration, an accused may seek to
have the court appoint an expert at state expense. In such cases, the defense
should be required to comply with the Supreme Court’s ruling in People v
Jacobsen, 448 Mich 639; 532 NW2d 838 (1995). In Jacobsen, the Supreme
Court ruled that an indigent defendant who seeks the appointment of an
expert witness pursuant to MCL 775.15; MSA 28.1252 must make a showing
that the expert’s testimony will likely benefit the defense. The court further
stated that the defendant must show a nexus between the facts of the case
and the need for an expert. The mere allegation that a delay was
unreasonable with reference to Schwab, supra, is not a sufficient showing to
give an indigent defendant the right to the appointment of an expert under
the statute.
ISSUES SURROUNDING THE BREATH TEST
The primary issues surrounding the PBT include:
1. Defendant’s Right to Counsel Before a Breath Test
2. Defendant’s Refusal to Submit to a Breath Test
3. Administrative Rules Governing the Breath Test
4. Equipment Accuracy and Maintenance
RIGHT TO COUNSEL BEFORE A BREATH TEST
The denial of the right to have counsel present prior to consenting to take a
DataMaster test does not violate the Sixth Amendment.
In Holmbergv54-A Judicial District Judge, 60 Mich App 757; 231 NW2d 543
(1975), the plaintiff was convicted of driving while under the influence of
alcohol. The police informed the plaintiff of the right to counsel but did not
allow him to call his attorney before he submitted to a chemical test. As a
result, the plaintiff refused any test to determine his BAC. The plaintiff
argued that the police officer's refusal to allow him to have his attorney
present for the administration of the Breathalyzer violated his constitutional
rights to gather information and prepare an adequate defense. The court
ruled that the defendant’s constitutional rights were not violated.
33
OWI MANUAL The court quoted from United StatesvWade, 388 US 218, 228; 87 S Ct 1926,
1933; 18 L Ed 2d 1149 (1967), and intimated that the administration of a
Breathalyzer test is a mere preparatory step in the gathering of the
prosecution’s evidence and is not a "critical stage since there is minimal risk
that [the absence of defendant's counsel] at such stages might derogate from
his right to a fair trial." Holmberg, supra at 759. The court found that the
delay involved by the process of seeking the advice of counsel would not
provide a realistic appraisal of the driver’s condition because of the relative
rapidity with which the body rids itself of alcohol. The court concluded by
finding that the mere allowing of a reasonable phone call to counsel prior to
the administration of a Breathalyzer test would be a more commendable
practice; however, the denial of the right to consult in this case did not
violate the defendant’s constitutional rights. Id. In accord, see People v
Jelneck, 148 Mich App 456, 460-461; 384 NW2d 801 (1986), where the court
stated that the Sixth Amendment right to counsel does not attach prior to the
taking of a breath since the test is scientific, and the delay in obtaining
counsel would interfere with the accurate appraisal of the defendant’s alcohol
content.
On the other hand, in HallvSecretary of State, 60 Mich App 431; 231 NW2d
396 (1975), the court did find that an accused drunk driver should have been
allowed an opportunity to call an attorney before deciding whether to submit
to a Breathalyzer test. The issue came up in the context of an administrative
proceeding to revoke the accused’s driving privileges for refusing to take the
Breathalyzer. The court determined that there is no Sixth Amendment right
to counsel afforded to an accused in a civil proceeding to revoke a person’s
privilege to drive.
Nevertheless, the court, in Hall, identified an inherent contradiction in OUIL
cases where the arrestee is advised of the Miranda right to counsel, but then
is denied an opportunity to consult with counsel prior to submitting to the
breath test. The accused is impaled on the horns of a civil/criminal dilemma
to take the breath test and find out later that such a decision was ill-advised,
or to refuse and face the loss of one’s driver’s license. Id. at 439-440. The
court found that even though there is no unqualified or absolute right to
counsel in these proceedings, a station house policy prohibiting a suspect
from making a phone call is not a commendable police practice. The court
felt that the governmental interest would be best served by allowing suspects
a phone call to their attorney. Because Hall was arbitrarily denied an
opportunity to call his attorney, the court found that his refusal to take the
Breathalyzer was reasonable and that the subsequent SOS revocation was
improper. Id.
It is important to distinguish the decisions in Holmberg and Hall. While both
indicate that an accused is not entitled to be represented by counsel prior to
34
CHAPTER 4: BREATH AND BLOOD EVIDENCE submitting to a breath test under the implied consent law, Hall provided a
limited remedy for an arbitrary refusal of the accused’s request to phone his
attorney before deciding whether to submit to a breath test. It appears that
based upon the court’s decision in Holmberg, the criminal case is not likely to
be impacted by denying the accused an opportunity to consult with an
attorney before deciding whether to submit to a breath test; however,
according to Hall, such a denial might lead to a “reasonable refusal” which
would prevent a revocation of the accused’s license for refusing to take the
breath test.
The Court of Appeals reaffirmed the rule that there is no right to counsel in
deciding to submit to a DataMaster test in Ann ArborvMcCleary, 228 MichApp
674; 579 NW2d 460 (1998). However, in McCleary’s case, the police did
allow the defendant who was in custody to speak with an attorney, but
consistent with department policy, the defendant and the attorney were not
afforded an opportunity for a private conference on the defendant’s decision
whether to take the Breathalyzer. The court found that since the defendant
had no right to counsel when making a decision to take a Breathalyzer, the
police were not required to provide the defendant and his attorney an
opportunity to privately confer on this matter. Citing Hall, the court said that
it is an opportunity to call an attorney that is protected in Hall, not the
opportunity for privacy. The court in McCleary declined to extend Hall to
require that the police provide an opportunity for an OUIL suspect and an
attorney to confer in private over the decision to take a Breathalyzer.
A related issue was decided by the Court of Appeals in PeoplevBurhans, 166
Mich App 758; 421 NW2d 285 (1988). In Burhans, the defendant was
arrested for OUIL. Approximately one hour after the defendant's arrest, the
police officer requested that she perform a series of physical sobriety tests.
The defendant's performance on those tests were videotaped which was the
standard procedure at the police department. At trial, the videotape of the
defendant's performance was submitted to the jury for their consideration.
The defendant was convicted and appealed, claiming among other things
that the procedures violated her Sixth Amendment right to counsel. On
appeal, the circuit court affirmed the conviction ruling that counsel's presence
at the physical sobriety tests is not required. The defendant then appealed.
The Court of Appeals found that the absence of counsel at the videotaping of
the physical sobriety tests did not violate the Sixth Amendment. The court
stated that "[t]he right to counsel does not extend to the gathering of physical
evidence from a defendant, such as blood tests or handwriting samples,
because there is a minimal risk of harm due to attorney absence." Id. at 764.
The court noted that due to the amount of time that it would take to procure
an attorney, the results of the sobriety tests would not yield an accurate
reflection of the defendant's intoxication. The court reasoned that the
35
OWI MANUAL videotaping serves to protect the defendant's interests during the
administration of the physical sobriety tests, much as an attorney would, and
therefore serves as "independent corroboration of how the sobriety tests were
conducted." Id.
DEFENDANT’S REFUSAL TO SUBMIT TO A BREATHALYZER TEST
In South DakotavNeville, 459 US 553; 103 S Ct 916; 74 L Ed 2d 748 (1983),
the United States Supreme Court held that admission of evidence of a
defendant's refusal to submit to a chemical test to determine BAC does not
offend the Fifth Amendment prohibition against compelled selfincrimination. However, despite the ruling in Neville, Michigan does not
permit a prosecutor to use a defendant's refusal to take a Breathalyzer as
substantive evidence of the defendant's guilt. Evidence of a refusal may only
be introduced for the limited purpose of establishing that such a test was
offered.
MCL 257.625a(10) specifically provides:
A person’s refusal to submit to a chemical test as provided in subsection (6)
is admissible in a criminal prosecution for a crime described in section
625(c)(1) only to show that a test was offered to the defendant, but not as
evidence in determining the defendant's innocence or guilt. The jury shall
be instructed accordingly.
This statute was upheld against a challenge that it was a legislative invasion
of the Supreme Court’s constitutional rule-making power under Const 1963,
art 6, § 5, in PeoplevMcDonald, 201 Mich App 270; 505 NW2d 903 (1993).
Also see PeoplevStratton, 148 Mich App 70; 384 NW2d 83 (1985), where the
court ruled that evidence of a refusal is not admissible in the prosecutor’s
case-in-chief, and People vKeskinen, 177 Mich App 312; 441 NW2d 79 (1989),
where the court found that admission of the defendant’s refusal in the
prosecutor’s case-in-chief was improper, especially where it followed from
the earlier erroneous admission of defendant’s alleged PBT test results.
The above authorities make it clear that evidence of a refusal is not
admissible on the question of guilt or innocence, but is specifically limited to
those cases where the prosecution seeks to show that a test was offered to the
defendant. See, for example, PeoplevWolverton, 227 Mich App 72; 574 NW2d
703 (1997), where the Court of Appeals cautioned against questioning
witnesses on the defendant’s initial refusal to take a breath test at a retrial of
the OUIL case. The court stated that such evidence is only admissible to
show that such a test was offered, but this was not “an issue of relevance” in
the original trial of the case. This will generally be limited to cases where the
defendant attempts to challenge the credibility or the competence of the
police officers involved in the arrest.
36
CHAPTER 4: BREATH AND BLOOD EVIDENCE InPeoplevDuke, 136 Mich App 798; 357 NW2d 775 (1984), the court held that
evidence of a defendant’s refusal to submit to a Breathalyzer test is proper in
situations where the defendant opens the controversy by a showing of lack of
credibility or competence of the police officer(s), and it is necessary to rebut
the defendant’s attack. The opinion in Duke provides:
The most obvious examples of circumstances where such evidence could be admitted are: a.
Where the defendant denies being given an opportunity to take a Breathalyzer test, b. Where the defendant claims that he took the test and the results were exculpatory, c.
Where the defendant challenges the competency of any of the testing done by the officer, or d. Where the defendant challenges the credibility of the officer. [136 Mich App at 803.] In accord, Keskinen, supra, and PeoplevWilliams, 172 Mich App 401; 431
NW2d 852 (1988).
Whenever it comes out during a trial that the defendant refused to take a
breath test, pursuant to MCL 257.625a(10), the judge is required to give a
limiting instruction on the use of the refusal evidence. Such an instruction is
contained in CJI2d 15.9, which provides:
Evidence was admitted in this case that the defendant refused to take a
chemical test. The defendant has the right to refuse to take such a test. If
you find that [he/she] did refuse, that is not evidence of guilt. Do not
consider such a refusal in reaching your decision.
ADMINISTRATIVE RULES
In recent years, Michigan uses the BAC DataMaster as the evidential breath
alcohol test instrument used to determine a suspect's bodily alcohol content
by quantifying the suspect's breath alcohol content. The DataMaster is a
Breathalyzer instrument which operates on the principles of infrared
spectroscopy. See, supra, pp 40-49, for a discussion of these principles.
Administrative rules have been promulgated by the Department of State
Police on the authority of MCL 259.190, MCL 257.625a, and MCL
281.1176, which govern the procedure for breath testing throughout the state
of Michigan. The administrative rules are set forth in 1994 AACS, R
325.2651 et seq. These rules have been established to ensure the accuracy of
37
OWI MANUAL breath test procedures, and a failure to meet the requirements contained in
the rules will preclude the use of such breath test results. PeoplevTipolt, 198
Mich App 44, 46; 497 NW2d 198 (1993); PeoplevBoughner, 209 Mich App
397; 531 NW2d 746 (1995). When the administrative rules are not followed,
the accuracy of Breathalyzer tests are deemed sufficiently questionable so as
to prevent the admission of the test results into evidence. Tipolt, supra;
Boughner, supra.
For example, in Boughner, the defendant pled guilty to operating a motor
vehicle with an unlawful blood alcohol content, third offense. Because the
defendant pled guilty to UBAC, the per se offense, evidence of the
defendant's unlawful bodily alcohol content was required to sustain a
conviction. The test results offered in Boughner were called into question
because of a possible violation of the applicable administrative rules.
The issue in Boughner revolved around the application of 1994 AACS, R
325.2655(1)(e), and the appropriate remedy for its violation. 1994 AACS, R
325.2655(1)(e) provides:
A person may be administered a breath alcohol analysis of an evidential
breath alcohol test instrument only after being observed for 15 minutes by
the operator before collection of the breath sample, during which period the
person shall not have smoked, regurgitated, or placed anything in his or her
mouth except for the mouthpiece associated with the performance of the
test. [Emphasis added.]
Boughner was videotaped for about thirty-five minutes before submitting to
the breath test. The court viewed the videotape and discovered that the
operator who was administering the test arrived at the police station only
eight minutes before the defendant was required to submit to the test. The
next thing that the court discovered by viewing the tape was that the
defendant was not continuously observed for the uninterrupted fifteenminute period required by the administrative rule. Approximately five
minutes before the test was administered, for about three to five seconds, the
officer's view of the defendant was obstructed. Additionally, the court noted
that during the course of the thirty-five minute tape, the view of the
defendant was often "briefly" obstructed when people passed in front of the
camera, and there were periods on the tape where the defendant had his
hands in his mouth or near his face. It was not possible to determine from
viewing the videotape whether or not the defendant actually placed
something in his mouth.
The court held that because the defendant was not continuously observed
during the entire fifteen-minute period, the law enforcement personnel did
not properly comply with the mandates of the administrative rule. Therefore,
the results of the breath test were suppressed. Because the defendant pled
38
CHAPTER 4: BREATH AND BLOOD EVIDENCE guilty to the per se offense, the defendant's conviction was vacated by the
Court of Appeals.
However, see PeoplevWujkowski, 230 Mich App 181; 583 NW2d 257 (1998), a
case which reemphasizes the point made in Willis, infra, “that the exclusion
of evidence was not necessarily the appropriate remedy for every violation of
an administrative rule. . . .” 583 NW2d at 259-260. In Wujkowski, supra, the
Breathalyzer operator was challenged because he failed to observe the
defendant for 15 continuous minutes as required by 1994 AACS, R
325.2655(1)(e). The officer testified that he continually observed defendant
except for approximately six seconds when the officer walked away from
defendant to check the machine again to determine if fifteen minutes had
elapsed. During the time the officer was away to check the time, a
corrections officer was with the defendant.
The court ruled that the evidence should not be suppressed because the
technical violation of R 325.2655(1)(e) was harmless error. The court stated,
in pertinent part:
In this case, however, as noted by the district court, there is no showing or even an allegation that defendant placed anything in his mouth or regurgitated. Therefore, there is no showing that the Breathalyzer test was inaccurate (indeed, defendant does not even allege inaccuracy) and we believe that suppression of the Breathalyzer test results is not an appropriate remedy in this case because any violation of the administrative rule was harmless. [583 NW2d 260.] The next administrative rule which merits some discussion is 1994 AACS, R
325.2655(1)(f), which provides, in pertinent part, that:
A second breath alcohol analysis shall be requested from the person being
tested and administered, unless the person refuses to give the second sample or a
substance is found in the person's mouth subsequent to the first test that
could interfere with the test result. Obtaining the first sample is sufficient to
meet the requirements of evidentiary purposes prescribed in section [MCL
257.625c]. . . . The purpose of obtaining a second sample result is to
confirm the result of the first sample. [Emphasis added.]
Nothing in this rule compels the police officer to actually obtain a second test
when the defendant refuses to provide a second sample.
In PeoplevTomko, 202 Mich App 673; 509 NW2d 868 (1994), the defendant
sought to have the results of a single Breathalyzer test suppressed on the
grounds that a second test was not administered, claiming that the
administrative rules specifically require a second test. The police officer
testified that he offered the defendant a second test, but the defendant said he
39
OWI MANUAL preferred not to take it and wouldn’t take it if he didn’t have to. In response,
the defendant acknowledged that he was offered, but not urged, to take a
second test.Id. at 675.
The Court of Appeals held that the admissibility of a breath test does not
hinge on the administration of a second test as long as the subject was offered
a second test. The purpose of the second test is to confirm the result of the
first sample. Id. at 676. If the subject prefers not to take a second test,
nothing in the statute or the administrative rule creates a duty on the part of
the police to urge the subject to take a second test. It is within the power of
the subject to decide whether a second test will be given. A second test may
not be avoided, however, if the police simply prefer not to administer one.
Id. at 677.
EQUIPMENT ACCURACY AND MAINTENANCE
The administrative rules outline the proper procedures for police departments
to follow in testing the accuracy of evidential breath test instruments. 1994
AACS, R 325.2653, governs equipment accuracy and provides, in pertinent
part, that:
(1) An evidential breath alcohol test instrument shall be verified for
accuracy at least once during each calendar week, or more
frequently as the department may require, by a class II, class IIIA,
or class IIIB operator. . . .
(2) A preliminary breath alcohol test instrument shall be verified for
accuracy at least monthly, or more frequently as the department
may require, by a class IIIA or class IV operator. . . .
(3) Approved evidential breath alcohol test instruments shall be
inspected, verified for accuracy, and certified as to their proper
working order by a certified class IV operator or the instrument
manufacturer's authorized representatives . . . within 120 days,
inclusive, of the previous inspection.
Failure to scrupulously honor the above rules will provide the defense with
an opportunity to attack the reliability of the breath test results and possibly
succeed in getting those results suppressed. For example, in PeoplevWillis,
180 Mich App 31, 35-36; 446 NW2d 562, 564 (1989), the Court of Appeals
found that while not every violation of the administrative rules would require
exclusion of BAC evidence, “where the administrative rules concerning the
administration of Breathalyzer tests have not been complied with, the
accuracy of those tests is sufficiently questionable as to preclude the test
results from being admitted into evidence.” Police departments need to
strictly adhere to the above rules and religiously maintain the appropriate
records, such that the accuracy and the reliability of the breath test
instrument can be established at trial. The results of the weekly, monthly,
and 120-day accuracy tests required by the administrative rules are to be
40
CHAPTER 4: BREATH AND BLOOD EVIDENCE recorded on monthly Evidential Breath Testing Logs and should be kept by
the police departments for up to eight years. Michigan State Police, Michigan
Breath Test Operator Training Manual, (January 1996), pp 5-4-5-5 & 11-1.
Compare Willis with the more recent decision in PeoplevRexford, 228 Mich
App 371; 579 NW2d 111 (1998), where the Court of Appeals found that a
violation of R 325.2653(1) did not provide grounds for exclusion of Rexford’s
BAC test results. Rexford was arrested on April 20, 1996, and given a
Breathalyzer test. It was later discovered that the police had failed to fully
comply with R 325.2653(1) because they had not run a weekly simulator test
on the Breathalyzer used for Rexford’s test during the “calendar week”
March 17-23, 1996. The court relied on its earlier statements in Willis and
disagreed with the defendant’s contention that it had created a “bright-line”
rule of suppression for every violation of one of the administrative rules
which govern alcohol testing in OUIL cases.
The court went on to find that the violation in the instant case was only a
technical violation of the rules. It was not a rule involving the administration
of the breath test, but rather a rule going to the accuracy of the test
instrument. The court found that the failure to run a single simulator test
within a 6-month period did not require suppression. The court ruled the
error was harmless because there had been no actual showing that the
apparatus or the particular test results were in any way inaccurate.
Accordingly, the court found that it was proper to deny suppression of
Rexford’s breath test results.
An important thing to remember is that the DataMaster operator is not an
expert on the instrument itself. The operator goes through certain training on
how to properly administer a breath test on the DataMaster. See 1994
AACS, R 325.2656 (detailing the requirements for operator certification).
However, the operator is not trained on the inner mechanics of the breath test
instrument. Thus, the operator is not competent to testify on such matters.
However, in an attempt to discredit the operator and cast doubt on the
operator’s testimony, the defense may seek to exploit this lack of knowledge
on cross-examination. The prosecutor must be prepared for such an attack.
The only two things that the operator should be asked to testify about are: 1)
how to properly administer the test, and 2) whether the operator adhered to
the prescribed procedures when administering the defendant's test. In order
to close the door on questioning that is clearly beyond the scope of the
operator's first-hand knowledge and experience, a prosecutor should seek to
limit the scope of the operator's direct testimony. Have the operator testify to
the certification procedures for operators of that particular level; elicit that
the operator was, in fact, certified to administer breath tests on the
DataMaster on the date in question; what procedures were followed; whether
such procedures were the standard procedures adopted by the police
41
OWI MANUAL department; and finally, have the operator testify as to the DataMaster's
readout indicating the defendant's BAC.
ISSUES SURROUNDING BLOOD TESTS
The primary issues surrounding blood tests include:
1. Search Warrants for Blood
2. Blood Taken for Medical Treatment
3. Warrantless Arrests
SEARCH WARRANTS FOR BLOOD
Whenever a person arrested for drunk driving refuses to submit to a chemical
test at the request of a police officer, the officer will want to obtain a search
warrant for a sample of blood to be used to determine the suspect’s bodily
alcohol content. The implied consent statute, MCL 257.625a(6)(b)(iv),
specifically provides:
If he or she refuses the request of a peace officer to take a test described in
subparagraph (i), [a chemical test of his or her blood, urine, or breath], a
test shall not be given without a court order, but the peace officer may seek
to obtain a court order.
In order to make it easier for an officer to obtain a search warrant for blood,
many prosecutors have adopted a standardized fill-in-the-blank search
warrant form to be used in OWI cases. See Appendix E for some examples
of blood alcohol search warrants.
Another way to facilitate the process of obtaining a search warrant for an
accused's blood is to follow the procedures for obtaining a search warrant by
fax machine. MCL 780.651(2) provides for the issuance of a search warrant
via electronic facsimile as follows:
(2) An affidavit for a search warrant may be made by any electronic or
electromagnetic means of communication if both the following occur:
(a) The judge or district court magistrate orally administers the
oath or affirmation to an applicant for a search warrant who submits an
affidavit under this subsection.
(b) The affiant signs the affidavit. Proof that the affiant has signed
the affidavit may consist of an electronically or electromagnetically
transmitted facsimile of the signed affidavit.
(3) A judge may issue a written search warrant in person or by any
electronic or electromagnetic means of communication. If a court order
required pursuant to section 625a of the Michigan Vehicle Code, Act 300 of
the Public Acts of 1949, being section 257.625a of the Michigan Compiled
Laws, is issued as a search warrant, the written search warrant may be
42
CHAPTER 4: BREATH AND BLOOD EVIDENCE issued in person or by any electronic or electromagnetic means of
communication by a judge or by a district court magistrate.
(4) The peace officer or department receiving an electronically or
electromagnetically issued search warrant shall receive proof that the
issuing judge or district court magistrate has signed the warrant before the
warrant is executed. Proof that the issuing judge or district court magistrate
has signed the warrant may consist of an electronically or
electromagnetically transmitted facsimile of the signed warrant.
In PeoplevSnyder, 181 Mich App 768; 449 NW2d 703 (1990), the Court of
Appeals upheld the use of a telephone/fax procedure for issuing a search
warrant, finding that the procedure complied with procedural due process.
In Snyder, the defendant was arrested for drunk driving and refused to submit
to a Breathalyzer test. The telephone/fax procedure was used to obtain a
blood sample for alcohol analysis. Snyder was decided prior to the enactment
of MCL 780.651(2); therefore, the decision does not address the specific
procedures set forth in the statute. However, the main contention in Snyder,
which the court rejected, was that because the officer was placed under oath
via the telephone, the procedure was invalid. This is addressed in the current
version of the search warrant statute. MCL 780.651(6) provides:
(6) If an oath or affirmation is orally administered by electronic or
electromagnetic means of communication under this section, the oath or
affirmation is considered to be administered before the judge or district
court magistrate.
The execution of a search warrant for blood can give rise to some additional
concerns. What do you do when the suspect refuses to cooperate with the
blood draw and makes it impossible for hospital personnel to obtain a
sample? The decision in PeoplevDavis, 209 Mich App 580; 531 NW2d 787
(1995), makes it clear that suspects who thwart the efforts of the police to
obtain a blood sample pursuant to a search warrant can be convicted of
resisting and obstructing an officer, contrary to MCL 750.479. See
PeoplevPhilabaun, 461 Mich 255; 602 NW2d 371 (1999), where the Supreme
Court unanimously reversed the Court of Appeals and decided that where a
defendant passively refused to comply with a search warrant for a blood
alcohol test without the use of physical resistance or abusive language, the
defendant’s actions constituted resisting and obstructing a police officer
under MCL 750.479. Also, consider the decision in PeoplevHanna, 223 Mich
App 466; 567 NW2d 12 (1997), where the Court of Appeals upheld the use
of a pain compliance device, commonly called “Do-Rite” sticks, to briefly
restrain a suspect arrested for OUIL in order to execute a search warrant for
a blood sample.
A prosecutor who uses a search warrant to obtain a blood sample for alcohol
analysis must be prepared to deal with the fact that the statutory
presumptions contained in the implied consent statute will not apply to the
43
OWI MANUAL bodily alcohol results so obtained. In PeoplevHempstead, 144 Mich App 348;
375 NW2d 445 (1985), the court explicitly held that where a defendant's
blood sample is obtained by a search warrant, the statutory presumptions
included in the implied consent statute are inapplicable. Id. at 447. Relying
on the decision in Hempstead, one court explained that "[t]he warrant
procedure exists independently of the testing procedure set forth in the
implied consent statute." MankovRoot, 190 Mich App 702, 704; 476 NW2d
776 (1991). In Snyder, supra at 770, the court reiterated the independence of
the warrant procedure and stated that "[w]hen a blood test is obtained on the
basis of a search warrant, the results of the test are not subject to evidentiary
or procedural restrictions set forth in the OUIL statute." See also,
PeoplevCords, 75 Mich App 415, 421; 254 NW2d 911 (1977) (indicating that a
warrant removes issues of consent present under the implied consent statute).
This does not mean, however, that the evidence of the defendant's bodily
alcohol content is precluded. Rather, the effect of not having the benefit of
the statutory provisions is that the prosecution will not be able to simply put
forth the results of a defendant's bodily alcohol tests and then point to the
applicable presumption included in the implied consent provisions in order to
establish its case against the defendant. Where blood is extracted pursuant to
a valid search warrant, expert testimony regarding the physiological effects of
the defendant's blood alcohol content must be put forth to establish the
defendant's degree of intoxication. Hempstead, 144 Mich App at 353. In
these cases, you will most likely need the services of a toxicologist as an
expert witness.
Where the defendant refuses to submit to a chemical test and the officer seeks
a court order, the failure of the peace officer to inform the accused of the
police department's policy of obtaining a search warrant to extract blood
when confronted with such a refusal is not grounds to suppress the results.
See PeoplevWurm, 158 Mich App 265, 269; 404 NW2d 235 (1987) (holding
that the results of a blood test need not be suppressed where the police officer
told the accused that if he refused to submit to a chemical test, a court order
could be obtained as provided by statute, not that an order would be
obtained).
After blood has been obtained pursuant to a search warrant for BAC testing,
it is not incumbent upon the police and prosecution to see to it that the blood
is preserved by the police. In People vJagotka, 461 Mich 274; __ NW2d __
(1999), the police had obtained a blood sample in an OUIL case. Pursuant to
departmental procedures, the blood sample was destroyed prior to the trial
on the OUIL charge. Upon learning that the blood had been destroyed, the
defendant sought suppression of the BAC test results, i.e., 0.18 grams of
alcohol per 100 milliliters of blood, for violating MCL 780.655; MSA
28.1259(5). The Supreme Court reversed the opinion of the Court of Appeals
44
CHAPTER 4: BREATH AND BLOOD EVIDENCE that destruction of the blood sample prior to trial violated the “search
warrant statute,” MCL 780.655; MSA 28.1259(5). The statute provides,
“The property and things so seized shall be safely kept by the officer so long
as necessary for the purpose of being produced or used as evidence on any
trial.” The Supreme Court held “blood samples themselves are not
‘produced or used as evidence’ at trial.” Jagotka at 279. Rather, it is the test
results that are produced and used as evidence at trial. So, the “search
warrant statute” does not apply the blood samples that were the subject of the
BAC test. The court held further “where the police have acted in good faith
pursuant to a reasonable policy and have not acted to destroy exculpatory
evidence, there is no denial of due process.” Id. at 280.
In People v Hyde, No. 282782 (Mich. App., September 1, 2009), the defendant
was arrested for OWI. He told the officer he was diabetic. The officer was
unaware of the provision in the implied consent law, MCL 257.625c, which
provides that a diabetic is not considered to have given consent for a blood
test. The officer requested a blood test, and told the defendant that if he did
not consent, his license would be suspended. The defendant consented rather
than lose his license, and the results were .13.
The Court held that taking the blood sample under the implied consent law
was improper due to the defendant’s diabetes. They further held that because
it was not authorized by the implied consent statute, the defendant’s blood
was unconstitutionally seized in violation of the 4th Amendment, and the test
results should be suppressed.
BLOOD TAKEN FOR PURPOSES OF MEDICAL TREATMENT
Another section of the implied consent statute which has been the subject of
litigation is the accident exception to the physician-patient privilege
contained in subsection MCL 257.625a(6)(e).
Subsection 625a(6)(e)
provides:
If, after an accident, the driver of a vehicle involved in the accident is
transported to a medical facility and a sample of the driver's blood is
withdrawn at that time for medical treatment, the results of a chemical
analysis of that sample are admissible in any civil or criminal proceeding to
show the amount of alcohol or presence of a controlled substance or both in
the person's blood at the time alleged, regardless of whether the person had
been offered or hadrefused a chemical test. The medical facility or person
performing the chemical analysis shalldisclose the results of the analysis to a
prosecuting attorney who requests the results for use in a criminal
prosecution as provided in this subdivision. A medical facility or person
disclosing information in compliance with this subsection is not civilly or
criminally liable for making the disclosure. [MCL 257.625a(6)(e); MSA
9.2325(1)(6)(e) (emphasis added).]
This subsection carves out a limited exception to the physician-patient
privilege. The benefit of this subsection is twofold. First, it may permit the
45
OWI MANUAL prosecutor to obtain the results of a driver's blood test and use it in a
subsequent OWI prosecution without having to obtain a search warrant.
Second, it protects the disclosing medical facility against any civil liability for
what would otherwise constitute a breach of the physician-patient privilege.
In PeoplevPerlos, 436 Mich 305; 462 NW2d 310 (1990), the Michigan
Supreme Court consolidated six cases in order to consider two issues dealing
with the accident exception. First, it looked at whether the accident
exception quoted above is constitutional, and second, whether disputed
blood test results obtained pursuant to this subsection should have been
suppressed.
The Michigan Supreme Court held that MCL 257.625a(9)(e) (now MCL
257.625a(6)(e)) is constitutional under the Fourth Amendment to the United
States Constitution and the corresponding provision of the Michigan
Constitution (Const 1963, art 1, § 11), as well as the Equal Protection Clause
of the United States Constitution and the corresponding provision of the
Michigan Constitution (Const 1963, art 1, § 2). Perlos, supra at 309.
The court first considered the validity of subsection (9) (currently 625a(6)(e))
in the face of a 4th Amendment challenge. The court reasoned that before
constitutional protections from searches and seizures can apply, state action
must be involved in the alleged search. However, in this case, the 4th
Amendment was not implicated when the defendants had their blood drawn
for medical purposes. Perlos, supra at 315.
Furthermore, the prosecutor's request and acquisition of blood test results
without a search warrant did not impermissibly infringe on the defendants’
4thAmendment privacy interests. Relying on the Supreme Court's reasoning
in KatzvUnited States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967), the
court determined that although the defendants may have had a subjective
expectation of privacy in their blood test results, under the circumstances, it
was not one which society would be willing to consider reasonable. Perlos,
supra at 318. Accordingly, the court found no 4th Amendment violation.
In its decision, the Perloscourt also considered and ultimately rejected an
equal protection challenge to the validity of subsection [625a(6)(e)]. The
court reasoned that the disparity in treatment between hospitalized victims
who are not under arrest and hospitalized victims who are under arrest does
not command exacting constitutional scrutiny because hospitalized victims
who are under arrest are not a "suspect" classification. Id. at 322.
Although the court upheld the constitutionality of the statutory provision, a
careful reading of the language creating this exception reveals that it carves
out a very narrow exception and permits the prosecutor to obtain the results
of a defendant's blood alcohol analysis in very limited circumstances. In
46
CHAPTER 4: BREATH AND BLOOD EVIDENCE Perlos, the Michigan Supreme Court specifically identified all of the
requirements necessary to invoke this subsection:
For the statute to apply
1. there first must be an accident,
2. a person must be taken to a medical facility,
3. the person must have been the driver of a vehicle involved in the
accident, and
4. medical personnel must order a chemical analysis, on their own
initiative, for medical treatment. [Perlos, 436 Mich at 328 (emphasis
added).]
In order for the exception to the physician-patient privilege to occur, there
must be an "accident" as required by subsection 625a(6)(e) and discussed in
Perlos, supra. See discussion, infra at 120-121. In most cases, the existence of
an accident for purposes of subsection 625a(6)(e) will not be difficult for the
prosecution to establish.
WARRANTLESS ARREST PROVISIONS
The following provisions have been added to their respective statutes and, in
effect, supplement the “accident exception” explained in MCL 764.15(1)(h)
and MCL 257.625a(1)(a).
MCL 764.15(1)(i) provides that a police officer may arrest a person without a
warrant when:
The person is found in the driver’s seat of a vehicle parked or stopped on a
highway or street within this state if any part of the vehicle intrudes into the
roadway and the peace officer has reasonable cause to believe the person
was operating the vehicle in violation of section 625(1), (3), or (6) or section
625m of Act No. 300 of the Public Acts of 1949 or a local ordinance
substantially corresponding to section 625(1), (3), or (6) or section 625m of
Act No. 300 of the Public Acts of 1949.
MCL 257.625a(1)(b) likewise provides that a police officer may arrest a
person without a warrant when:
The person is found in the driver’s seat of a vehicle parked or stopped on a
highway or street within this state if any part of the vehicle intrudes into the
roadway and the peace officer has reasonable cause to believe the person
was operating the vehicle in violation of section 625 or a local ordinance
substantially corresponding to section 625.
Had the Court of Appeals been able to rely on these provisions when it
decided Spencley, the result would have been different. Spencley was found
behind the wheel of his car, on the roadway, and the officer had reasonable
47
OWI MANUAL cause to believe that he was intoxicated. The arrest would have been legal,
and Spencley’s guilty plea conviction could have been affirmed.
The language in MCL 764.15(1)(i) and MCL 257.625a(1)(b) creates a bright
line rule for police officers, prosecutors, and judges to follow in determining
the validity of a warrantless arrest for an OWI that was not committed in the
officer’s presence. These provisions are supported by the underlying purpose
of the OWI statute, which is to prevent “the collision of a vehicle being
operated by a person under the influence of intoxicating liquor with other
persons or property.” People vWood, 450 Mich 399, 404; 538 NW2d 351
(1995). The police no longer have to wait until they witness an intoxicated
person driving or, worse yet, until that person has an accident before they are
able to make a warrantless arrest. An immediate arrest is now permitted
whenever the suspect’s vehicle is parked or stopped on a street or highway,
with any part of the vehicle intruding into the roadway, and where the police
have probable cause to believe the subject had been OWI.
OPERATING UNDER THE INFLUENCE OF DRUGS (OUID)
Michigan Vehicle Code 257.625(1):
(1) A person, whether licensed or not, shall not operate a vehicle upon a
highway or other place open to the general public or generally accessible to
motor vehicles, including an area designated for the parking of vehicles,
within this state if the person is operating while intoxicated. As used in this
section, "operating while intoxicated" means either of the following applies:
(a) The person is under the influence of alcoholic liquor, a
controlled substance, or a combination of alcoholic liquor and a controlled
substance.
(b) The person has an alcohol content of 0.08 grams or more per
100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine,
or, beginning October 1, 2013, the person has an alcohol content of 0.10
grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67
milliliters of urine.
Michigan Vehicle Code 257.625(8):
A person shall not operate a vehicle…if the person has in his or her body
any amount of a controlled substance listed in Schedule 1 under section
7212….or of a controlled substance described in section 7214(a)(iv) of the
public health code 1978 PA 368, MCL 333.7214.
Impairment of the ability to drive can be caused by many things other than
alcohol: prescription drugs, street drugs, over-the-counter medications,
industrial solvents, household chemicals, emotional upset or sleep
deprivation. Not all of these are subject to OWI charges! And although the
perception is that street drugs are the most problematic, the reality is that
prescription drugs are a much bigger problem. The most commonly seen
48
CHAPTER 4: BREATH AND BLOOD EVIDENCE drugs in Michigan OWI cases are marihuana and the prescription narcotics
carisoprodol (Soma), hydrocodone (Vicodin, Lorcet), alprazolam (Xanax),
diazepam
(Valium)
and
oxycodone
(Oxycontin).
Cocaine,
methamphetamine and Ecstasy are a long way behind these in frequency of
use. The prosecutor should keep in mind that even if a controlled substance
has a legitimate medical use and the defendant has a valid prescription, it still
has potential for abuse and impairment and its effects on driving should not
be discounted.
49
C HAPTER 5: T HE E LEMENTS One of the most often argued issues at trial is whether there was probable
cause that the defendant was operating a vehicle. To prove operation, the
People must prove that
1. the defendant was driving or
2. the defendant had actual physical control of the vehicle. 101
The seminal case dealing with the definition of “operating” is People v
Wood. 102 In that case, the Michigan Supreme Court defined operation as:
“Once 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 person continues to operate it until the vehicle is returned to a position
posing no such risk.” 103 The Wood court reiterated that the definition of
“operation” includes one who is in actual physical control of the motor
vehicle. 104
There are many cases addressing the operation issue from the perspective of
the definitions of what constitutes “operation.” 105
More often argued by defense counsel than whether a defendant’s actions
meet the definition of “operation”, however, are circumstances in which
there is no eyewitness to the defendant’s driving and the defendant was not in
the driver’s seat of the vehicle. We must remember that an officer, or any
101
CJI2d 15.2; MCL 257.13 (defining driver as “every person who drives or is in
actual physical control of a vehicle”); MCL 257.36 (defining “operator” as “every
person, other than a chauffeur” who is in actual physical control of a motor vehicle
upon a highway”).
102
People v Wood, 450 Mich399 (1995).
103
Id. at 403.
104
Id. (although overruling People v. Pomeroy, reaffirming the principal stated
therein “that a conscious person in a stationary vehicle might have “actual physical
control,” and thus operate it.”).
105
See, e.g.,People v Sides, 1998 WL 1992970 (Ct. of App. No. 200923; Feb. 6, 1998)
(holding that there was sufficient evidence to find that the defendant was operating a
motor vehicle when the vehicle was found in park partially on a roadway and had to
be towed for safety reasons because although the vehicle was not in motion nor at
risk of being moved, it had not been returned to a position of safety) (unpublished);
People v Lyon, 227 Mich App 599 (1998) (holding that the defendant was not
“operating” the vehicle in the presence of an officer because the defendant was
already outside the vehicle when the officer arrived. However, the court found that
there was probable cause to arrest the defendant for Operating While Under the
Influence because the defendant had been found by a passer-by asleep behind the
wheel of the vehicle that was pulled over on the side of an exit ramp on I-75 partially
blocking the exit ramp. Further, the defendant admitted to driving the vehicle to that
location.)
OWI MANUAL other person, has to observe a defendant driving, or in the driver’s seat in
order for there to be proof of “operation” because proof of operation can be
made by circumstantial evidence. 106
Moreover, probable cause that the defendant was operating can come from a
defendant’s statements. In cases involving a defendant’s statement or
statements that he or she had been operating the motor vehicle, it is
important to draw distinctions between defendant’s statements that are
“admissions” versus those that are “confessions.” Defense attorneys often
argue that the prosecution did not have corpus to show a crime before getting
to the defendant’s statement or statements in which he or she acknowledges
driving. This argument is without merit. The corpus delicti rule is designed
“to prevent the use of a defendant’s confession to convict him of a crime that
did not occur.” 107 The rule protects only against use of confessions prior to
the establishment of the corpus of a crime; it does not protect against the
admission of statements of facts made by a defendant. 108 Therefore, it is
106
See,People v Smith, 164 Mich App 767, 770 (1987) (concluding that the defendant’s
conviction for OUIL was valid because there was sufficient circumstantial evidence
that the defendant had been operating the vehicle prior to arrest); see also,People v
Lyon, 227 Mich App 599 (1998) (holding that the defendant was not “operating” the
vehicle in the presence of an officer because the defendant was already outside the
vehicle when the officer arrived, but finding that there was probable cause to arrest
the defendant for Operating while under the influence because the defendant had
been found by a passer-by asleep behind the wheel of the vehicle, which was pulled
over on the side of an exit ramp on I-75 partially blocking the exit ramp, and the
defendant admitted to having driven the vehicle to that location); People v Oumedian,
2003 WL 1904345, Court of Appeals No. 234758 (April 17, 2003) (rejecting
defendant’s argument that there were insufficient facts to conclude that he was the
operator of a vehicle involved in a roll-over accident because although the defendant
was observed outside of the accident vehicle when the police arrived – he was seen
inside the passenger-side of another vehicle --, he fled from the accident scene and
when he was apprehended later on the officer observed the strong odor of
intoxicants); Id. (“Although the police did not observe defendant in the act of
driving, such observations are not necessary to support the conviction of a defendant
for operating a vehicle under the influence of intoxicating liquor or operating a
vehicle with unlawful blood alcohol level. . . . Because a conviction may be upheld
where there is no direct evidence that a defendant was operating a vehicle, it is
apparent that a finding of probable cause may likewise be derived from
circumstantial evidence.”); People v Solmonson, 261 Mich App 873 (2004) (finding
sufficient circumstantial evidence of operating when the defendant was discovered at
3:45 am in the driver’s seat of vehicle that was parked outside white fog lines of
highway even though engine was off because the keys were in ignition and engine
was still warm).
107
People v Ish, 252 Mich App 115, 116 (2002).
108
People v Rockwell,188Mich App 405, 407 (1991) (“[The corpus delicti rule] is limited,
however, to admissions which are confessions, and not to admissions of fact which
to not amount to confessions of guilt.”); People v Oliver, 111 Mich. App. 734, 740
(1981), rejected in part on other grounds, (“[I]n Michigan, the corpus delicti rule is limited
to confessions.”).
52
CHAPTER 5: THE ELEMENTS important to make a distinction between statements that alone establish guilt
– confessions – and those that are merely assertions of fact – admissions. 109
Admissions can come into evidence regardless of whether corpus has been
established. Confessions cannot. 110 However, even a confession can come
into evidence without independent proof of each element of a crime. 111
Although there are no published cases directly on point that I am aware of –
dealing with a defendant’s admission to operation in an OWI case and
whether those statements are admissible under the corpus delicti rule – there
are two unpublished cases directly on point. Those cases conclude that such
statements acknowledging having operated a motor vehicle in an OWI
investigation are admissions of fact and not confessions of guilt and therefore
are admissible without violating the corpus delicti rule. 112
In People v Yamat, 475 Mich. 49 (2006), the district court was found to have
abused its discretion by refusing to bind defendant over for trial at the
preliminary examination because the district court applied an erroneous
definition of the term “operate.” Defendant was a passenger in the vehicle his
girlfriend was driving. As she drove, the couple argued. During the
argument, defendant grabbed the steering wheel and turned it. When the
109
People v Porter, 269 Mich 284, 290 (1934) (“Defendant does not distinguish between
confessions and admissions of fact. If the fact admitted necessarily amounts to a
confession of guilt, it is a confession. If, however, the fact admitted does not of itself
show guilt, but needs proof of other facts, which are not admitted by the accused, in
order to show guilt, it is not a confession, but an admission, and, therefore, is not
within the range of cases cited.”).
110
Id.
111
People v Ish, 252 Mich App 115, 117 (2002) (“Thus, and contrary to defendant’s
argument, it is not necessary that the prosecution present independent evidence of
every element of the offense before a defendant’s confession may be admitted.”);
People v Williams, 422 Mich 381, 391 (1985) (“It is an inaccurate and unwarranted
reading of the history and purpose of the corpus delicti rule that suggests the need for
independent proof of each and every element of the particular grade and kind of
common-law or statutory criminal homicide charged as a condition of admissibility
of a defendant’s confession.”).
112
See e.g., People v Timmreck, Mich Ct App No. 212484, 2000 WL 33417355 (July 7,
2000) (“The corpus delicti rule is limited to admissions which are confessions and not
to admissions of fact which do not amount to confessions of guilt. . . . In this case,
defendant admitted to the police at the scene that he hit a curb down the road, from
which a reasonable inference can be drawn that defendant was driving the vehicle.
However, this statement, alone, did not establish that defendant was under the
influence of alcohol at the time he hit the curb, or that he otherwise committed the
offense of OUIL. Therefore, defendant’s statement was an admission of fact (i.e.,
that he had been driving), not a confession of guilt. . . . The trial court properly
denied the defendant’s motion to suppress his statement.”) Id. at *2; People v Morris,
Mich Ct App No. 240028, 2003 WL 22138457, (Sept. 16, 2003) (holding that the
defendant’s statements made to the police and witnesses that he was driving the
vehicle did not alone establish his guilt of OUIL 3rd and therefore was factual
statements not confessions and were admissible under the corpus delicti rule).
53
OWI MANUAL defendant wrenched the steering wheel, the vehicle veered off the road,
struck a jogger and caused the jogger severe injuries. The prosecutor charged
defendant with one count of felonious driving.
However, the district court refused to bind defendant over for trial after the
preliminary examination. The definition of “operate” contained in the
Michigan Vehicle Code requires the exercise of “actual physical control”
over a motor vehicle, not exclusive control of a vehicle. Unlike the Court of
Appeals, the court could not conclude the statute effectively requires
exclusive control “of all the functions necessary to make the vehicle operate,”
because such a construction does not comport with the plain language of the
statutory definition.
As applied to the facts, defendant’s act of grabbing the steering wheel and
thereby causing the car to veer off the road clearly constituted “actual
physical control of a motor vehicle.” By using the proper statutory definition
of “operate,” the prosecutor clearly established sufficient probable cause
defendant violated MCL 257.626c. The judgment of the Court of Appeals
was reversed and the case was remanded for trial.
Practice Tip: Remember, even if the court wants not to draw the necessary distinction between admissions and confessions, a prosecutor can still prove corpus by circumstantial evidence. 113 113
See People v Limon, 4 Mich App. 440, 444 (1966) (noting that circumstantial
evidence may be used to establish the corpus delicti); People v Barron, 381 Mich 421,
426 (1968) (noting that direct proof of corpus cannot always be obtained and
therefore corpus can be established by circumstantial evidence); People v Harris, 64
Mich App 503, 507 (1975) (“The corpus delicti to a crime may be established by
circumstantial evidence and reasonable inferences.”).
54
C HAPTER 6: C HARGING THE D EFENDANT As a practical matter, whether to charge a defendant with OWI depends on:
1. How close the result is to the numbers set forth in the statute.
2. How impaired the suspect’s driving appeared to be.
3. How bad the suspect’s prior driving record is, and
4. How strong other evidence of intoxication is.
Practice Tip: A prosecutor should always charge the appropriate charge, not the maximum possible charge under any and all circumstances. A more difficult decision arises when a drunk driving accident results in
death or incapacitating injury. Although prosecutors traditionally charged
involuntary manslaughter for causing death by intoxicated driving, they can
now charge a person with a 15 year felony if that person causes the death of
another person while operating a motor vehicle under the influence of liquor
with an unlawful blood alcohol level, while visibly impaired, or with any
amount of a controlled substance in the body. Furthermore, with sufficient
aggravating factors, a drunk driver who causes death may be charged with
second-degree murder rather than manslaughter or OWI-causing death.
People v Goecke, 457 Mich 442, 579 NW2d 868 (1998).
Serious impairment of a body function is a five-year felony, and may be
charged when a defendant’s conduct in driving causes: 114
1. Loss of a limb or loss of use thereof;
2. Loss of a foot, hand, finger, or thumb or of use thereof;
3. Loss of an eye or ear, or of use thereof;
4. Loss or substantial impairment of a bodily function;
5. Serious visible disfigurement;
6. A comatose state that lasts for more than 3 days;
7. Measurable brain damage or mental impairment;
8. A skull fracture or other serious bone fracture;
114
See MCL § 257.58c.
OWI MANUAL 9. Subdural hemorrhage or subdural hematoma; or
10. Loss of an organ.
Felonious driving may be charged for drunk driving causing any other
incapacitating injury that does not fall within the above list. Note that double
jeopardy will not bar a defendant’s conviction for both felonious driving and
OWI. People v Crawford, 187 Mich App 344, 467 NW2d 818 (1991).
Note that the drunk driving must cause the injury or death in question.
Although People v Tims, 449 Mich 83, 534 NW2d 675 (1995) held that the
trial court had properly instructed the jury that the defendant’s conduct had
to be “a” proximate cause of death for defendant to be criminally liable, and
that the conduct did not have to be “the” cause of death, the statutory
language clearly requires some causal relationship between the driving and
death or injury.
MCL 257.625 establishes other crimes related to drunk driving including:
•
Operating a motor vehicle while under the influence of liquor or
while visibly impaired
•
Driving with any amount of controlled substance in the body
•
Driving with any amount of controlled substance in the body with a
person under age 16 in the vehicle
•
Allowing an intoxicated driver to operate a vehicle
o
•
Aggravated if the intoxicated driver causes the death or
serious impairment of a body function of another
Any person under the age of 21 to operate a motor vehicle while he
or she has any bodily alcohol content 115
Practice Tip: a defendant who pleads guilty to OWI cannot thereafter be charged in a new complaint with any other crime arising out of the defendant’s driving, where the first offense does not contain an element different from the elements in the second. When a suspect is charged under a city ordinance with drunk driving, and
the prosecution anticipates possible felony charges for death or serious
115
Note that this is not an OWI charge, but is rather an option to apply to the
underage drinker who is driving a motor vehicle, albeit not while sufficiently
intoxicated to be charged with a more serious crime.
56
CHAPTER 6: CHARGING THE DEFENDANT impairment caused by such drunk driving, it is critical for the county
prosecutor and city attorney to communicate regarding these cases. It is also
important for police officers to be aware of double jeopardy problems.
Practice Tip: Refusing to comply with a warrant, even without active, physical resistance, may support a charge of resisting and obstructing a police officer. Physical resistance, threats, and abusive speech are relevant facts to such a
charge, but none are necessary elements. A defendant who refuses to permit
blood to be drawn pursuant to a valid search warrant may be charged with
resisting and obstructing a police officer.
BLOOD ALCOHOL TEST RESULTS
Practice Tip: The prosecutor should establish some procedure to obtain blood tests when a drunk driving suspect refuses to take a chemical test. Blood alcohol test results, though not necessary for a conviction, make it
significantly easier to convince the jury that the defendant’s ability to operate
a motor vehicle was significantly impaired. It should be common practice for
police officers to obtain a search warrant to draw blood from an arrested
drunk driver who refuses to take a breath test. Preprinted forms will reduce
the time between arrest and obtaining a reliable blood sample available for
OWI prosecutions. Although there is not specific time limit in which blood
has to be drawn to be admissible, and delay in obtaining blood for testing
would go to the weight of the evidence and not its admissibility, 116 it is highly
advisable that any test be performed as soon as possible after the driving. The
greater the delay, the more unreliable the test result as an indicator of the
blood alcohol level when the suspect was driving.
Although the actual blood sample drawn is not “property” that has to be kept
until trial, it may be wise to keep such blood for a reasonable time, and to
advise the defense that the blood sample will be destroyed after that time.
Such a policy should counter any due process argument the defense makes
about the admissibility of blood test results.
Now test results of blood drawn pursuant to a search warrant are usually not
available for several days. Is it legitimate, then, to include a UBAL charge in
the warrant before obtaining the actual test results? If there are other
indications that the defendant was intoxicated, and it is thus reasonable to
116
People v Wager, 460 Mich 118, 594 NW2d 287 (1999).
57
OWI MANUAL conclude that the blood test will reveal a BAC of .08 percent or greater, it
may be permissible to include the charge in the warrant. Note, though, that if
the test result reveals a BAC of less than .08 percent, there is no longer a
viable case for UBAL, and if there is no drug screen to check for the presence
of controlled substances, the prosecutor has a serious evidentiary hurdle in
proving OWI.
Note that a suspect is statutorily entitled to an independent blood alcohol
test, conditioned on the defendant’s submission to the test requested by the
arresting officer. See MCL 257.625a(6)(d). If a trial court determines that the
defendant was deprived of his or her right to a reasonable opportunity to an
independent test, the trial court may instruct the jury that the defendant’s
statutory right was violated and that the jury may decide what significance to
attach to that fact; it does not require dismissal of the case. 117
Although the court held that a suspect arrested for OUIL has no right to
consult with counsel before deciding whether to submit to a blood alcohol
test, 118 it is advisable for the police to permit an arrested suspect to call an
attorney, simply because it is likely the attorney will advise the suspect to
take the blood alcohol test rather than face the results that will be obtained
pursuant to a search warrant.
REPEAT OFFENDERS
A prosecutor should vigorously prosecute repeat offenders of any crime, and
certainly repeat drunk drivers.
117
•
An OWI committed within 7 years of a prior OWI/Impaired
conviction is a misdemeanor and yields a sentence of a fine of not
less than $200.00 or more than $1,000.00 and imprisonment for not
less than 5 days or more than 1 year. Not less than 48 hours of the
term of imprisonment imposed shall be served consecutively. 119
License sanctions include driver's license revocation and denial for a
minimum of 1 year (minimum of 5 years if there was a prior
revocation within 7 years).
•
An OWI committed any time after any two prior OWI/Impaired
convictions is a felony and yields a sentence of a fine of not less than
$500.00 or more than $5,000.00 and imprisonment under the
jurisdiction of the department of corrections for not less than 1 year
or more than 5 years or probation with imprisonment in the county
People v Anstey, 476 Mich 436, 719 NW2d 579 (2006).
City of Ann Arbor v McCleary, 228 Mich App 674, 579 NW2d 460 (1998). The court
also held that if the police have a reasonable policy that disallows private meetings
between arrested OUIL suspects and visitors before administration of the test, a
private visit is not required simply because the visitor is an attorney.
119
MCL 257.625(9)(b)(i).
118
58
CHAPTER 6: CHARGING THE DEFENDANT jail for not less than 30 days or more than 1 year. 120 License
sanctions include driver's license revocation and denial if there are 2
convictions within 7 years or 3 convictions within 10 years. The
minimum period of revocation and denial is 1 year (minimum of 5
years if there was a prior revocation within 7 years).
A third offense is a felony, and so may be used along with other violations to
charge a defendant as a repeat offender. See MCL 257.625(25). Note that
defendants do not have the right to a jury trial to determine if the prosecution
can sustain its burden of proving prior convictions. 121
Defense counsel often challenges the validity of prior convictions in repeat
offender cases. Challenges via collateral attacks on the validity of prior
convictions have been limited by courts:
•
A plea-based conviction obtained in a defective plea-taking procedure
is not subject to a collateral attack unless the defendant was denied
his right to counsel or did not knowingly and intelligently waive his
right to counsel at a prior plea. Although defense attorneys may still
challenge a prior conviction through direct appeals or post-conviction
motions, they may not attack previous convictions used for
enhancement purposes without counsel defect. 122
•
A sentencing court may consider a defendant’s prior unscheduled
misdemeanor conviction when sentencing the defendant for a
subsequent offense as long as the previous uncounseled misdemeanor
conviction did not result in incarceration. 123
•
Even though the transcript of a prior conviction is frequently
unavailable, a defendant’s burden in challenging the validity of a
prior conviction is not satisfied simply because the records are
unavailable. If records were destroyed, the prior convictions are
presumed valid, not invalid. 124
120
MCL 257.625(9)(c)(i)-(ii).
People v Weatherhold, 214 Mich App 507, 543 NW2d 35 (1995).
122
People v Ingram, 439 Mich 288, 484 NW2d 241 (1992).See also People v Turrell, 440
Mich 895, 487 NW2d 757 (1992).
123
Nichols v United States, 511 US 738 (1994). This standard was adopted in Michigan
in People v Reichenbach, 459 Mich 109, 587 NW2d 1 (1998).
124
People v Carpentier, 446 Mich 19, 521 NW2d 195 (1994).See also People v Lucas, 188
Mich App 554, 582-583, 470 NW2d 460 (1991) (although defendant argued that
when the transcript of a prior felony plea was not available and thus precluded the
plea’s use in a habitual offender prosecution, the court held that since the defendant
did not allege that he was denied counsel and did not suggest how his rights were
violated in the prior plea, there was no issue).
121
59
OWI MANUAL Practice Tip: An out‐of‐state prior conviction may be used to charge a defendant with a second or third drunk driving offense if that conviction is governed by a law that substantially corresponds to the Michigan drunk driving law. 125 Under the Full Faith and Credit Clause of the U.S. Constitution, art IV, § 1,
the trial court should accept as valid the out-of-state prior conviction,
assuming that there is some evidence that the defendant either had counsel or
waived counsel for that prior plea. 126
Practice Tip: The prosecution may list more than two prior convictions in an OWI information filed in court. Listing multiple prior convictions may be advisable when it is possible for a
prior plea may be deemed invalid or when records from the prior plea are
difficult to reproduce.
Nevertheless, if one of the defendant’s prior convictions is held to be invalid,
but there is another unlisted prior conviction, it may be proper to substitute
that unlisted prior conviction for the listed, invalid one. 127
125
See MCL 257.625(25).
Note that although criminal cases have not applied the Full Faith and Credit
Clause to this issue, there have been civil cases which routinely apply this principle.
See Peters Prod, Inc v Desnick Broad Co, 171 Mich App 283, 429 NW2d 654 (1988).
127
See People v Manning, 163 Mich App 641, 415 NW2d 1 (1987).
126
60
C HAPTER 7: P RE ‐T RIAL I NVESTIGATION AND P REPARATION Preparation is the key to any OWI case; it will often make or break a case.
The most important aspect of preparing for trial is to investigate all the facts
relevant to the case. By having complete command of all the facts, a
prosecutor can develop theories, legal arguments, theme, and overall trial
strategy.
The primary objective in an OWI case is to prove that the defendant was
operating a motor vehicle at a time when the defendant's ability to operate in
a normal manner was substantially lessened and/or at a time when the
defendant’s bodily alcohol level was 0.08 grams or more per 100 milliliters of
blood, 210 liters of breath, or 67 milliliters of urine.
Typically, the evidence for an OWI case breaks down into five major
categories:
1.Manner of driving.
2.Physical and mental demeanor.
3.Performance of the sobriety tests.
4.Blood alcohol level or controlled substance in the defendant.
5.Statements made by the defendant.
WITNESS AND PRETRIAL PREPARATION
Practice Tip: The prosecutor should review the police report and carefully examine every item, paying particular attention to key facts that might have been omitted: facts that would normally be expected in a thorough police report. The following information should be contained in a thorough police report:
1. Charge and reason for initial stop. If the defendant was arrested for a
criminal charge other than OWI, the jury may be suspicious that the
OWI charge was added as an afterthought.
2. Age. Older persons generally receive juror sympathy, and poor
performance on the
coordination tests is not necessarily strong
OWI MANUAL evidence of someone who is under the influence of liquor. Jurors
often have little sympathy for the underage defendant.
3. Date and time arrested. It is easier to prove a case involving a 2:30 a.m.
Saturday arrest than a 9:30 a.m. Tuesday arrest.
4. Type of arrest. If the defendant is violent and physical force is
necessary to subdue him or her, then claims of "police brutality"
should be anticipated.
5. Time frame. Excessive or unexplained delays between arrest and
booking present potential problems.
6. Crash. If the police officer investigating a crash scene did not observe
the defendant operate the motor vehicle, a number of defenses are
possible.
7. Vehicle driven. The officer should remember the make, model, color,
and the year of the vehicle driven by the defendant to avoid, at the
very least, embarrassing himself or herself at the time of trial. In
addition, the defense frequently claims that poor driving can be
explained by the condition of the vehicle, especially if the vehicle is
old.
8. Medical problems. These may point to possible defenses such as if the
defendant did not inform the officer of any special medical problems
at the time of the arrest, and if the officer did not observe any
apparent disability or illness, the defendant's claim of medical
problems or disability can be impeached at trial.
9. Medical treatment. It is important to determine before trial whether the
defendant received any medical treatment or was taken to a medical
facility for any reason. If the defendant was seen by medical
personnel, a copy of the medical report should be obtained prior to
trial.
The documents may contain observations of signs of
intoxication, and a lack of such information also may be significant
in determining the strength of the evidence.
10. Statements made by the defendant. Any statement made by the
defendant indicating intoxication or that alcohol or drugs were
consumed can be extremely valuable. Typically, the defendant will
admit the consumption of some alcohol, often with the famous
answer: "I only had two beers."
a. The defendant often makes other helpful statements which
demonstrate intoxication. For example, the statements may
have been laced with obscenities. The officer should note the
62
CHAPTER 7: PRE‐TRIAL INVESTIGATION specific language used by the defendant. This type of
information will give the jury an overview of the defendant's
behavior and attitude at the time of the offense in contrast to
his or her demeanor in court.
b. The defendant may have stated where he was going when
stopped by the officers. The use of a map to locate where the
defendant was prior to the stop of the vehicle and the
defendant’s destination can effectively be used to demonstrate
inconsistencies in the defendant's testimony.
c. Finally, statements revealing when the defendant last slept
and for how long can be important. Alcohol generally affects
a tired person more quickly than one who is well rested.
11. Field sobriety tests. The report should indicate the defendant's
performance on a series of pre-demonstrated field sobriety tests.
These tests are relevant evidence of someone who is under the
influence of liquor or another substance.
12. Other witnesses to Defendant’s condition. This includes the booking
officer, EMTs, etc.
Practice Tip: The witnesses should be interviewed thoroughly prior to trial to assure the most effective presentation of the Peopleʹs evidence. Many OWI cases only involve police witnesses. The officer should read the
police report carefully prior to the interview to refresh his or her memory
regarding the incident. Any inconsistencies should be discussed during the
interview. The officer should be made aware of the importance of accurate
testimony on specific details including the defendant's clothing, the vehicle
driven, the relevant dates and times, the exact performance on the field
sobriety tests, and the exact words used by the defendant in making any
statements.
The officer should be prepared to answer all questions that will be asked
during direct examination. The prosecutor should review the officer's
training and experience in investigating OWI cases. If a rigorous crossexamination is anticipated, the prosecutor should remind the officer that his
or her professionalism during the cross-examination can be crucial. The
prosecutor should stress that the officer must be very familiar with the police
report, as many defenses rest upon inconsistencies between the report and the
testimony of the officer. The prosecutor should also let the officer know the
theme of the case and the trial strategy, and the strategy that the defense
63
OWI MANUAL attorney intends to employ at the trial should also be mentioned. Often the
prosecutor learns the strategy from pretrial conferences with the defense
attorney.
Finally, non-police witnesses should be interviewed prior to trial to ensure
they know the purpose of their testimony and to orient them to the trial
process. It is imperative to remember that non-police witnesses can be very
effective. Any observations made by a non-police witness that demonstrate
intoxication are quite persuasive to a jury and can be very useful in proving
the People's case.
Practice Tip: After interviewing all of the witnesses, the prosecutor should prepare an outline of the case. Since OWI trials happen so often, every prosecutor's office should have a
prepared form. There is no magic formula for organization. The following is
an example of what a fact sheet might look like:
64
CHAPTER 7: PRE‐TRIAL INVESTIGATION Name of Defendant:
Charge: Operating While Intoxicated (OUIL/BAC)
Date:
Location/Venue:
Elements of the Charge:
Facts of the Case:
Manner of defendant’s driving:
Defendant’s mental and physical condition:
Defendant’s performance on Field Sobriety Tests:
Statements made by the Defendant:
Chemical test results:
Witnesses:
Special Issues – Medical tests, Search Warrant for blood:
Exhibits:
After completing a basic fact sheet similar to this, a prosecutor can easily
prepare an outline setting forth the following:
1. Special questions for jury voir dire.
2. Opening statement and prosecutor’s theme of the case.
3. Direct examination:
a. Arresting Officer A.
b. Arresting Officer B.
c. DataMaster operator.
d. Other witnesses (i.e., deputy at the jail, eyewitnesses, etc.).
4. Questions for Cross-Examination based on anticipated defenses.
65
OWI MANUAL 5. Closing argument.
6. Special jury instructions or anticipated legal issues.
After preparing this outline, trial preparation is nearly complete, and the
likelihood of success is greater. The next step is to prepare for any pretrial
motions and to write specific voir dire questions for use when selecting the
jury.
DISCOVERY
Practice Tip: In our roles as prosecutors, we can use the laws governing discovery as both a sword and a shield. Discovery is a dynamic area of law. It is an area of law often overlooked by
many prosecutors. To fulfill our dual roles in the judicial system, prosecutors
need to understand how to use the laws governing discovery in both ways.
Prosecutors cannot effectively advocate for the People of the State of
Michigan without basic knowledge of this area of law. Furthermore,
prosecutors cannot ensure that defendants are given a fair trial if they do not
understand the rules of discovery. Prosecutors need to know what evidence
or information they are required to turn over to the defense. Does the
defendant’s charge affect discovery? What is e-discovery and why should
prosecutors care? Which court rules, statutes, and cases control discovery?
Finally, what are the consequences of violating discovery rules?
Unlike civil cases, discovery in criminal cases is limited. In civil case there is
“far reaching discovery limited only by the relevancy of the information
sought and whether it appears reasonably calculated to lead to the discovery
of admissible evidence.” 128 However, it is different in criminal cases. First,
there is no constitutional right to discovery. 129 Discovery in felony cases is
governed and limited by MCR 6.201. 130 There is very little discovery in
misdemeanor cases.
In Michigan, discovery or pretrial disclosure is governed by court rules, rules
of evidence, statutes, and case law. In this chapter the following topics will
be discussed:
1. Discovery in Felony Cases;
2. Discovery in Misdemeanor Cases;
3. Brady Material;
People v Greenfield, 271 Mich App 442, 447, 722 NW2d 254, 457 (2006).
People v Elston, 462 Mich 751, 765, 614 NW2d 595 (1994).
130
People v Phillips, 468 Mich. 583,588-599, 663 NW2d 78 (2005).
128
129
66
CHAPTER 7: PRE‐TRIAL INVESTIGATION 4. Rules and Statutes that Affect Discovery;
5. MCL 767.94: Does It Apply;
6. Privilege and Its Effect on Discovery;
7. Electronic Discovery.
8. Freedom of Information Act as a Discovery Tool;
9. Reciprocal Discovery; and
10. Practical Matters.
DISCOVERY IN FELONY CASES
Michigan Court Rule 6.201 governs discovery in felony cases. 131 MCR 6.201
explains what information the parties in a criminal case must provide upon
request. It also creates a list of additional information that prosecutors are
required to produce for the defense. This rule also prohibits the discovery of
other kinds of information. It allows parties to excise protected information
and to obtain protective orders for information. MCR 6.201 establishes the
rules for setting the timing of discovery, the use of copies, and the sanctions
for discovery violations. Finally, MCR 6.201 allows a party seeking
information or evidence not listed in this rule to ask the court for an order
requiring the opposing party to produce the evidence. 132
MCR 6.201 lists the mandatory information or information parties in a
criminal action must provide to one another in MCR 6.201(A). Subsection
(A) requires parties to provide:
1. Names and addresses of all lay and expert witnesses the party may
call at trial, or in the alternative make the witness available to the
other party for an interview (either party may amend their witness
list, without leave of the court, up to 28 days before the trial);
2. Any written or recorded statement made by a lay witness, other than
the defendant, who may be called at trial;
3. A curriculum vitae from any expert witness the party may call at trial
and either a report or a written description of the witness’s proposed
testimony including a description of the proposed testimony, the
expert witness’s opinion, and the basis for that opinion for any exert
witness the party may call at trial;
The Michigan Supreme Court stated in an administrative order that “. . .
discovery in criminal case heard in this state is governed by MCR
6.201.”Administrative Order 1994-10.
132
See People v Phillips, 468 Mich 583, 663 NW2d 463 (2003).
131
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OWI MANUAL 4. A description or list of any criminal convictions for every witness the
party intends to call at trial;
5. A description of and an opportunity to inspect any physical evidence
a party intends to introduce into evidence at trial. 133
Under this rule, a party showing good cause can obtain an order from the
court to test any physical evidence if the testing does not cause the
destruction of the evidence. 134 A party can also request a hearing to
determine how to allocate the cost of producing the requested evidence. 135
Both the prosecution and the defense must provide information listed above
to the opposing parties in every felony case in which it is requested.
In addition to the information discussed in MCR 6.201(A), prosecutors must
also produce the following kinds of evidence or information to the defense:
1. Any exculpatory information or evidence known to the prosecuting
attorney;
2. Any police report or interrogation records from the investigation,
except if the records involves a continuing investigation;
3. Any written or recorded statements by the defendant, codefendant, or
accomplice in the case, regardless of whether that person is not a
potential witness in the case;
4. Any affidavit, warrant, or return from a search or seizure in
connection with the case;
5. Any plea agreement, grant of immunity, or other agreement for
testimony in the case. 136
The distinction between subsection “A” and “B” in MCR 6.201 is twofold.
First, subsection “B” only applies to prosecutors. Second, prosecutors must
only produce evidence that is known to them. 137
MCR 6.201 also protects certain kinds of information or evidence from
discovery. MCR 6.201 states, “. . . there is no right to discover information
or evidence that is protected from disclosure by the Michigan or United
States Constitution 138 , statute, or privilege. 139 However, this section also
provides an exception to this rule. MCR 6.201(C) allows parties seeking
MCR 6.201(A).
MCR 6.201(A).
135
MCR 6.201(A).
136
MCR 6.201(B)(1-5).
137
MCR 6.201(B).
138
For example, a defendant’s Fifth Amendment Right to remain silent.
139
MCR 6.201(C)(1).
133
134
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CHAPTER 7: PRE‐TRIAL INVESTIGATION evidence protected by privilege to ask for a hearing to demand the production
of discovery protected by privilege. When the defense can demonstrate a
“good-faith belief” that evidence or information protected by privilege is
likely to contain information material to the defense, then the court shall
conduct an in camera review of the evidence to determine if such evidence
exists. 140 If the party asserting the privilege refuses to allow the in camera
inspection, the Court must suppress the privilege holder’s testimony. 141 After
conducting the in camera inspection, the court shall decide whether the
information must be given to the defense. If the privilege holder refuses to
disclose the court ordered privileged information, the court is instructed to
suppress the evidence. 142 Regardless of how the court rules on the
admissibility of the privileged information, it must make sufficient findings to
allow for appellate review and it shall seal and preserve the records of the
review for appeal. 143 Finally, the rule requires that any privileged records
disclosed to the opposing party must be kept in the possession of the party’s
attorney and shall be used only for the purposes set forth by the court. 144
MCR 6.201 also protects information from discovery using excision and
protective orders. When certain information, in a document for example, is
discoverable and other information is protected from discovery, a party
cannot merely refuse to disclose the document because part of it is not
discoverable. In this set of circumstances, the party must disclose the
discoverable information while excising the information not subject to
disclosure. 145 The party producing the information must inform the
requesting party that the information not subject to disclosure was excised.
The party requesting the information can file a motion to compel disclosure
of the excised information. 146 When such a motion is filed, the court must
hold an in camera hearing to determine if the reason for the excision is
justified. If the court allows the information to be excised, the court must
seal and preserve the record of the hearing for appellate review. 147
Courts can also issue protective orders. A party seeking a protective order
must file a motion and establish good cause for the protective order. 148
When considering if good cause exist, the court shall consider:
1. The parties’ right to a fair trial;
MCR 6.201(C)(2). For a more detailed discussion of privilege refer to the section
on privilege and discovery.
141
MCR 6.201(C)(2)(a).
142
MCR 6.201(C)(2)(b).
143
MCR 6.201(C)(2)(c)&(d).
144
MCR 6.201(C)(2)(e).
145
MCR 6.201(D).
146
MCR 6.201(D).
147
MCR 6.201(D).
148
MCR 6.201(E)
140
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OWI MANUAL 2. The risk of harm to any person;
3. Undue annoyance, intimidation, embarrassment, or threats;
4. Risk of evidence fabrication;
5. The need of secrecy of the identity of informants; or
6. Other law enforcement matters. 149
Courts are permitted to hold the hearings to determine good cause in camera.
If the court grants the protective order after an in camera hearing, it must
preserve and seal the record for appellate review. 150
The remaining subsections in MCR 6.201 set forth the rules for the timing of
discovery, the use of copies, continuing duty to disclose, modification of
MCR 6.201, and remedies available to the court for violations of this rule.
Both the prosecution and the defense must respond to request for discovery
under this rule within twenty one days. 151 Parties in a criminal matter have a
continuing duty to promptly disclose new information or material to other
parties. 152 When responding to a request for discovery under this rule, a
party’s obligation to provide photographs or documents is satisfied by
providing a clear copy of the item, unless the court orders production of the
original after a showing of good cause by the party seeking production of the
document or photograph. 153 Furthermore, a court may order parties to
disclose information not listed in MCR 6.201. A party seeking the disclosure
of evidence not required pursuant MCR 6.201 can ask the court to modify
MCR 6.201 to require the disclosure of the information. The moving party
must show good cause for ordering the evidence sought. 154 For example, the
prosecution wants disclosure of a report including the results from the private
testing of the defendant’s blood to determine her body alcohol content. The
defense refuses to produce the results because they do not intend to call the
analyst as a witness. Under MCR 6.201, the defense is under no obligation
to produce the report. However, the prosecution can file a motion asking the
Court to order the defense to turn over the report. If the prosecution can
show good cause to require the production of the report, the court can
“modify” MCR 6.201 and require the defense to produce the report. Finally,
if a party fails to comply with this rule, the court has the discretion to:
1. Order discovery or permit inspection of material not disclosed;
MCR6.201(E).
MCR6.201(E).
151
MCR 6.201(F).
152
MCR 6.201(H).
153
MCR 6.201(G).
154
MCR 6.201(I).
149
150
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CHAPTER 7: PRE‐TRIAL INVESTIGATION 2. Grant a continuance;
3. Prohibit a party from introducing evidence not disclosed; or
4. Enter any order it deems just under the circumstances. 155
Courts also have the discretion to sanction counsel if it finds the attorney
willfully violated the rules of discovery or the court’s discovery order. An
order enter under this section is only reviewable for abuse of discretion. 156
DISCOVERY IN MISDEMEANOR CASES
Discovery in misdemeanor cases is much simpler. First, the criminal rules of
procedure, MCR 6.201, do not apply to misdemeanor cases. 157 Accordingly,
there is no general discovery in misdemeanor cases in this state. However,
there are two kinds of evidence prosecutors must provide the defense.
First, prosecutors are required to provide copies of police reports to the
defense in misdemeanor cases. 158 The Michigan Court of Appeals has
repeatedly held that fundamental fairness requires that a copy of the police
report be provided to defendants in all criminal cases. 159 Failure to produce
the police report to the defense can result in the cases being dismissed. 160
Second, MCL 257.625a(8) requires the prosecution to provide a defendant
with the results of chemical test to determine her body alcohol content at
least two days before the day of trial. 161 Failure to provide the defense with
the results at least two days before trial can prevent a prosecutor from
admitting the test results into evidence. 162
DISCLOSING BRADY MATERIAL
In addition to the requirements of MCR 2.601 and the misdemeanor
disclosure requirements previously discussed, prosecutors also have a duty to
turn over to the defense any evidence favorable to the defendant. 163 The
holding in Brady v Maryland applies in both felony and misdemeanor cases. 164
The United States Supreme Court held, “the suppression by the prosecution
MCR 6.201(J).
MCR 6.201(J).
157
Administrative Order No. 1999-3.
158
See Bay County Prosecutor v Bay County District Judge, 109 Mich App 476, 484-6, 311
NW2d 399, 404 (1981); People v Denning, 140 Mich App 331,333, 364 NW2d 325,
327 (1985); City of Harbor Springs v McNabb, 150 Mich App 583, 585, 389 NW2d 135,
136. (1986).
159
Bay County Prosecutor v Bay County District Judge, 109 Mich App 476, 486, 311
NW2d 399, 404 (1981).
160
See Bay County Prosecutor v Bay County District Judge, 109 Mich App 476, 486, 311
NW2d 399, 404 (1981).
161
MCL 257.625a(8).
162
MCL 257.625a(8).
163
Brady v Maryland, 373 US 83, 83 SCt 1194 (1963).
164
373 U.S. 83 (1963)
155
156
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OWI MANUAL of evidence favorable to an accused upon request violates due process where
the evidence is material whether to guilt or to punishment, irrespective of the
good faith or the bad faith of the prosecution.” 165 The disclosure required by
due process in Brady applies to any evidence that might lead a jury to
entertain reasonable doubt. 166 It applies to both exculpatory evidence,
evidence favorable to the defense, and impeachment evidence, evidence that
would affect the credibility of a witness. 167 The Court in Lester reasoned,
“Impeachment evidence as well as exculpatory evidence falls within the
Brady rule because, if disclosed and used effectively, such evidence may make
the difference between conviction and acquittal.” 168 As a result, the
prosecution has a duty to disclose any information that would have a
material effect on the credibility of her witnesses. 169
If a prosecutor fails to disclose Brady material to the defense, the defense
must prove four things to establish a violation of Brady:
1. “The state possessed evidence favorable to the defendant;”
2. “He (the defendant) did not possess the evidence nor could he have
obtained it himself with any reasonable diligence;”
3. “The prosecution suppressed the favorable evidence.”
4. “That had the evidence been disclosed to the defense, a reasonable
probability exists that the outcome of the proceedings would have
been different.” 170
Even if there is a violation of Brady, a prosecutor’s failure to disclose
impeachment evidence requires automatic reversal of a conviction when the
court finds the evidence not turned over to the defense was material. 171
Evidence is material “only if there is reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would
have been different.” 172 Reasonable probability, as it relates to this topic, is
defined as “a probability sufficient to undermine the confidence in the
outcome.” 173 Using these definitions, evidence is deemed material if
admission of the suppressed evidence would undermine confidence in the
verdict. 174 Generally, impeachment evidence is material when the witness’s
Brady v Maryland, 373 U.S. 83, 83 SCt 1194 (1963).
Id. at 280.
167
People v Lester, 232 Mich App 262, 280, 591 NW2d 267, 276 (1998).
168
Id. at 280-81.
169
Id. at 281.
170
Id. at 281.
171
Id. at 281.
172
Id. at 281.
173
Id. at 282; citing United States v Bagley, 473 US 667, 676, 105 SCt 3375 (1985).
174
Id. at 282.
165
166
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CHAPTER 7: PRE‐TRIAL INVESTIGATION testimony is the only evidence connecting the defendant to the crime.
Additionally, impeachment evidence is material when the witness’s
credibility was so affected by the impeachment evidence that it would
undermine a critical element of the prosecution’s case. 175 However,
impeachment evidence is not material where the testimony of the witness to
be impeached is corroborated by other evidence or when the impeachment
evidence would be used to impeach a witness whose credibility is already
questionable. 176
RULES AND STATUTES THAT AFFECT DISCOVERY
There are other statutes and rules that govern the pretrial disclosure of certain
kinds of information in criminal cases. These statutes and rules of evidence
require pretrial notice of evidence a party wants to admit into evidence
during the trial. MCL 257.625a, MRE 404(b), MCL 768.20, MRE 803, and
MRE 804 are examples of such rules and statutes. The disclosure
requirements of these rules and statutes apply only to the subject matter
controlled by the rule or statute. Failing to follow the requirements of any of
these rules or statutes can prevent the prosecution or the defense from
admitting evidence during an OWI trial.
The statute that most directly affects an OWI case is MCL 257.625a(8). As
discussed, this statute requires the prosecution to provide the defendant the
results of any chemical test used to measure her body alcohol content. 177 It
requires the results be given to the defendant’s attorney upon written
request. 178 The results must be given to either the defendant or her attorney at
least two days before the day of trial. 179 The Michigan Court of Appeals held
in People v Lounsbery that MCL 257.625a(8) does not require the prosecution
to provide the defense with a copy of the toxicology report, only the test
results. 180 Failure to provide the test results can result in the suppression of
the evidence at trial.
Michigan Rule of Evidence 404(b) requires the prosecutors to provide notice
of any “other bad acts” evidence to the defense before the beginning of
trial. 181 MRE 404(b) allows the prosecution to admit evidence of other bad
acts, as long as, the evidence is not being admitted to prove the defendant
acted in conformity with that bad behavior. 182 The evidence of other bad acts
will not be admitted if the probative value of the evidence is substantially
Id. at 282.
Id. at 282.
177
MCL 257.625a(8).
178
MCL 257.625a(8).
179
MCL 257.625a(8).
180
246 Mich App 500, 633 NW2d 434 (2001), MCL 257.625a(8)Supra.at 508-9.
181
MRE 404(b)(2).
182
MRE 404(b)(2).
175
176
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OWI MANUAL outweighed by unfair prejudice. 183 The prosecution can admit other bad acts
evidence as proof of things like absence of mistake, identity, common scheme
or system of doing an act, and other issues. 184 The prosecution must give the
defense notice of its intent to introduce this kind of evidence and of the
general nature of the evidence to be introduced. 185 The trial court has the
authority to waive the pretrial notice on good cause shown. 186 Failure to give
the required notice can lead to suppression of the evidence.
Michigan Rule of Evidence 803 provides exceptions to the hearsay rule.
Hearsay is an out of court statement offered to prove the truth of the matter
asserted. 187 While hearsay is generally not admissible, there are several
exceptions to the hearsay rule. MRE 803(24), the catch all provision, allows
statements to be admitted even though they do not fall under one of the
twenty three specific exceptions listed in MRE 803. Statements can be
admitted under this exception if three requirements are met:
1. The statement is offered as evidence of a material fact;
2. If the statement is more probative on the fact it is offered to prove
than any other evidence that can be obtained through reasonable
efforts; and
3. If the purposed of the Michigan Rules of Evidence and the interest of
just are best served by the admission of the statement into evidence. 188
The party seeking to admit the out of court statement under this exception
must provide notice of her intent to admit the statement and the particulars
of the statement sufficiently before the hearing or trial to allow the opposing
party a “fair opportunity” to prepare to meet the statement. 189 This
exception can valuable in OWI cases. For example, a statement by a witness
that the defendant was the driver made to another witness could be your best
evidence on the issue of identity. If the court decided to admit the statement
into evidence pursuant to MRE 803(24), the statement could none the less be
excluded from evidence if the prosecutor does not inform defense of her
intent to introduce this evidence at trial. Finally, defense attorneys will use
this rule to attempt to introduce evidence. If the defense has not given the
prosecution pretrial notice of their intent to introduce a statement under this
rule of evidence, the statement can be suppressed by the court.
MRE 404(b).
MRE 404(b)(1).
185
MRE 404(b)(2).
186
MRE 404(b)(2).
187
MRE 801(c).
188
MRE 803(24)
189
MRE 803(24).
183
184
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CHAPTER 7: PRE‐TRIAL INVESTIGATION Similarly, Michigan Rule of Evidence 804(7) has a notice requirement. MRE
804(7) like MRE 803(24) is a catch all provision allowing for the admission
of hearsay statements not meeting the specific exceptions of MRE 804. 190
Statements admitted under MRE 804(7) must meet the same requirements of
trustworthiness and materiality as statements admitted under MRE
803(24). 191 Finally, the party trying to admit a hearsay statement pursuant
MRE 804(7) must provide the opposing party notice sufficiently in advance
of trial or hearing to allow the opposing party time to prepare to meet the
statement. 192
Another statute requiring pretrial notice is MCL 768.20. MCL 768.20
requires defendants to provide the prosecution notice of an alibi defense. 193
This statute requires the defense to provide the prosecution notice of the alibi
defense within fifteen days after the arraignment, but not less than ten days
before trial, or as the trial court directs. 194 The defense must provide a
description of where the defendant claims to have been at the time the crime
was committed and the names of witnesses to be called by the defendant to
establish the defense. 195 Once the prosecution has been given notice of the
alibi defense pursuant MCL 768.20, the prosecution must give the defense
notice of the witnesses it intends to call to rebut the alibi defense. 196 The
prosecution must provide this information to the defense within ten days
after receiving notice of the alibi defense, but not longer than five days before
trial, or as ordered by the trial court. 197 Failure to adhere to these
requirements can lead to the suppression of this evidence at trial.
It is important for prosecutors to know there are statutes and court rules that
impose pretrial disclosure requirements on the defense and prosecution.
Several examples of such statutes and rule are described above. Failure to
follow the requirements of such rules and statues can prevent the prosecution
from admitting evidence needed to convict defendants at trial. Furthermore,
prosecutors can use these rules to prevent the defense from ambushing the
prosecution at trial.
MCL 767.94A
MCL 767.94a requires defendants to disclose the following information to
the prosecution upon request:
MRE 804(7).
MRE 804(7).
192
MRE 804(7).
193
MCL 768.20.
194
MCL 768.20.
195
MCL 768.20(1).
196
MCL 768.20(2).
197
MCL 786.20(2)
190
191
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OWI MANUAL 1. The name and last known address for witnesses the defense intends
to call at trial except for the Defendant and any witness listed on the
prosecution’s witness list;
2. The nature of any defense dependent upon expert testimony;
3. Any report or statement made by or prepared by any witness, lay or
expert, other than the defendant, that relates to testimony the
defendant intends to offer at trial.
4. Any book, paper, document, photograph or tangible object that the
defendant intends to offer in evidence or that relates to the testimony
of a witness, other than the defendant, the defendant intends to call at
trial. 198
The statute requires defendants to respond to discovery request made
pursuant this statute not later than ten days before trial. 199 Failure to disclose
information required under this statute would prevent the defendant from
admitting that evidence at trial. A motion to suppress evidence filed
pursuant to this statute can be filed before trial. 200
On November 16, 1994, the Michigan Supreme Court entered an
administrative order stating that discovery, in Michigan criminal cases, is
“governed by MCR 6.201 not by 767.94a.” 201
PRIVILEGE AND DISCOVERY
MCR 6.201(C) addresses the issue of privilege and discovery. There is no
right to discover evidence or information that is protected by privilege. 202
However, upon request, courts can conduct an in camera review of privileged
information or evidence. If a defendant can demonstrate “a good faith belief,
grounded in articulable facts, that there is a reasonable probability that
information protected by privilege is likely to contain material information
necessary to the defense,” then the court should conduct an in camera review
of the information sought. 203 Material information has been defined as
information that would create a reasonable probability of a different result if
it were admitted at trial. 204 A reasonable probability of a different result
exists when suppression of the privileged information or evidence
undermines the confidence in the verdict. 205 If the privilege holder refuses to
MCL 767.94a(1).
MCL 767.94a(2).
200
MCL 767.94a(3)
201
Administrative Order No. 1994-10.
202
MCR 2.601(C)(1).
203
MCR 2.601(C)(2).
204
People v Fink, 456 Mich 449, 454, 574 NW2d 28, 31 (1998).
205
Id. at 454.
198
199
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CHAPTER 7: PRE‐TRIAL INVESTIGATION release the information for an in camera inspection by the court, the court
shall suppress or strike the privilege holder’s testimony. 206 If the court finds
that there is evidence that must be turned over to the defense, despite the
privilege, the court shall order it disclosed to the defense. 207 If the privilege
holder refuses to turn the information over to the defense, the privilege
holder’s testimony shall be suppressed or stricken from the record. 208
Even though MCR 2.601 does not apply in misdemeanor cases, defendants
can still seek an in camera review of the privileged information or evidence.
In People v. Stanaway, the Michigan Supreme Court held, “in an appropriate
case there should be available the option of an in camera inspection by the
trial judge of the privileged record on a showing that the defendant has a
good-faith belief, grounded on some demonstrable fact, that there is a
reasonable probability that the records are likely to contain material
information necessary to the defense. 209 The Court in Stanaway explained
that the in camera review by the trial court as a useful intermediate step
between full disclosure and total nondisclosure. 210
ELECTRONIC DISCOVERY
Electronic discovery is increasingly relevant as larger amounts of information
are being created, stored, and communicated electronically.
More and
more, parties in legal actions are requesting information in its electronic
form. They are asking for documents in the format in which they were
created and stored or its “native form.” Parties are seeking the metadata
associated with the information they seek. 211 Furthermore, prosecutor’s
offices around the state are going paperless. The less paper your office uses,
the more likely it is you will have to provide electronic discovery. This
section will address the basics of electronic discovery. It will discuss the
recent amendment to the Michigan Civil Rules of Procedure. It will consider
how the amendments to the civil rules of procedure affect criminal cases.
OWI cases may be an area where electronic discovery is introduced in
criminal cases. For example, accident reconstructionists use computer
programs to recreate how accidents occurred. Defense attorneys will ask for
the information from the reconstructionist in its native format with metadata?
The defense will request a copy of all emails between a prosecutor and police
MCR 2.601(C)(2)(a).
MCR 2.602(C)(2)(b).
208
MCR 2.602(C)(2)(b).
209
People v Stanaway, 446 Mich 643, 677, 521 NW2d 557, 574 (1994).
210
Id. at678.
211
Metadata is information stored in computers about the documents created and
stored within the operating system. Examples of metadata include when the
document was created, when it has been accessed, when it has been changed, and to
whom it has been sent. See Williams v. Sprint/United Management Co., 230 F.R.D.
640, 646 (D. Kan. 2005)
206
207
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OWI MANUAL agencies regarding the DataMaster used in a particular case? Like it or not,
this is an issue prosecutors must be prepared to handle.
The basics of electronic discovery are exactly that: basic. Society’s push to
go green, eliminate “snail mail”, and reduce the cost of storing information
has created a new way of dealing with information. Electronic discovery is
the legal system’s attempt to keep up with the new system. When documents
are created electronically, the document is created in a particular operating
system. Those documents can then be stored in a variety forms using
different systems. 212 Every electronic document has metadata that details
information about the document. 213 Electronic discovery focuses on the
production of documents created and or stored electronically, the form in
which the information will be transferred in discovery, and the information
about the creation, altering, or communication of the electronic document. 214
Effective January 1, 2009, the Michigan Rules of Civil Procedure were
amended to include electronic discovery. The civil rule governing discovery
is section 2.302. The following sections of MCR 2.302 were changed to
include electronic discovery:
1. MCR 2.302(B)(1): Scope of Discovery, now includes “electronically
stored information” to the list of information and evidence subject to
discovery under the civil rules; 215
2. MCR 2.302(B) (5): Electronically Stored Information was added to
subsection “B”.
This section requires parties to preserve
electronically stored information for discovery. It goes on to state,
“that absent exceptional circumstances, a court may not impose
sanctions . . . on a party for failing to produce . . . information lost as
a result of the routine, good-faith operation of an electronic
information system;” 216
3. MCR 2.302(B)(6): Limitation of Discovery of Electronic Materials,
was added to subsection “B”. This section allows a party to refuse to
produce electronically stored information to the opposing party from
sources that are identified as “not reasonably accessible” due to cost
or undue burden. The party seeking the electronic information can
See Karen H. Hassevoort, “Data Production Under New Federal Rules: Choosing
the Right Form,” The Litigation New Letter, State Bar of Michigan, Winter 2007.
213
Metadata is information about the document created or stored electronically.
Metadata will tell a person when a document was created, when it was altered or
worked on, and when and how it was sent to other electronically.
214
Will the documents or information be transferred using hard or paper copies, in an
agreed upon format accessible to both parties, or in the format in which the
document was created, its “native form”?
215
MCR 2.302(B)(1).
216
MCR 2.302(B)(5).
212
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CHAPTER 7: PRE‐TRIAL INVESTIGATION file a motion to compel discovery. At the motion, the party refusing
to provide the information must “show that the information is not
reasonably accessible because of undue burden or cost.” If this
showing is made, the court can still order the electronic information
be produce if the requesting party shows good cause. Finally, the
court can specify the conditions 217 of discovery. 218
4. MCR 2.302(B)(7): Information Inadvertently Produced, was added to
subsection “B”.
If a party producing mistakenly produces
information subject to privilege or the information is protected as trial
preparation, the party seeking protection may notify all parties
receiving the information of the claim of protection and the basis for
it. Parties receiving this notice must promptly “return, sequester, or
destroy” the information and any copies made of it. Furthermore,
parties may not disseminate or use the information until the claim of
protection is resolved. The party receiving the information may
submit it to the court under seal to determine the validity of the
claim. 219
With the amendments to MCR 2.302, electronic discovery is clearly a part of
civil practice. The question becomes: do the civil rules of procedure affect
criminal cases?
The applicability of the civil rules of procedure in criminal cases is controlled
by MCR 6.001. Matters of procedure in criminal cases cognizable in the
circuit court are governed by MCR 6.000 through MCR 6.500. 220 The rules
of civil procedure apply in cases governed by the Michigan Rules of Criminal
Procedure except when:
1. otherwise provided by rule or statute;
2. it clearly appears that they apply to civil actions only; or
3. when a statute or court rule provides a like or different procedure.” 221
MCR 6.001 excludes the civil rules of procedure from criminal cases where a
rule or statute excludes the application of the civil rules of procedure or when
the criminal rules of procedure have a like or different rule of procedure.
Under the Federal Rules of Civil Procedure, after which the amendments to MCR
2.302 are modeled, courts can shift the cost of producing electronic data to the party
requesting the information or order that the parties split the cost of discovery.
Convad Communications Company v Revonet Inc., 254 FRD. 147; 2008 US Dist Lexis
104204, 10-14.
218
MCR 2.302(B)(6).
219
MCR 2.302(B)(7).
220
MCR 6.001(A).
221
MCR 6.001(D).
217
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OWI MANUAL Discovery in criminal cases is governed by MCR 6.201. In addition to MCR
2.601, the Michigan Supreme Court stated in an administrative order that
discovery in criminal cases heard in this state are governed by MCR 6.201 222
Therefore the civil rules of procedure do not apply in criminal cases.
THE FREEDOM OF INFORMATION ACT
The Freedom of Information Act (FOIA) is a mechanism by which people
can learn about the workings of the government and its officials through the
release of information to the public. 223 The Act “embodies” the public policy
of granting the public access to government information. The goal of the Act
is to give citizens information about their government and its activities, as
well as, allowing people to hold public officials accountable for their
actions. 224 The Freedom of Information Act is codified in MCL 15.231
through MCL 15.244. The FOIA is a complex area of law requiring
expertise to successfully navigate. When a prosecutor receives a FOIA
request as part of discovery or at any other time, she should refer the request
to the FOIA Coordinator in either her office or county.
As it relates to discovery in criminal cases generally and OWI cases
specifically, the FOIA can be used by the defense to obtain pretrial disclosure
of information subject to the limitations imposed by the Act itself. For
example, the Freedom of Information Act does exclude or exempt public
bodies from disclosing information relating to a “civil action in which the
requesting party and the public body are parties,” 225 However, the Act does
not extend this exemption to other forms of litigation. For example, the
exemption for civil litigation found in MCL 15.243(1)(v) does not apply to
arbitration cases. 226 This exemption does not apply to civil infractions or
criminal cases. 227 The fact the requesting party is involved in a criminal
matter does not, in and of itself, allow prosecutors to deny a FOIA request.
Similarly, the FOIA does not govern what is discoverable in criminal
actions. 228 In short, the Freedom of Information Act does not conflict with,
Administrative Order No. 1994-10.
Proctor v White Lake Township Police Department, 248 Mich App. 457, 466, 639 NW
2d 332, 338 (2002).
224
Id. at 466.
225
MCL 15.243(1)(v).
226
Kent Co. Deputy Sheriff’s Ass’n v Kent Co. Sheriff, 463 Mich 364 n 18, 616 N.W.2d
677 (2000) (the Supreme Court of Michigan ruled that exemption found at MLC
15.243(1)(v) did not apply to an arbitration case because an arbitration case is not a
civil action as defined in MCL 2.102.)
227
Ritzer v St. Joseph County Sheriff’s Department, 2003 WL 21350369, 5 (Mich App
2003).
228
People v Broaden, 2005 WL 3416117 (Mich App 2005), see also Ritzer, at P4.
222
223
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CHAPTER 7: PRE‐TRIAL INVESTIGATION supplement, or displace the Michigan Court Rules governing discovery in
criminal cases. 229
If a prosecutor receives a Freedom of Information Act Request as part of
pretrial disclosure from defense counsel, she should not assume it does not
apply to criminal cases. Prosecutors should not assume it is duplicative of
the defendant’s discovery request. Prosecutors must respond to FOIA
requests. If a prosecutor receives a FOIA request as part of prosecuting an
OWI case, she should take it to the FOIA Coordinator in her office or
county immediately.
RECIPROCAL DISCOVERY
Reciprocal discovery in felony cases is governed by MCR 2.601.The
prosecution is entitled to certain information pursuant MCR 2.601. MCR
2.601(A) requires both parties in criminal actions to produce:
1. Names and addresses of all lay and expert witnesses;
2. Any written or recorded statement pertaining to the case by a lay
witness whom the party may call at trial, except for the defendant;
3. A curriculum vitae for any expert witness that may testify and a
written report from that witness or a description of the expert
witness’s proposed testimony including the expert’s opinion and the
basis for the opinion;
4. Any criminal record a party may use to impeach a witness at trial;
5. A description or list of convictions known by a party of any witness
that party intends to call at trial;
6. A description of any physical tangible evidence the party intends to
introduce at trial and an opportunity to inspect that evidence. 230
Ritzer v St. Joseph County Sheriff’s Department, 2003 WL 21350368, P4 (Mich App
2003); citing Central Michigan Uni v Supervisory-Technical Ass’n, MEA/NEA v Bd Of
Trustees of Central Michigan Univ, 223 Mich App 727, 730, 567 NW2d 696 (1997).
230
MRC 6.201(A).
229
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OWI MANUAL The Prosecution must request the information. If the prosecutor in a case
fails to request this information, the defense is under no obligation to provide
it. If the defense fails to produce the evidence, the prosecution is entitled to
the same remedies as the defense. Prosecutors should also remember MCR
6.201 allows parties in criminal matters to file motions seeking a
modification to the requirements of this court rule. 231 If a prosecutor can
show good cause for requiring the defense to produce evidence not included
in MCR 6.201(A), the trial court may order the modification and require the
defense to produce the information or evidence. 232 For example, a prosecutor
may want to obtain the results of a chemical test conducted by the defense.
MCR 6.201(A) does not require the defense to produce the test results unless
the defendant intends on calling the person who conducted the test as a
witness. If the prosecutor can show good cause why the independent
laboratory result should be produced, the trial court may order its disclosure.
Remember, MCR 6.201 does not apply in misdemeanor cases. 233 There is
no discovery in misdemeanor cases. See section on misdemeanor discovery.
p 71, supra.
While some prosecutors may argue that MCL 767.94 requires reciprocal
discovery in misdemeanor cases, the Michigan Supreme Court said MCL
767.94 does not apply to criminal cases in this state. 234 Furthermore, MCR
6.201 specifically excludes MCL 767.94 from governing any aspect of
discovery in criminal cases. 235 It is apparent that despite the arguments to the
contrary, MCL 767.94 does govern discovery in misdemeanor or any other
criminal cases.
PRACTICAL CONCERNS
Having discussed the court rules, statutes, and case law that govern discovery
in criminal cases, we need to turn our attention to practical matters.
Prosecutors need to put practical procedures in place to avoid violating the
rules of discovery and pretrial disclosure. Failing to disclose required
information can lead to key pieces of evidence being suppressed at trial.
Prosecutors need to be prepared to argue to suppress defense evidence when
the defense fails to follow these rules.
Responding to Discovery Requests
The first practical issue is responding to request for discovery. Every
prosecutor either has or will receive the boiler plate discovery request that the
MCR 6.201(I).
People v Phillips, 468 Mich 583, 663 NW2d 463, 468-69 (2003).
233
Administrative Order No. 1999-3.
234
Administrative Order No. 1994-10
235
MCR 2.601(A) states that “(i)n addition to the disclosures required by provisions
of law other than MCL 767.94a, a party upon request must provide. . . .” MCR
6.201(A).
231
232
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CHAPTER 7: PRE‐TRIAL INVESTIGATION local defense attorney turns out in every criminal case, felony or
misdemeanor. You will recognize one of these requests because it is the
identical request that particular attorney sends in every case regardless of
whether it is an OWI case or a murder case. How should you respond to
these requests? Some prosecutors do not respond to boiler plate discovery
requests. Instead they employ the “open file theory” of criminal discovery.
Under this theory, the defense can look at the prosecution file at any time.
Often prosecutors answer the defense discovery requests to provide a paper
or electronic trail to prevent discovery violation claims.
In certain cases, I suggest creating a form with a list of the documents,
photographs, and other evidence you disclose or provide to the defense.
When the information is turned over to the defense, have the defense
attorney sign the form acknowledging receipt of the evidence. If a discovery
issue arises at trial, you can document the items disclosed to the defense.
Again, I suggest this for certain cases. Use this approach in complex cases,
like an OWI causing death case, with a large number of exhibits or police
reports. Use it in high profile cases where a defense attorney may be tempted
to use the attention the case is getting to her advantage. Use it to combat the
defense attorneys that regularly realize the prosecution has violated discovery
in the middle of trial. While this may not be practical in every case, it can be
indispensable in certain cases.
Finally, when responding to discovery prosecutors must realize that they
have a continuing duty to disclose newly discovered evidence. Prosecutors
should also remember to contact their lead investigating officers in their
cases. Knowledge and facts known by the chief investigator in a case are
imputed to the prosecutor in that case. 236 So, it is important to maintain open
lines of communication with your lead investigating officer as you prepare
your case for trial.
Avoiding Trial by Ambush
Another practical matter is avoiding trial by ambush. Any prosecutor that
has been practicing for a few years has been ambushed by the defense in trial.
Some defense attorneys willfully violate the rules regarding discovery in
criminal cases to gain a tactical advantage. To avoid trial by ambush,
prosecutors must learn and apply the rules of discovery. In circuit court, file
a discovery request. Remember, MCR 6.201 requires the defense to produce
or disclose information “upon request.” If the prosecutor in a case does not
request the information, the defense does not have to produce it. Avoiding
trial by ambush in circuit court is easy. File a discovery request and argue for
the suppression of any evidence not disclosed.
People v Lester, 232 Mich App 262, 279, 591 NW2d 267, 276 (1999).
236
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OWI MANUAL Avoiding trial by ambush in district court is harder. MCR 6.201 does not
apply in misdemeanor cases. There are no reciprocal discovery rules in
district court. However, there are only two real defenses to an OWI charge
in district court: I was not driving and I was not intoxicated while I was
driving. There are only so many areas the defense can attack in a drunken
driving case. Prosecutors need to be prepared to deal with those issues ahead
of time. Learn who the expert witnesses the defense uses in your area and
prepare to cross examine them in any case. It is remarkable how little their
testimony changes from case to case.
Prepare cross examine questions for those witnesses who suddenly come
forward the day of trial and testify they were the real driver. Obtain copies of
the DataMaster logs for every instrument used in your county so you know
of any potential issues with the instrument before the case is ever issued.
Once prepared, have these questions available in every case. If nothing else
ask the court for a twenty minute stay to allow you to interview the surprise
witness. If the witness refuses, you can use this in your cross examination
and closing.
Even though there are no discovery rules in district court, there are still rules
about pretrial disclosure that can help you avoid trial by ambush. Attempts
to introduce evidence of other bad acts require pretrial notice. If the defense
wants to introduce hearsay statements, usually documents for witnesses that
they could not get to testify, using the catch all provisions in MRE 803 and
804, they have to provide the prosecution with pretrial notice. The same is
true for alibi witnesses. Use these rules and statutes to suppress surprise
evidence.
Obtaining Defense Documents
Another practical matter is obtaining scientific or other documents that are
only available to the defense. In OWI cases, these documents are usually the
results from independent testing done on the car being driven or the level of
the defendant’s body alcohol content as determined using a blood or urine
test. When the results of a body alcohol content test is over the legal limit or
when the test demonstrate the vehicle was operating fine, the defense will not
produce the test results because they can be used to convict the defendant.
The defense does not have a duty to turn over incriminating evidence in their
possession to the prosecution. Under MCR 6.201, unless the defense is
planning on calling the expert as a witness at trial, the defense does not have
to disclose the results. But prosecutors must recognize that MCR 6.201(I)
allows parties to ask the court to order disclosure of information outside the
scope of the discovery under this rule. 237 Upon a showing of good cause, the
prosecutor or any party can ask the court to order the defendant to turn over
People v Phillips, 468 Mich 583, 663 NW2d 463, 468 (2003).
237
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CHAPTER 7: PRE‐TRIAL INVESTIGATION the test results from the independent test. If good cause is shown, the court
may order it. Again, this option is not available in district court since MCR
6.201 does not apply in misdemeanor cases.
Local Discovery Rules
Finally, unlike some areas of law, the law surrounding discovery is not a one
size fits all proposition. Rules of local practice can have a dramatic effect on
discovery from one county to another. In my current position, I travel
among eight counties. I prosecute criminal cases in some of those counties
and pursue civil forfeiture cases in all eight counties. The rules of discovery
are not quite the same from county to county. For example, I prosecuted
misdemeanor cases in a district court where the judge required parties to file
witness lists the Friday before trial. Trials began on Tuesdays. I prosecuted
criminal cases before a circuit court judge that required the party seeking to
introduce 404(b) evidence to file a motion to argue for its admissibility at
trial, even though the court rule only requires notice. I share these
experiences with you to make you aware that rules of local practice can
dramatically affect discovery in your case.
For a prosecutor, discovery and the rules, statutes, and cases that govern it
can be another weapon in her arsenal. Like the rules of evidence, search and
seizure law, and the rules of criminal procedure, discovery can be used as
both a sword and a shield. A prosecutor can use the rules of discovery to
prevent trial by ambush and to obtain a key piece of evidence. Or discovery
can be a chink in a prosecutor’s armor. It can be the one area of weakness
the prosecutor hopes doesn’t cost her the conviction. A prosecutor can hope
discovery does not become an issue in her case. Unlike other areas of law, if
a discovery violation cost a prosecutor a conviction, the mistakes belongs to
the prosecutor.
There was a time when my criminal case was backing up a civil case. I was
amazed to learn that both teams of attorneys in the civil case had one
attorney assigned to deal with discovery issues and argue discovery motions.
On that day, I laughed with other prosecutors about it. It was not until I
began pursuing civil forfeiture cases I learned about the importance of
discovery. It wasn’t until I began practicing civil law that I realized why the
civil attorneys had one attorney assigned to discovery. Discovery is a
weapon to be used or it is a weapon to be feared. Either way, one discovery
mistake can dramatically affect the outcome of your case.
85
C HAPTER 8: P RE ‐T RIAL M OTIONS AND H EARINGS If the defendant successfully challenges an arrest, the appropriate remedy is
suppression of the evidence gathered as a result of the arrest rather than a
dismissal of the charges. 238 The prosecutor will have to decide whether there
exists other sufficient evidence to present a viable case which warrants
continued prosecution. However, the Court of Appeals recently ruled that
the exclusionary rule does not require suppression of blood alcohol results
where the defendant’s warrantless OWI arrest was constitutionally valid,
being supported by probable cause, even though the arrest was statutorily
invalid. 239
In People v Anstey, the defendant was arrested for drunk driving and took a
breath test. 240 The results were .21. He asked to be taken to Indiana for an
independent test. That request was denied. He then asked to go to a hospital
that was 15-20 minutes away from the jail. That was also denied. The police
offered to take him to the local hospital, but he refused that offer. The lower
courts held that the police unreasonably denied the defendant his right to an
independent test. Pursuant to People v Koval, the charges were dismissed. 241
The Michigan Supreme Court reversed.
Four Justices noted that the statute authorizing the independent test did not
contain any sanction for the failure to provide an independent test. They held
that the Koval court erred in holding that dismissal is the remedy for a
violation. They further held that suppression of the state’s chemical test is
also not a remedy. Rather, the court may instruct the jury regarding the
officer’s failure to provide the defendant the opportunity to obtain an
independent case. A model instruction is in the opinion. Justice Weaver
concurred in overruling Koval, but dissented from the jury instruction
remedy. Justices Cavanagh and Kelly dissented.
Whenever the defendant challenges an arrest, the motion should contain
specific allegations of the legal or factual basis upon which the arrest is
claimed to be illegal. The claim involved determines whether the legality of
the arrest can be decided without an evidentiary hearing. If any significant
facts are in dispute, an evidentiary hearing should be provided by the court.
People v Spencley, 197 Mich App 505, 508; 495 NW2d 824 (1992).
SeePeople v Lyon, 227 Mich App 599; 577 NW2d 124 (1998).
240
476 Mich 436 (2006).
241
371 Mich 453 (1963)
238
239
OWI MANUAL Not all parties involved in the arrest or the formulation of the basis for arrest
must be produced to testify at the suppression hearing. Under MRE
1101(b)(1) and MRE 104(a), the rules of evidence do not apply to “the
determination of questions of fact preliminary to admissibility of evidence”
except with respect to privileges; therefore, hearsay evidence is not
objectionable.
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C HAPTER 9: T HE T RIAL With his or her case, the prosecutor should consider any problem areas and
devise questions to address these concerns. The prosecutor should give
careful thought to each question, and they should be prepared in advance of
trial.
Practice Tip: If there is not a good reason to ask a question, do not ask it. VOIR DIRE
Before conducting the voir dire of a jury, the prosecutor should carefully read
the juror questionnaires. The information available on questionnaires varies
between jurisdictions, but generally the information will be useful. The
prosecutor should ask the witnesses if they are familiar with any of the
potential jurors. The prosecutor should look at the jury instructions and
incorporate the information from them into questions that may be asked.
This makes the prosecutor look credible. The instructions also will provide
the basis for questions to the jury that will focus on resolving the issues in the
case.
Practice Tip: The priority is to establish rapport with the jury. The best jury selection is a conversation between the prosecutor and the
prospective jurors. The discussion should be designed to make the jurors
relax, listen to the questions, and share their thoughts.
If the prosecutor presents a serious attitude to the jury, the jury will
remember that serious attitude as they consider the case during deliberations.
It is the first opportunity for the jurors to evaluate the prosecutor and the
prosecutor should seize the opportunity to make a good impression. The
prosecutor should try to impress the jury that he or she is sincere and fair,
and that the jury can look to the prosecutor for leadership. It is important
that the prosecutor believes in the case and is not apologetic, or presenting
the image of someone who is just going through the motions. The prosecutor
must show interest in the jurors as people without being patronizing. The
jurors should have the feeling that they can rely on the prosecutor. Eye
contact is crucial.
The prosecutor should introduce himself or herself, and explain to the jury
that a prosecutor represents the “People of the State of Michigan” and that it
is the prosecutor’s duty to ensure that the People, as well as the defendant,
have a fair and impartial jury.
OWI MANUAL Practice Tip: The prosecutor should question individual jurors instead of addressing all of the questions to the entire panel. The prosecutor should bounce the questions around, asking juror number
one a question, then juror number three, then number five, and so forth.
This method keeps all jurors alert since they may be the next juror to be
asked a question.
Practice Tip: The prosecutor should ask questions that let the jurors know that he or she is prepared: that the prosecutor knows something ʺspecialʺ about them. The prosecutor should ask questions that build their egos by alerting the
jurors to any special knowledge that they may possess, e.g., "Now Mrs.
Smith, as a hard working mother of three children, would the fact that one of
your boys is also a teenager cause you any difficulty in sitting in this case”
(where the defendant is a 19-year-old boy?) or, "Now Mr. Jones, with your
special expertise in the field of chemistry, do you believe that you would be
able to follow the court's instructions regarding presumptions of law
concerning blood alcohol levels?"
Practice Tip: The prosecutor should begin to use the themes and address the issues that will permeate the entire trial. The prosecutor should collect promises to be fair and impartial, and
introduce the issues that will be used in closing argument. No matter how
subtle, if there are issues that the prosecutor must sell to the jury, the best
place to start is during voir dire.
Practice Tip: The law must also be covered in jury selection. Any preconceptions or misconceptions should be ironed out over what
constitutes reasonable doubt: the presumption of innocence; what place, if
any, sympathy plays; and what a juror's duty means.
To obtain a conviction for Operating While Intoxicated, the jury must be
convinced that a violation of the statute is a crime and that the defendant
should be convicted if the People prove its case beyond a reasonable doubt.
The prosecutor may have to overcome the obstacle of social values in the
community which may not easily recognize that OWI is a crime. It is naive
to believe that a jury automatically will convict a defendant because it is
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CHAPTER 9: THE TRIAL shown that the defendant violated the OWI statute. The jurors may believe
that the violation was "technical" or that the defendant should not be
punished. Some jurors may feel so much sympathy for the defendant that
they cannot bear to vote for conviction.
The prosecutor also must be conscious that some jurors may have the "there
but for the grace of God go I" attitude. It is important to begin to counter
this problem at the start of the trial and to continue the process throughout
the proceedings.
In a .08 case, the jury should be introduced to the idea that the scientific
instruments used can be trusted. If there is no evidence of bad driving, the
jury may need to learn that certain driving behavior or an accident is not
necessary for the offense to occur.
The prosecutor may want to stress that the People have no interest in putting
innocent people in jail. It can be pointed out that the People have a high
burden of proof. At the same time, the prosecutor should project the image
that the burden of proof is assumed with confidence, and that the
presumption of innocence can be overcome.
SAMPLE QUESTIONS FOR VOIR DIRE
The following questions are only examples of what a prosecutor may ask
during voir dire in an OWI case. These questions are suggestions and are not
a substitute for good trial sense. Although most of the questions are phrased
as group questions, it is more effective to pose a question to an individual,
explore the area with that individual, and then to pose the question to the
group. In addition, follow-up questions are not included in these examples.
In most instances, the prosecutor will want more than a "yes" or "no" answer
and should pose additional questions to elicit specific information.
Although all of the questions listed below should be allowed, the trial judge
has considerable latitude during jury selection, and defense objections to
some of these questions may be sustained. This especially might be the case
if the voir dire process has been unusually lengthy.
Finally, remember to be confident during voir dire. If you display a sense of
confidence in what you are trying to accomplish, this will be transferred to
the prospective jurors. They will have confidence in you and will adopt a
positive attitude towards your case.
Introductory Remarks
1. Introduce yourself. Stress that you represent the People of the State
of Michigan.
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OWI MANUAL 2. Introduce the investigating officer. If the investigating officer sits
with the prosecutor at counsel table, introduce him or her at this
time.
3. Tell the jury that this is the only time the prosecutor will be able to
talk with them during the trial. The jury should be aware that while
the trial is being conducted, attorneys are not permitted to speak with
the jurors because it is considered improper.
4. For those jurors involved in jury service for the first time, indicate
that this is not television, and it may not be as dramatic as television,
but it is real life. This acknowledges that the prosecutor is aware that
most jurors do have some idea of what jury service is like by
watching television.
5. Tell the jurors that questions are not being asked to pry, to provoke,
or to embarrass them. It is important that jurors honestly answer all
the questions asked.
6. Indicate to the jurors that the attorneys may be taking notes from
time to time and referring to summaries of the questionnaires they
filled out. Jurors may have forgotten about the questionnaires they
filled out, and this reminds them that the attorneys are in possession
of the questionnaires and that they serve a purpose.
7. Explain what the People are looking for in a jury: reasonable people
who will use their common sense and intelligence to fairly decide this
case. Say that only some jurors will be selected, but please do not
take the decisions personally. This statement, at least indirectly,
alerts the jurors that they may be excused by peremptory challenges.
General Questions
1. Does anyone know the defendant or a relative of the defendant or his
family, the defendant's attorney, the police officers or other witnesses,
or myself or other members of the prosecutor’s office? (Even in large
counties, it is not uncommon for prospective jurors to be acquainted
with parties to a trial.)
2. Has anyone heard any publicity about the case?
3. Is there anyone on this panel who does not drive a car?
OWI Case Questions
1. Is there anyone who has never seen a person who has been affected
by the consumption of alcohol? (Assume they all have.) How could
you tell? Do you have medical training? Do you believe one has to
have medical training to tell if a person is affected by alcohol?
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CHAPTER 9: THE TRIAL 2. Is there anyone who believes that it is not possible to tell if someone
is affected by alcohol by observing and talking to the person?
3. Have you ever seen a person you believe to be under the influence of
alcohol? What indications did you have that they were under the
influence of liquor?
4. Is it necessary that someone be falling down drunk before it affects
their ability to operate a motor vehicle?
5. Have you ever known someone that you believed was under the
influence of liquor who denied that they were under the influence of
liquor?
6. Has anyone ever taken or observed someone take a field sobriety test,
such as walking a straight line, touching the nose, reciting the
alphabet, etc.? (Include tests given to the defendant.)
.08 Questions
1. Does anyone believe that it is unfair to require a person to take a
blood, breath, or urine test if suspected of operating while
intoxicated?
2. Is there anyone who distrusts scientific instruments? Even if they are
properly operated and regularly checked for accuracy?
3. Have any of you heard of the BAC DataMaster breath test
instrument, used to measure the amount of alcohol in a person's
breath? Where have you heard about this instrument? Do you have
any knowledge about the ways that this instrument is checked and
maintained for accuracy?
4. If you are instructed that the law in Michigan is violated if a person is
found to be operating a motor vehicle with a bodily alcohol level of
0.08 grams or more per 100 milliliters of blood, 210 liters of breath, or
67 milliliters of urine, could you convict the defendant if the evidence
shows his or her bodily alcohol content was 0.08 grams or more?
Law Enforcement Questions
1. Have any of you ever been stopped by the police while operating a
motor vehicle? Do you feel you were treated fairly?
2. Have any of you had any experience with a police officer that has
caused you to form an opinion against him or her?
3. Can you give the testimony of a police officer the same weight as
other witnesses?
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OWI MANUAL 4. Does anyone on this panel believe that the police should wait until
there is an accident or near accident before arresting someone for
operating while intoxicated?
Miscellaneous Questions
1. Credibility: Do you understand that evidence in this case will come
primarily from the testimony of witnesses? It may become necessary
for you to determine who is more believable. The believability of a
witness is a judgment which only you as a juror can make. Will you
be able to determine the believability of the witnesses?
2. Sympathy for the Defendant: Members of the jury, we are here to try
a case in which the defendant is charged with committing the crime
of operating while intoxicated. I ask you this: If the People sustain
its burden of proof, and prove the defendant guilty beyond a
reasonable doubt, are you willing and capable of finding this
defendant guilty?
3. Punishment: You understand that as jurors, you are to decide this
case on the facts, without regard to what happens to the defendant
afterwards? If you think the defendant is guilty after hearing the
evidence, punishment, if any, be for the court to decide?
4. Is there anything that we may not have asked you that you believe is
important for us to know concerning your ability to serve as a fair
and impartial juror in this case?
OPENING STATEMENT
The opening statement is the prosecutor’s next opportunity to address the
jury: to let the jury know what the case is about. It is very important for a
prosecutor to sell himself or herself as well as the case. Juries can spot a fake
a mile away, so if the prosecutor does not believe in the case, then the jury is
not likely to believe in it either.
Practice Tip: Preparation is crucial for an effective opening. It is necessary to be very familiar with all of the facts, details, and nuances of
the case. If at all possible, do not rely on notes or outlines when presenting
the opening statement. The ability to do this demonstrates to the jury
preparedness and total command of the case.
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CHAPTER 9: THE TRIAL Practice Tip: Remember that the opening statement is the best opportunity to inform the jury what is necessary to convict a defendant of OWI or the .08. It is here that a prosecutor should lay out the elements of the offense and
relate them to the particular fact situation.
It has often been said that the opening statement is a “roadmap” of where the
prosecution is going with its case. It is important that this roadmap flow
from the beginning of the opening through the trial in a smooth and coherent
fashion. In most OWI cases, the prosecution will be relying on the testimony
of police officers. The opening is the perfect place to begin to establish the
officer’s experience and training. This training and experience can be
emphasized throughout the opening statement. For instance, indicate what
drew the officer’s attention to the defendant’s vehicle, why the officer
stopped the defendant, and what observations the officer made throughout
the incident. Relate this to the police officer’s training and experience as
indicators of an intoxicated driver. This will show that the police are
observant: that they are trained observers.
Once past the initial stop and observations, it will be necessary to focus on
the defendant’s actions. Did the defendant have trouble locating his or her
license, getting out of the car, walking, or talking in a coherent fashion? Be
as descriptive of these details as possible. Paint a vivid picture for the jury.
Try to put them at the scene so that they are able to almost experience the
events as opposed to simply listening about some abstract occurrence. After
emphasizing the officer’s preliminary observations, show that the police were
still willing to consider alternative explanations for the defendant’s behavior
besides intoxication by administering field sobriety tests. Explain to the jury
why field sobriety tests are administered. Explain the importance of these
tests. Establish that balance and hand-eye coordination directly relate to a
person’s ability to operate an automobile and that if the defendant failed such
tests, it suggests that the defendant’s ability to operate a motor vehicle was
affected.
At this point, tell the jury that the officer formed an opinion as to the
defendant’s intoxication. Say that it was based upon training and experience
as well as upon observations of the defendant at the scene, the reasons for the
initial stop, and the defendant’s performance on the various field sobriety
tests. Also, tell the jury that the officer determined that the defendant was
operating a vehicle while intoxicated.
The next phase of the prosecutor’s opening statement will involve the
chemical test (breath, blood, urine). Tell the jury that the officer read the
95
OWI MANUAL chemical test rights to the defendant and whether the defendant subsequently
agreed to take the test. If the relevant chemical test was a breath analysis,
emphasize that the tests were administered by a certified DataMaster
operator on a properly maintained instrument. If a blood withdrawal was
taken, inform the jury that the area where the blood was withdrawn was
scrubbed with a non-alcoholic solution, that the sample was properly
packaged and then tested by a laboratory scientist, who is an experienced and
trained technician. Tell the jury what the results were. However, you will
need to be certain the results will be admitted into evidence. An inability to
later admit the evidence could result in a mistrial for having revealed the test
results in opening statement. 242 Depending on who tested the blood, it may
be possible to have that person testify about how the amount of alcohol
found in the defendant’s blood would affect his/her ability to operate a
vehicle. If that is the case, inform the jury.
It may be the case that the defendant did not consent to the withdrawal of
blood, and instead the police officer was compelled to obtain a blood sample
through a search warrant. If this is the case, tell the jury that a search
warrant was sought and authorized by an independent and neutral magistrate
and that the defendant’s rights were thoroughly protected as is required. This
will show the jury that the police play by the rules and adhere to the
restrictions imposed by the law. It is then necessary to show that the sample
was properly packaged and preserved in much the same manner as the blood
sample taken pursuant to the chemical rights test discussed previously.
If the defendant refused to take a blood, breath, or urine test, inform the jury
that the tests were offered and that the defendant refused. Tell the jury that
the court will give an instruction that this refusal cannot be used as
substantive evidence of the defendant’s guilt. 243
SUGGESTIONS FOR OPENING STATEMENT
1. Do not tell the jury about Operating While Impaired; let the
defendant’s attorney bring that up.
2. Exude confidence in your case.
3. Try not to use notes.
4. Maintain eye contact when addressing the jury.
credibility with them.
This bolsters
See People v Wolverton, 227 Mich App 72; 574 NW2d 703 (1997).
But see People v Wolverton, supra, where the court stated that this evidence is only
admissible to show that a test was actually offered, which may or may not be a
relevant issue in the case.
242
243
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CHAPTER 9: THE TRIAL 5. Do not overstate the case or make promises that cannot be delivered.
OWI cases usually do not take very long to try, and jurors will
remember what was promised and will hold it against an attorney
who cannot deliver.
6. Remember that most people have consumed alcohol and driven.
Thus, they may be sympathetic towards the defendant. Show them
that this case involves someone who consumed more than one or two
drinks and then got behind the wheel.
7. Review the law and Criminal Jury Instructions prior to trial. Be
familiar with both.
8. Do not even mention the PBT unless the defendant claims that the
initial stop was invalid. (See MCL 257.625a(2)(b).)
9. Check with the booking officer regarding their particular observations
of the defendant. That person may be able to reveal another
disinterested witness. Check booking cards. Notice the way that the
defendant signed the booking card when booked versus when
released.
10. NEVER mention that the defendant is charged as a subsequent
offender in the opening statement or in the case-in-chief. In some
courts, the judge WILL DISMISS THE CASE WITH PREJUDICE.
11. Interview lay witnesses thoroughly. Be certain to mention these
witnesses in the opening statement and establish that the witnesses’
testimony will corroborate the police witness’ testimony.
Practice Tip: If the defense counsel chooses to make an opening statement before the prosecutor’s case‐in‐chief, listen closely to the defendantʹs opening statement and see what the defense is going to be. Then ask the prosecution witnesses questions to counter the defense.
Generally, there are two defenses: 1) "I wasn't drunk," or 2) "I wasn't
driving."
DIRECT EXAMINATION
WITNESS PREPARATION
It is important to interview witnesses before trial in order to be able to ask
appropriate questions on the stand. If the jury continually hears "I don't
know" or "I don't remember" from prosecution witnesses, the jury will not
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OWI MANUAL give much credence to the testimony. Preparation and review of the case
with the witnesses is crucial to a successful prosecution.
In the vast majority of OWI cases, police witnesses establish the case.
Hopefully, these police witnesses have reviewed their reports before meeting
with the prosecutor. If not, have them do so. Review the questions that will
be asked of them and have them give their responses. Make sure that the
answers given are not conclusory. If they are, ask for the basis of their
answer. After discussing the testimony of the witnesses, a prosecutor can
judge how strong the witnesses will be at trial. If there are two officers, use
the better witness first. Remember, first impressions with a jury are lasting
impressions.
DIRECT EXAMINATION OF POLICE OFFICER
The PAAC Courtroom Manual provides a good set of suggested questions
for a police witness in an OWI case. The following is intended as an analysis
of these questions and some practice tips regarding their use. The
introductory questions for a police witness seek to lay a foundation upon
which to build the rest of the officer’s testimony:
1. What is your name?
2. What is your occupation and assignment?
3. How long have you been a police officer for the city of
____________?
4. (If the officer worked as a police officer elsewhere, ask him or her
where else he or she worked and for how long.)
5. How did you become a police officer (i.e., any specialized training)?
These preliminary questions are necessary to get an OWI case on the right
track. Not only does the jury get to "know" the police officer, but this type
of questioning lays a foundation for the believability of the officer when that
officer reaches the ultimate conclusion regarding the sobriety of the
defendant. In order for the prosecutor to win an OWI trial, the jury must be
convinced that prosecution witnesses are more credible than any witnesses
presented by the defendant. These questions and the answers will go a long
way towards achieving that goal.
Once the preliminary qualifying questions are completed, it will be necessary
to ask a few transitional questions to focus the case on the incident in
question:
1. Were you on duty on (date and time of offense)?
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CHAPTER 9: THE TRIAL 2. On (date of arrest), at about (time of arrest), did you observe
defendant's (color and model) car?
3. What drew your attention to the car?
4. Did you stop the car?
5. Where did you stop the car?
6. Is this a public street or place open to the public or an area designated
for the parking of vehicles?
7. Is this in ________ County?
8. Why did you stop the car?
This line of questioning establishes that the officer made specific observations
that led to the stop of the defendant’s vehicle. In addition, these questions
build the credibility of the officer because they establish that the officer
remembers the specific details of the incident.
Finally, this line of
questioning ends with the officer establishing one of the elements necessary
for OWI: The incident in question occurred on a public highway, a place
open to the public, or an area designated for the parking of vehicles.
The next several questions relate to the officer’s identification of the
defendant:
1. What did you do next?
2. Did you observe the driver of the car at that time?
established that defendant was operating the vehicle.)
(It must be
3. Would you recognize the driver of the car if you saw that person
again?
4. Do you see the person who was driving the (describe make) car in
court today?
5. Please identify the driver for the court and jury.
After these questions, there should be no doubt that the defendant was the
operator of the vehicle. Once the driver of the automobile has been
established, have the officer describe what observations were made about the
defendant’s personal and physical characteristics:
1. What was the appearance of defendant's eyes?
2. What was the color of defendant's complexion?
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OWI MANUAL 3. What was the outward appearance of defendant's clothing?
4. What was defendant's attitude?
5. What did you observe about the defendant? I.e. problems getting
his/her license; operating his/her window; etc.
6. Did you ask if the defendant had been drinking?
a. Where, when, with whom, and how much?
7. Describe the ability of defendant to maintain his/her balance.
8. Describe the manner of defendant's walk.
9. Describe defendant's speech.
10. Observation about breath (any smell of intoxicants).
11. Why do you make/attempt to make these types of observations?
The questions in the Courtroom Manual along this line suggest asking
whether the officer had any suspicions regarding the defendant's state of
sobriety. It is not a good idea to deal in suspicions. It is better to concentrate
on the observations of the officer and what was done as a result of the
observations. As such, ask transitional questions such as:
1. As a result of your observations of the defendant, what did you do
next (i.e., did you ask defendant to perform field sobriety tests)?
2. What are field sobriety tests?
3. Where were you and the defendant when you asked defendant to
perform field sobriety tests?
4. Why do you administer field sobriety tests?
5. Describe the tests you asked defendant to perform. Which ones were
given?
(a) Balance test.
(b) Walking test.
(c) Turning test.
(d) Finger-to-nose test.
(e) Speech-finger coordination.
(f) Alphabet recitation.
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CHAPTER 9: THE TRIAL 6. Did you give any directions to defendant?
7. Did it appear the defendant understood your instructions?
8. Did defendant attempt to perform the test(s)?
9. Describe defendant's performance.
10. Have you performed other stops where you suspected the person was
under the influence of alcohol or a controlled substance?
11. Do you arrest everyone you stop for the suspicion of intoxication?
I.e. the officer does let suspected drivers go, when after the officer’s
road side investigation, it Is determined that the driver may have
been drinking but was not intoxicated
The reason for asking where the sobriety tests were given is of great
importance. Tests that measure balance must be given on level ground, or
those tests requiring balance and walking will be of no value. In fact, if it is
shown that these tests were conducted improperly (i.e., uneven ground, etc.),
the credibility of the police officer will be affected. The defendant's attorney
will argue that the police officer was "out to get" the defendant by asking the
defendant to perform tests that would be difficult to pass regardless of
sobriety.
Next ask the ultimate question: Was the defendant intoxicated at the time
that the defendant was operating the vehicle? The following line of
questioning will accomplish this goal:
1. How many people have you come in contact with as a police officer
that have been under the influence of intoxicants?
2. In your experience as a police officer, have you had the occasion to
observe these people?
3. On the basis of your experience as a police officer, did you form an
opinion as to the intoxication of the defendant?
4. What is that opinion?
5. On what did you base your opinion?
The officer's opinion should be based upon all of the items that were testified
to previously, i.e., the visual observations of the defendant, observations of
how the defendant was driving, how the defendant performed on the field
sobriety tests, as well as the officer’s training and experience.
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OWI MANUAL The remaining questions for the arresting officer should concentrate on what
the officer did after the defendant was taken into custody. These questions
will generally relate to the transportation of the defendant for chemical
testing (blood, breath, or urine test) and for booking and lodging in the
county jail.
Suggestions for Direct Examination of Police Officers
1. Do not mention the PBT unless the basis for arrest becomes an issue,
the defendant opens the door, or the defendant raises the issue.
2. Do not allow conclusory answers to stand alone; have the officer
testify about the basis for the conclusion.
3. Make sure officers bring exhibits with them, i.e., Breathalyzer rights
form, etc.
4. Properly prepare your witness. Do not assume the police officer
knows how and what to testify to.
5. Remember, alcohol has no smell - so officers cannot testify as to the
odor of alcohol; but the officer can testify as to the odor of
intoxicants.
DIRECT EXAMINATION OF DATAMASTER OPERATORS
MCL 257.625a provides for the admissibility of chemical tests in an OWI
prosecution. Whether the test is for blood, breath, or urine, or whether taken
by consent or search warrant, it is admissible at trial.
The most common type of test given is a breath test. DataMaster
instruments are being used throughout the state for this purpose. The PAAC
Courtroom Manual sets forth some questions for the DataMaster operator.
The suggested questions are as follows:
1. What is your name?
2. Where are you employed?
3. How long have you been an (officer/deputy) with ____________?
4. What is your assignment/duty?
5. Was this your assignment on ______________?
6. How long have you been a DataMaster operator?
a. What was your previous assignment?
operator)?
b. How long?
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(Breathalyzer
CHAPTER 9: THE TRIAL 7. Have you had any special training in administering tests on the
DataMaster?
8. When did you receive the training?
9. Where did you receive this training?
10. How long did you attend?
a. Some attended a 40-hour course; others only 32-hour.
b. Some attended a 1-day course.
11. What did your training consist of?
a. Laboratory and classroom exercises.
12. Were you tested to determine your degree of proficiency in the
operation of the DataMaster instrument?
13. Did you pass the examination(s) given as part of the course?
14. Were you issued a certificate for passing this course?
15. Do you have that certificate with you?
16. As a result of passing the course, for how long are you certified?
17. Since the completion of the DataMaster training course, how many
occasions have you had to test people arrested for operating a motor
vehicle while intoxicated?
18. Did all of these tests indicate that the persons tested were under the
influence of liquor?
19. Have you testified previously in court concerning your operation of
the DataMaster?
20. Approximately how many times have you testified concerning breath
test results?
21. As a certified DataMaster operator, could you tell the jury what is the
DataMaster instrument?
22. Are you trained as a doctor?
23. Are you trained as a chemist?
24. Do you claim any expertise today beyond expertise in operating the
DataMaster?
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OWI MANUAL 25. What safeguards are required to ensure the accuracy of a test?
a. Only certified operators may conduct tests of a subject.
b. The instrument is checked at least once a week with a test
sample containing a known amount of alcohol.
c. A tested subject cannot have anything in his/her mouth for
15 minutes prior to the test.
d. Two breath specimens from each subject are analyzed in
succession.
e. The instrument itself and the procedures that are followed in
operating it are designed so that almost any malfunction will
be to the advantage of the tested subject.
26. Are there any records (logs) kept concerning the use of the
DataMaster instrument?
27. Where are those records kept?
28. Do you have the records with you that were kept on the instrument
which was used to test the defendant on trial today?
29. Do they reflect whether or not the DataMaster instrument had been
given its weekly accuracy check?
30. Do the records reflect whether or not the instrument has been given
its inspection every 120 days as required?
31. Is there a prescribed method followed in performing a DataMaster
test?
32. What is that method?
At this point, defense counsel may object to questions which ask for the
officer’s testimony regarding the records. Since the logs are merely a part of
the foundation to be established for the admissibility of the DataMaster
results, the questions concerning the logs are preliminary questions
concerning the admissibility of evidence; therefore, under MRE 104(a), the
court is not strictly bound by the Rules of Evidence with respect to these
matters. The testimony of the DataMaster operator should be sufficient. 244
Nevertheless, a prosecutor may move for the admission of the DataMaster
log pursuant to the business records exception to the hearsay rule (MRE
See People v Carter, 78 Mich App 394, 397; 259 NW2d 883 (1977).
244
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CHAPTER 9: THE TRIAL 803(6)) and/or pursuant to the public records exception to the hearsay rule
(MRE 803(8)). Questions continue as follows:
1. Do you know________, the defendant in this case?
2. Do you see him/her in the courtroom?
3. Would you describe and point him/her out for the jury/court?
4. On_____, did you administer a breath test to the defendant on the
DataMaster instrument?
5. Prior to giving the test to the defendant, did you advise the defendant
of anything?
6. What did you advise the defendant?
a. Rights to test.
7. When and where did you give the defendant this test?
8. How long was the defendant under your observation before you
administered the test?
9. During that time, did the defendant have anything to eat, drink, or
smoke?
10. Did you ask the defendant any questions?
11. What were they?
12. How did the defendant answer?
13. How many tests did you give the defendant on the DataMaster?
14. Did you follow the prescribed method in testing the defendant?
15. This is a document that has been marked as People's Proposed
Exhibit___. Can you identify it for the jury/court?
a. Evidence ticket.
16. Is this the document you kept regarding the test results of the
defendant?
17. What was the result of the first breath alcohol test which you
conducted on this defendant?
18. What was the result of the second breath alcohol test which you
conducted on this defendant?
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OWI MANUAL a. Move for admission of the document indicating the test
results of the defendant.
19. As a result of these tests, do you have an opinion as to the condition
of the defendant at the time you administered them?
20. Will you state this opinion to the jury/court?
21. Based on your observation of the defendant's behavior prior to and
during the time of the test, do you have any opinion as to the sobriety
of the defendant?
22. On what do you base that conclusion?
DIRECT EXAMINATION OF BLOOD/URINE TESTER
If blood or urine is requested, or taken pursuant to a search warrant, it may
be necessary to show that the search warrant was properly executed if a
pretrial hearing was not already conducted for this purpose. This must take
place before the evidence and the results of the chemical test can be admitted
into evidence. To do this, it will be necessary to question the officer
regarding the procedures involved in swearing out the search warrant.
Establish that the officer appeared before a neutral and detached magistrate,
presented the affidavit, and swore to the truthfulness of the information
contained therein. Depending on the court, it may also be necessary to have
the magistrate testify regarding the fact that the affidavit and search warrant
were properly issued, or it may be possible for the court to take judicial notice
of the process assuming that the court’s copy of the search warrant and the
return are contained with the court’s case file (MRE 201). After this, the
officer should testify that the search warrant was duly executed.
Whether the blood or urine was taken pursuant to a search warrant or under
the implied consent statute, before the results are admissible, the mandates
specified in MCL 257.625a(6)(c) must be observed. Subsection (c) provides
in pertinent part:
A sample or specimen of urine or breath shall be taken and collected in a
reasonable manner. Only a licensed physician, or an individual operating
under the delegation of a licensed physician under section 16215 of the public
health code, 1978 PA 368, MCL 333.16215, qualified to withdraw blood and
acting in a medical environment, may withdraw blood at a peace officer's
request to determine the amount of alcohol or presence of a controlled
substance or both in the person's blood, as provided in this subsection.
In addition to the requirements of the above-quoted statute, it is necessary to
question the individual who withdrew the blood about the type of solution
used to sterilize the area from which the blood was extracted. It is necessary
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CHAPTER 9: THE TRIAL that a non-alcohol based solution be used to rule out the possibility that an
alcohol based solution could have adversely affected the test results. If it is a
urine sample, proper procedures for obtaining a urine sample and testing the
sample will need to be established to gain the admission of the urine test
results.
It is also necessary to show the chain of evidence from the person who
withdrew the blood or obtained the urine sample to the individual who tested
it, in order to establish that the sample was properly preserved, and to ensure
that the results of the chemical test will be admitted.
In the event that a blood sample was extracted from the defendant, here you
will want to ask the person who withdrew the blood whether the area from
which the sample was drawn was cleaned with a NON-ALCOHOLIC
solution, in order to establish that the ultimate results were not affected.
1. Did you clean the area from which you withdrew the blood?
2. Did you use a non-alcohol based solution for this purpose?
3. Did you follow the prescribed method in testing the defendant?
4. Let me show you a document that has been marked as People’s
Proposed Exhibit ___. Can you identify it for the jury/court?
a. Lab Report.
5. Is this the document that you kept regarding the defendant’s test
results?
6. Move for the admission of the document indicating the defendant’s
test results.
7. As a result of these tests, do you have an opinion as to the condition
of the defendant at the time that you administered them?
8. Will you state this opinion to the jury/court?
9. Based on your observation of the defendant’s behavior before and
during the time of the test, do you have any opinion as to the sobriety
of the defendant?
10. On what do you base that conclusion?
The individual that tested the blood or urine sample will be asked to testify as
to: 1) their qualifications and ability to test blood/urine; 2) the procedures
that they followed in testing the blood/urine; 3) the fact that the testing
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OWI MANUAL instrument was operating correctly; and 4) the results of the test.
general foundational questions to ask are as follows:
The
1. What is your name?
2. Where are you employed?
3. In what capacity are you employed? How long have you been a
______?
4. Have you received special training in the testing of urine/blood?
5. When did you receive this training?
6. Where did you receive this training?
7. How long did you attend?
8. What did your training consist of?
9. Were you tested to determine your degree of proficiency in the
instrument?
10. Did you pass an examination given as part of the course (if
applicable)?
11. Were you issued a certificate for passing the course (if applicable)?
12. Do you have that certificate with you? Move to introduce certificate
(if applicable).
13. Since the completion of your training, have you tested blood/urine
for ethanol alcohol?
14. Approximately how many times?
15. Have you testified in court regarding blood/urine test results?
16. Approximately how many times have you testified in court?
17. Are you trained as a doctor, chemist?
18. Do you claim any expertise today beyond expertise in testing
blood/urine for alcohol?
19. What safeguards are required to ensure the accuracy of the test?
20. Are there any records (logs) kept concerning the instruments?
21. Do you have the records with you that are kept on the instrument
which show it is operating properly?
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CHAPTER 9: THE TRIAL 22. Are these records kept in the ordinary course of business?
23. Are you the keeper of those records?
24. Have you changed, modified, or altered those records in any way?
25. Move for introduction of the records.
26. When was the test conducted?
27. Where was the test conducted?
28. Regarding the test in question, what procedure did you follow in
administering the test?
29. What were the results of the test?
30. Move to introduce results.
In an OWI case involving a crash where the defendant is treated at a hospital
for injuries, it is common for the treating physicians to order a blood draw to
determine the patient’s blood alcohol content to avoid drug/alcohol
incompatibility problems. Pursuant to MCL 257.625a(6)(e), the results of
the hospital tests may be obtained by the prosecutor for use in a criminal
prosecution. The statute effectively abrogates the physician/patient privilege
as to the results of the patient’s blood test, and thus avoids the necessity of
subjecting the defendant to an additional blood draw for purely evidential
purposes.
The procedure for admitting blood taken pursuant to MCL 257.625a(6)(e) is
the same as previously explained. Show that: 1) the person is qualified to
withdraw the blood; 2) the area where the blood was withdrawn was
scrubbed with a non-alcoholic solution; 3) the procedures for taking the
samples were adhered to so as to establish the chain of evidence from the
withdrawal of the blood through the testing of the sample.
If you are fortunate, you will have a toxicologist test the blood sample in
your case. Toxicologists are wonderful witnesses in OWI cases. First,
qualify the witness as an expert in the field of toxicology. Then ask the
toxicologist what the defendant’s BAC was, and ask how that amount of
alcohol in a person’s system would affect their ability to operate an
automobile. The toxicologist can go into how alcohol affects the central
nervous system, reaction time, etc. These witnesses can generally be asked
rather open-ended questions. An expert can render an opinion on the
ultimate issue, i.e, that the defendant’s ability to operate the vehicle was
substantially lessened based upon the defendant’s blood alcohol content as
shown by the chemical test results. Make sure that before this witness
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OWI MANUAL testifies, he or she understands what testimony the prosecution is looking for.
Most state lab toxicologists are experienced; therefore, they can greatly assist
you with your case. Many can tell you what questions should be asked.
On the rare occasions where there is a lay witness, it will be necessary to
proceed with caution. Many times a lay witness will be a friend of the
defendant whose testimony will not be favorable to the prosecution’s case. If
this is the case, if at all possible, you should avoid calling the witness in your
case-in-chief. If such witnesses testify at all, it is best to allow the defense to
call them in their case-in-chief, permitting confrontation on crossexamination. The prosecution can also attempt to discredit them through the
use of leading questions.
On the other hand, if the civilian witness is not a friend of the defendant, it is
a good idea for the prosecutor to present that person’s testimony at trial.
Review the potential testimony with the witness prior to trial. See how that
witness' testimony lines up with the police officer's version. If the testimony
is basically the same, there is nothing to worry about. If there are major
differences, it will be necessary to resolve these discrepancies before trial.
Decisions regarding lay witnesses can only be made on a case-by-case basis.
If possible, lay a foundation for the lay witness’ opinion testimony pursuant
to MRE 701.
SUGGESTIONS FOR DIRECT EXAMINATION
1. Interview all witnesses before trial. Let them know what is expected
of them
2. Remember laboratory technicians, laboratory scientists, and
DataMaster operators are not toxicologists and cannot testify as such.
(It may be possible to get opinion testimony under MRE 701.)
3. Have exhibits marked prior to trial.
4. Ask short and concise questions. Allow the witnesses to testify; don't
testify for them.
5. Avoid legal jargon; make questions easy to understand.
6. Avoid scientific terms. Have the witness explain any scientific terms
referred to.
7. Get to the point; don't waste time on unimportant information.
8. Examine exhibits prior to trial, especially logs for the DataMaster.
Make sure that it was tested and serviced as required.
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CHAPTER 9: THE TRIAL 9. Make sure that all exhibits have been introduced and accepted by the
court.
CROSS EXAMINATION
Now it is your turn to testify. Like everything else, you can be prepared with
an outline of questions and areas to cover even before the defense witness has
taken the stand. The National College of District Attorneys developed a
technique called Approach Point Cross Examination. It is not a method
whereby you attack and beat down a witness into submission of your will. It
is a method that will help you organize your questioning in a manner that
will support your theory of the case.
APPROACH POINT CROSS EXAMINATION
Just as other parts of the trial, you will organize your questions around
specific points you want to make. The rules of primacy and recency apply.
Don’t ask questions that allow the witness to restate what’s been said on
direct, especially if it doesn’t support your theory of the case. Remember,
repetition is what we want for the facts that are favorable to our case, not the
defense case. Decide on either a chronological or topic order of your
questions. Don’t just use a shotgun approach thinking you will keep the
witness off guard. You may succeed in doing that, but you aren’t succeeding
in allowing the jury to follow and understand what points you want them to
remember.
You can find many trial books that will give hard line rules of cross
examination and then will list exceptions and then you are confused. Here
are two that are simple and basic to effective cross examination.
Ask Leading Questions
During direct you asked the who, what, where type of open ended questions
to get information to the jury from your witness. Rather than “what color is
your car”, you now ask, “your car is blue?” Some would suggest “your car is
blue, correct?” or “your car is blue, isn’t it?” using what is called the tag line.
However in a long questioning of a witness it can sound accusatory
unnecessary or at a minimum, it can be annoying. If jurors don’t like you or
you are annoying them, it isn’t helping your case. To successfully persuade,
you must effectively communicate. Leading questions allow you to control
the witness and the information being conveyed.
Get Concessions
There are many things that defense witnesses cannot contradict so use them
to support your case. Usually, starting with these types of questions, asked in
a normal tone, with one fact per question will not put off the witness. In an
OWI trial the line of questioning can go like this:
111
OWI MANUAL Do you own a blue Ford?
Yes.
Did you drive the blue Ford on 12/31/08?
Yes.
Did you drive on Main Street in Downtown?
Yes.
Were you here in the City of Midland, Midland County?
Yes.
Were you alone in your Ford?
Yes.
Was your car on the sidewalk?
Yes.
Do you remember talking with Officer Friendly?
Yes.
Did you tell Officer Friendly you drank a couple of beers?
Yes.
Did you tell Officer Friendly you were very tired.
Yes.
Here you’ve shown with the defendant’s own words the elements of venue
and operation of a motor vehicle on a highway. Additionally, you’ve shown
that defendant drank alcohol before the bad driving. Now if there’s a video
of the field sobriety tests, then you can cross examine on that which can’t be
refuted.
Was that you on the video?
Yes.
Did Officer Friendly explain the Horizontal Gaze test?
Yes.
Did Officer Friendly then give you the test?
Yes.
Did Officer Friendly explain the walk and turn?
Yes.
Were you to walk 9 steps out and back?
Yes.
Did you walk 12 steps out?
Yes.
Was that you falling off the line?
Yes.
Did Officer Friendly explain the balance test?
Yes.
Were you to hold your foot 6” off the floor?
Yes.
Were you told to count until told to stop?
Yes.
Did you put your foot down at the count of 5?
Yes.
Was that you stopping and saying “I can’t do this when I’m sober”?
Yes.
You have now gotten the defendant to concede facts that show his
impairment. You of course won’t ask the last question of… so, you really
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CHAPTER 9: THE TRIAL were impaired. This you save for your argument because you have
established the facts in your questioning to make that argument in closing.
IMPEACHMENT
Once you’ve gotten all the concessions, then you go for impeachment. A
question that will help not only in cross examination but in analyzing all
aspects of your case is: If what they say is true, what else must be true? So
if a witness says they are an honest, forthright person, if true, what else must
be true? The witness shouldn’t have convictions for theft or dishonesty
crimes. If there is a conviction, then you can impeach the witness as not
believable. We know that in most drunk driving trials we won’t have that.
We will have a defendant whose car was found on the roadside in a ditch on
a snowy night and defendant left the scene. The officer follows footprints in
the snow to defendant’s house a quarter mile away. Defendant of course
denies driving the car…a friend was. Now the analysis—if what the
defendant says is true, what else must be true? The keys to his car shouldn’t
be in his pocket when arrested. There should be two sets of footprints in the
snow if defendant claims the friend was driving them both. Or, if defendant
denies being in the car, where’s the person (the “friend”) who’s footprints
lead to defendant’s house? If the “friend” exists, wouldn’t a friend come
forward? Also, if not in the car, defendant’s boots and pant legs should be
dry, not wet and snowy as the officer found them. Impeachment is also
where you will point out inconsistent statements, or show how the witness
testimony differs from others to show lack of credibility.
Practice Tip: After showing the inconsistency save your accusation of lack of credibility or lying for closing argument. Not in your next question. CROSS-EXAMINING DEFENSE EXPERT WITNESSES
You learn that the defense intends to call an expert witness to attack a key
portion of your case. What do you do? Why are they calling an expert?
Perhaps the expert is being brought in to attack the reliability of the Data
Master results or the results of the blood or urine test. Perhaps the expert is
being brought in to testify about field sobriety test. Truthfully, the use of a
defense expert is limited only by the imagination of the defense attorney
trying the case. Remember, the fact the defense attorney is using an expert
witness in his or her defense does not mean there is anything wrong with
your case. Sometimes expert witnesses are used to create doubt where none
exists. To successfully cross examine an expert witness you must prepare.
You must know how the witness will testify before they take the stand.
Second, you must decide if you are going to attack the witness or turn the
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OWI MANUAL defense expert into your witness. Third, plan your attack. Finally, stick to
the plan.
Preparation
Knowing what the defense expert will say before he or she testifies is the key
to successfully cross examining the defense expert witness. How do you
accomplish this? How do you prepare to cross examine an expert witness?
You must do the following:
1. Obtain a copy of the witness’s curriculum vita.
2. Demand a copy of any report prepared by the expert witness or a
written statement detailing how the defense expects the witness to
testify.
3. Collect transcripts of the defense expert witness’s prior testimony.
4. Collect articles, manuals, or case studies prepared by the defense
expert witness or other authors on the same subject matter.
5. Talk to the defense expert witness and other expert witnesses in the
field.
6. Master the facts of your case.
7. Run a search on the defense expert on the Internet.
There is no substitute for preparation when dealing with a defense expert
witness.
Practice Tip: First, demand a copy of the witness’s curriculum vita and a copy of any reports prepared by the defense expert for your case. A defendant, upon request, must provide the prosecution with a curriculum
vita and either a report prepared by the defense expert witness or written
statement detailing the defense expert witness’s proposed testimony. MCR
6.201(A)(3). The value of such reports is obvious. These reports not only
contain the opinion the expert intends to offer at trial, they also contain the
theory and the facts the witness will rely upon to formulate her or his
opinion. The curriculum vita lists the qualifications of the witness. It will
contain articles or books written by the witness. It will tell you where the
witness has been qualified as an expert in past cases. It will tell what
counties should have transcripts for this witness’s prior testimony. In short,
it will tell you where to look for information on how the witness will testify.
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CHAPTER 9: THE TRIAL Practice Tip: You need to locate and read transcripts of the witness’s prior testimony in the areas she or he will be testifying in your case. Once you have received the curriculum vita and any reports, you need to
expand your search for information. Transcripts are a gold mine of
information on how the witness will testify in your case. Furthermore, if a
witness deviates from her or his prior testimony, they can be impeached by
their prior testimony. You need to read as many transcripts as possible. The
one transcript you do not read may contain the one piece of information vital
to your cross examination. The Prosecuting Attorney’s Association of
Michigan (PAAM) maintains an extensive library of transcripts from expert
witnesses that have testified in this state. If you are facing an expert from
another state, PAAM can assist you in locating transcripts from the witness’s
home state.
Practice Tip: While preparing for your cross examination, you need to understand the witness’s area of expertise. You will not gain the same level of expertise as the witness, but you can learn
about and become fluent in the area he or she will be testifying. You can
learn about the witness’s area of expertise using articles, manuals, and case
studies written by the defense expert. You also need to read information on
the subject matter written by other authors. For example, if you regularly try
cases that rely on the Data Master Instrument, take the course and become a
certified Data Master operator. Also talk to colleagues about the expert
witness you are preparing to cross examine. Conduct a search of the defense
expert on the internet. Defense experts often have websites. They may also
participate in defense chat rooms. Again, your goal is to learn as much as
you can about the area in which the witness will testify, and more
specifically, what the witness will testify to before she or he testifies. You can
use this information to impeach the defense expert witness during the trial.
MRE 707.
Practice Tip: Talk to experts in the area. There are a wide variety of experts available to assist you in your
preparation. The Michigan State Police Laboratory employs people who are
experts in a wide variety of topics. They have expertise in areas ranging from
how to draw a blood sample and avoid contamination to the rate at which
the human body metabolizes alcohol. While you are calling exerts to discuss
your case, do not forget to call the defense expert witness. Often times they
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OWI MANUAL will tell you exactly what they are going to testify to during the trial. If they
refuse to answer your questions, you can use that fact against them in cross
examination.
Practice Tip: You must master the facts of your case. Once you have learned as much as you can about the defense expert witness
in your case, you are still not done. No matter how diligently you prepare, if
the defense expert is truly an expert in the field, you will not know more than
he or she does about the field of their expertise. However, you can gain an
advantage over the defense expert witness by having a better understanding
of the facts of your case than anyone else in the courtroom. Any expert
witness’s opinion must be based on applying her or his expertise to the facts
in your case. 245 Failure to base their opinion on facts from your case is a
basis for suppressing the defense expert witness’s testimony. 246
You can often control the expert’s opinion through a mastery of the facts in
your case. Give the expert your facts to see if they change the expert’s
opinion. Make the expert your witness. If you change the facts, even
slightly, you can often change the opinion given by the witness. Defendants
tell their attorneys and their expert witnesses only the facts that help their
position, while leaving out the facts that will hurt their position. So, while
you may never gain the same level of expertise as the expert witness, you
should always have a better understanding of the facts in your case.
Practice Tip: If you are going to cross examine an expert witness or any witness successfully, you must master the rule of evidence. You must learn the rules regarding impeachment of witnesses:
1. MRE 607: Who May Be Impeached
2. MRE 608: Evidence of Character and Conduct of a Witness.
3. MRE 609: Impeachment by Evidence of Conviction of Crime.
You must also master the rules of evidence that control the admissibility of
expert testimony:
1. MRE 701: Opinion by Lay Witnesses.
See MRE 703; People v Unger, 278 Mich App 210, 217-8; 749 NW2d 272 (2008); see
also Daubert v Merrell Dow Pharmaceuticals, 509 US 579; 113 S Ct 2786 (1993).
246
See Davis v Williams, Unreported 2008 WL 5101634 (Mich App, 2008); citing
Badalamenti v William Beaumont Hosp-troy, 237 Mich App 278, 286; 602 NW2d 854
(1999).
245
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CHAPTER 9: THE TRIAL 2. MRE 702: Testimony by Experts.
3. MRE 703: Bases of Opinion Testimony by Experts.
4. MRE 704: Opinion on Ultimate Issue.
5. MRE 705: Disclosure of Facts or Data Underlying Expert Opinion.
6. MRE 706: Court-Appointed Experts.
7. MRE 707: Use of Learned Treatises for Impeachment.
MRE 701: Opinion by Lay Witness was included in this list because if you
successfully challenge a witness’s qualifications as an expert in a given field,
the defense will still try to elicit the witness’s opinion as a lay witness.
Therefore, it is important to know the limitations placed on lay opinion
testimony. Finally, it is important to know how to properly impeach the
defense expert with her or his prior statements:
1. MRE 612: Writing or Object Used to Refresh Memory.
2. MRE 613: Prior Statements of Witnesses.
It is important to know that any item or writing, like a report prepared by the
expert witness, used by the witness to refresh her or his memory during their
testimony, must be turned over to the prosecution. Furthermore, if a report
is used to by the defense expert before trial to refresh his or her memory, the
Court can order that the document be produced, in the interest of justice, to
the prosecution. MRE 612. Finally, it is critical the prosecutor knows how
to impeach the defense expert with that expert’s prior statements. MRE 613
states the rules for impeachment with prior statements made by a witness.
When the prosecutor impeaches the defense expert with a prior statement,
the prosecutor must give the witness or opposing counsel a copy of the
statement. More importantly, extrinsic evidence of a prior statement is not
admissible, unless:
1. The witness is given an opportunity to deny making the statement or
explain the statement, and
2. The opposing party is given an opportunity to interrogate the witness
about the prior statement.
Decide to Attack or Turn the Expert Witness
Once you have learned as much as you can about the defense expert witness,
you must make a decision. Are you going to attack the expert witness or turn
the defense’s witness into your own witness? When making this decision you
should consider the following questions:
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OWI MANUAL 1. Can the defense expert help you prove the elements of your case?
2. Will the defense expert answer your questions?
3. Will the defense expert provide you with facts or opinions helpful to
your case while they are testifying?
If the answer to the three questions is yes, then you can turn the witness into
your witness at trial.
First, can the expert witness help you prove your case? During the
preparation phase, you should learn if the witness has information that can
help you prove your case. For example, Dr. Dennis Simpson has been called
as an expert in OWI cases by defense attorneys to offer testimony on a wide
variety of issues. He has testified about alcohol absorption rate of the human
body, invalidate the results of body alcohol content test, and even the rate at
which the body metabolizes marihuana. Dr. Simpson will also testify quite
favorably for the prosecution about the probative predictive validity value of
three field sobriety test: The One Leg Stand, The Walk and Turn, and The
Horizontal Gaze Nystagmus tests. Simpson has testified that when
performed correctly, probative predictive validity value of all three tests
together is as high as ninety percent or as low as eighty percent. In other
words, there is an eighty percent likelihood the defendant is legally
intoxicated. Dr. Simpson has testified that a body alcohol content as low as
.04 can substantially affect a person’s ability to drive. Dr. Simpson has and
will testify to these and other topics that will help you prove your case.
Second, when the defense expert witness has information that can assist your
case, will he or she answer your questions on cross-examination? As you
read transcripts of a witness’s prior testimony, you will learn whether the
witness will actually answer questions helpful to the prosecution on the
stand. Dr. Simpson, as an example, will answer your questions on the stand
if you ask them correctly. For example, Dr. Simpson has testified that you
can do a retrograde extrapolation to determine range of what a person’s body
alcohol content (BAC) was several hours before a test was given. A
retrograde extrapolation is a process used by scientist. If scientists have
enough information, they can take a result from a body alcohol test at one
time, like 3 AM, and determine the range of the person’s body alcohol
content was at an earlier time, like 1 AM. So a person with a BAC of .18 at 3
AM, could have a BAC range of .13 to .16 at 1 AM. However, if when
posing the question to Dr. Simpson, the prosecutor asks him to determine the
exact BAC level, not a range, at an earlier time, Dr. Simpson will merely say
it cannot be done. He will explain why it cannot be done. But, he will NOT
tell the prosecutor that it can be done to determine the range of the person’s
BAC.
If Dr. Simpson is asked the right question, he will give the
prosecution information that will help them prove their case. However, if the
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CHAPTER 9: THE TRIAL question is asked poorly or in a way that allows him to avoid giving the
prosecution helpful information, he will not answer the question.
Another way to determine if a witness will answer your questions is to talk to
the defense expert before trial. Actually call the person on the phone and talk
to them about the case. Better yet, set up a meeting and discuss the case with
the witness in person. You cannot force the expert to discuss the case with
you. If the witness refuses, you will know they will not likely help you on the
stand and you can use their refusal to discuss their opinion with you to
impeach them during your cross examination. Dr. Simpson will talk to you
on the phone about the case. He will tell you how he is being asked to
testify. He will tell you what opinion he will offer during the trial. He will
also often tell you he has never met the defendant and he does not know the
facts of the case. But, again you must be precise in how you ask him
questions. He will answer questions and give you information helpful to
your case. He will not, however, offer you any information if he is not
specifically asked or if he is not asked correctly. If you try to impeach him at
trial with the fact he did not give you the information, he will tell you and the
jury that he did not answer the question because you, the prosecutor, did not
ask him the question correctly.
Third, you need to know if the expert will give you the information helpful to
your case or will he or she refuse to answer or dodge the questions during the
trial. There are those defense experts like Simpson who will give you facts
helpful to your case. There are also defense experts that will never give the
prosecution such information. The second kind of experts will answer your
questions, but they will find ways to dodge the question. This second kind of
witness will use your question as an opportunity to restate the opinion they
are being paid to give. Such experts will also ramble on saying a lot of words
but never answering the question. As discussed above in our example, Dr.
Simpson, is a mixture of both types. If asked the right question he will give
the honest answer even when it hurts his client’s case. But, if you give any
chance, he will use it as an opportunity to avoid giving you the information
you are seeking.
If the answer to all three questions discussed above is yes, then you should
turn the defense expert into your own expert witness. If, however, the
answer to any one of the three questions is no, you should plan on attacking
the witness. An often asked question is can you attack a defense expert in
one area and turn the expert witness into your witness in other areas? The
answer depends on circumstances of the case. If you are attacking the
credibility of the defense expert by challenging the witness’s qualifications to
be an expert or by challenging their motivation for testifying (how much they
make), then you cannot later ask the jury to rely upon their testimony in an
area helpful to your case. However, if you are attacking the science of their
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OWI MANUAL opinion or how the science relates to the facts of the case in forming a
specific opinion, then you could ask the witness to testify about a separate
matter that is helpful to your case. For example, if a prosecutor were to
attack Dr. Simpson’s qualifications as an expert or challenged his motivation
for testifying, that prosecutor could not later ask Simpson about the probative
predictive validity values of field sobriety test. On the other hand, if a
prosecutor were to attack Dr. Simpson’s opinion on the validity of the blood
test result, then the prosecutor could ask for Simpson’s opinion based on the
separate issue of field sobriety tests.
Practice Tip: Once you have learned all you can about the defense expert and decided if you are going to attack the witness or turn the witness in to your own witness, you need to develop your plan of attack. There are prosecutors who can cross examine a witness without a specific
plan of attack and effectively interrogate that witness. However, when
dealing with an expert witness, this approach can dangerous. It is dangerous
for two reasons. First, you will not likely gain a greater level of expertise
than the expert witness in his or her field. Second, most expert witnesses
testify on a fairly regular basis. At the very least, they have testified enough
times that they are comfortable on the stand. When the witness to be cross
examined has greater expertise in the field of inquiry and experience
testifying, it is dangerous to attempt to cross examine that person without a
plan of attack.
Practice Tip: Before discussing how to attack an expert witness, it is important to have a firm understanding of Michigan Rule of Evidence 702. MRE 702 was amended effective January 1, 2004. In its current form MRE
702 states:
If the court determines that scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training or education may testify thereto in the form of
opinion or otherwise if:
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1.
The testimony is based on sufficient facts an data;
2.
The testimony is the product of reliable principles and methods;
and
CHAPTER 9: THE TRIAL 3.
The witness has applied the methods reliably to the facts of the
case.
Under Michigan Law, which incorporates the requirements of the United
States Supreme Court’s decision in Daubert v Merrell Dow Pharmaceuticals, the
proponent of expert testimony must establish that the testimony is reliable by
showing that it is “based on sufficient facts or data” and that it “is the
product of reliable principles and methods,” and that the proposed expert
witness has “applied the principles and methods reliably to the facts of the
case.” 247
The role of the court in its gatekeeper function is not to determine if the
expert’s opinion is correct or universally accepted. The court must determine
if the testimony is based on a “sound foundation.” The court is instructed to
consider if the opinion of the expert witness is based on “methods and
procedures of science” not “subjective belief or unsupported speculation.” 248
If the opinion is based on established methods in accepted fields of science
and the witness’s opinion reliably applies those methods to the facts of the
case then the opinion should be admitted, provided the underlying facts are
in evidence pursuant to MRE 703. 249
Aside from considering the science used to form the basis of the expert’s
opinion, the court must also “ensure that each aspect of an expert witness’s
proffered testimony, including the underlying data upon which the expert’s
opinions are based is reliable.” 250 The opinion of an expert witness is
“objectionable” when it is based on assumptions that contradict the facts of
the case. 251 The expert witness’s opinion must be based on established
methods of science applied to the facts of the case. As a result, there are four
areas to attack an expert’s opinion: the qualifications of the expert, the
science used by the witness and how it is applied in the particular case,
making sure the expert’s underlying facts are in evidence, and attacking the
facts upon which the expert based her or his opinion.
Attacking Defense Expert Witness
There are three approaches you can use once you have decided to attack the
expert witness:
509 US 579; 113 SCt 2786 (1993); People v Unger, 278 Mich App 210, 217; 749
NW2d 272 (2008); citing MRE 702.
248
People v Unger, 278 Mich App 210, 217-8; 749 NW2d 272 (2008); citing Daubert v
Merrell Dow Pharmaceuticals, 509 US 579; 113 SCt 2786 (1993).
249
See People v Unger, 278 Mich App 210, 219; 749 NW2d 272 (2008).
250
Davis v Williams, Unreported 2008 WL 5101634 (Mich App, 2008); citing Daubert v
Merrell Dow Pharmaceuticals, 509 US 579; 113 SCt 2786 (1993).
251
Davis v Williams, Unreported 2008 WL 5101634 (Mich App, 2008); citing
Badalamenti v William Beaumont Hosp-troy, 237 Mich App 278, 286; 602 NW2d 854
(1999).
247
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OWI MANUAL 1. Attacking the Witness.
2. Attacking the Science or Area of Expertise.
3. Attacking the Facts Relied Upon by the Witness.
The goal of attacking the defense expert is prevent the expert from testifying
or to reduce the credibility given to the defense expert’s opinion so badly the
trier of fact will not give the testimony any weight. While any one of the
three areas listed above may be sufficient to achieve your goal of discrediting
the defense expert and her or his testimony, the more areas you can attack,
the more likely you are to achieve your goal.
Practice Tip: When you attack the witness, your goal is to discredit the witness such that the trier of fact finds the witness and her or his testimony incredible. There are two ways to attack the expert witness. First, you can challenge the
witness’s expertise. MRE 702 requires that expert witnesses must be
qualified by skill, knowledge, experience, training, or education in the area in
which they are offering an expert opinion. 252 The goal is to have the judge
find that the witness is not an expert in the field. You accomplish this goal
by questioning the witness’s level of education in the area of inquiry or their
level of experience in the area of inquiry. Using the curriculum vita of the
expert, one can attempt to verify the witness’s education, degrees, years of
experience, or any other fact used to support the witness’s claim of expertise.
Even if the judge qualifies the witness as an expert in the field, challenging
the witness’s qualifications in front of the jury may convince the jury to give
the expert witness’s testimony less credibility. This can be particularly
effective when the prosecution expert witness is more qualified than the
defense expert. For example, Dr. Simpson demands that he be referred to as
Dr. Simpson. Simpson’s doctorate is in the field of education. He does not
have a doctorate in any other field. He testifies on a variety of OWI issues.
Simpson claims to be a toxipharmacologist, but has no degree in that field.
While this fact has never resulted in Simpson not being qualified as an
expert, it does help when he is compared to Dr. Michelle Glinn from the
Michigan State Police Laboratory.
The second way to attack the witness is to attack the witness’s bias. The goal
of this attack is to show the witness has alternative motives for testifying.
Does the witness have a financial reason to testify? How much are they
being paid? What portion of their yearly income is derived from testifying
MRE 702.
252
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CHAPTER 9: THE TRIAL for the defendants? Does the witness have anything to gain by discrediting a
current form of testing? This particular attack is used to encourage the trier
of fact to assign less credibility to the witness’s testimony.
Practice Tip: You can also attack the science being relied upon by the defense expert. When using this attack, you should consult an expert in the field to assist in
formulating your attack. There are experts that you can rely upon. You can
seek these people at the Michigan State Police Laboratory. They can assist
you in a variety of areas, including retrograde extrapolation, alcohol
absorptions rate of the body, procedures for drawing blood using a Michigan
State Police kit, and other issues. You can contact your local police and or
the manufacturer of the Data Master to help you defend the instrument from
attacks by defense experts. You can contact your local hospital for witnesses
to describe how to properly draw blood from patients. Using experts in the
field will help you identify the holes in the defense expert witness’s
testimony. The particular areas of attack will vary from defense expert to
defense expert. You will want to consider if the science is generally accepted
by other scientist in the field. Consider if the opinions being offered by the
defense expert witness have been tested and subjected to peer review by other
experts in the area of inquiry? The goal is to demonstrate to the court and
the trier of fact that the science being relied upon by the witness is too risky
to be relied upon.
For example, in People v Oumedian, the Court restates an excellent example of
attacking the science being relied upon by the defense expert witness. 253 In
this case a defense expert, Dr. Schneider, testified that there were problems
with the Michigan State Police Laboratory blood collection kit and with how
the blood was drawn. He testified that these problems affected the reliability
of the blood test used to determine the Defendant’s body alcohol content.
The prosecutor in the case called Dr. Michelle Glinn, the former toxicology
director at the Michigan State Laboratory, to refute the scientific claims
made by Dr Schneider. The prosecutor in this case used a local expert
witness to attack the science being relied upon by the defense expert witness.
Practice Tip: You can also attack the facts being relied upon by the defense expert witness. MRE 702 requires the defense expert witness to base her or his opinion on
facts consistent with the facts in your case. One way to attack the defense
Unpublished, No. 234758 (Mich App 2003).
253
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OWI MANUAL expert opinion is to attack the facts upon which he or she is relying. 254 This
area of attack is particularly effective because the prosecutor should have a
better understanding of the facts in the case than the expert witness. The
defense experts rely upon the defendants and his or her attorneys to provide
them with the facts they need to form their opinion. Defendants and their
attorneys often fail to give their expert witnesses all the facts in the case. It is
not uncommon for defense experts in OWI cases to have never met the
defendant. Often, when the facts change, opinions change too. For example,
an expert is brought in to testify that there are other explanations for the signs
of intoxication attributed to the defendant, like red watery eyes, loss of
balance, or slurred speech. The expert witness offers the opinion that it is
just as likely the defendant was not intoxicated on the day in question.
However, the defense attorney or the defendant failed to tell the defense
expert that the defendant told police that she or he was not suffering from
any conditions that would lead to red watery eyes, loss of balance, or slurred
speech. When presented with this fact, the defense expert, if he or she is
honest, must change their opinion that other factors caused the signs of
intoxication. If the defense expert will not change her or his opinion in spite
of being given all the relevant facts, you can argue the opinion should be
given no weight.
Remember, ultimately the goal is either to prevent the expert from testifying
or to reduce the credibility given to the defense expert’s opinion. You can
attack the defense expert’s opinion by attacking the expert’s qualification or
their bias. You can attack the science relied upon by the defense expert. You
will be most effective in this attack when you enlist the help of your own
expert witness. Finally, you can attack the expert’s opinion and prevent him
or her from testifying by showing the facts underlying the opinion will not be
in evidence and by attacking or supplementing the facts upon which the
expert is basing her or his opinion. When facts relevant to the expert’s
opinion change the opinion must also change.
Turn Defense Expert Witness
The second and more compelling option is to turn the witness into your own
witness. It is one thing to attack the defense expert and argue why their
opinion should be given no weight. It is a far more compelling argument
when you can tell the jury that even the defense expert believes the defendant
was too intoxicated to drive. To accomplish the goal of turning the defense
expert into your own witness you must know that the witness will give you
the information you need. Failing to turn the expert witness in front of the
trier of fact will increase the witness’s credibility while diminishing your
See Davis v Williams, Unreported 2008 WL 5101634 (Mich App 2008); citing
Badalamenti v William Beaumont Hosp-troy, 237 MichApp 278, 286; 602 NW2d 854
(1999).
254
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CHAPTER 9: THE TRIAL own. The single best way to ensure the defense expert will give the
information you seek is to have transcripts from prior court trials or hearings
where the witness has testified.
The first step in preparing to turn the defense expert into your witness is
isolating the issues where the witness can help you. Do not fall into the trap
of letting the witness restate the testimony she or he offered on direct.
Organize the transcripts or other material you intend to use to impeach the
witness if they refuse to cooperate. Finally, formalize your approach.
Formalizing your approach requires creating an outline of your cross
examination. As was stated above, cross examining a defense expert witness
is not the time to wing your cross examination or even go with the flow.
You are entering into an area of knowledge where the witness has greater
expertise than you. The outline will allow you to stay focused and stay on
track when the defense expert witness tries to distract the jury.
When
preparing for cross examination have at least two copies of every transcript or
article you intend to use. With two copies, you can give the defense expert
one and keep one for your use. When possible, scan in the most important
parts of the transcript into a computer and use a presentation program like
PowerPoint to allow the judge and members of the jury follow along with
you.
If you decide both to attack the witness and turn the defense expert witness
into your own witness, you have to clearly distinguish the two. If you attack
the witness, his or her qualifications or bias, you will not be able to use the
witness to prove your case. If you attack the science behind the expert
witness’s opinion or the facts relied upon by the defense expert, you can still
use that witness to prove your case in other areas. For example, if you attack
the expert witness’s challenge of accuracy of the Data Master Instrument,
you can still use that witness to prove the defendant exhibited signs of
intoxication when performing the field sobriety test.
Executing the Plan
You know how the witness will testify. You have made your decision to
either attack the witness or turn them. You have created you plan of attack.
Now you must execute the plan. Too many trial attorneys have failed in
their attempts to either attack the credibility of the defense expert or turn the
defense expert because they failed to follow their plan of attack. When the
time comes to cross examine the defense expert it is important to be
methodical, to avoid tangents, to conduct the examination professionally.
Finally, resist the urge to ask that one question too many.
Practice Tip: Be methodical. 125
OWI MANUAL When you developed your plan of attack, you isolated the points you want to
address in your cross examination. You created an outline detailing how
you are going to approach each point. You organized the transcripts,
articles, or other pieces of extrinsic evidence you intend to use during the
cross examination. When you are questioning the expert it is important to
stay on task. Discuss each issue you want to pursue. Do not leave a point
until the witness has either given you the answer you seek or the witness
looks so ridiculous refusing to answer the question your point is made.
Remember, when you have transcripts, articles, and or other evidence where
the witness has made an inconsistent statement in the past, make the witness
reconcile the previous statement with the one they gave you. When a
witness tries to change the topic in the answer, direct them right back to the
question. This is where an outline will be very helpful because you can ask
the same question in exactly the same way multiple times.
When the
witness begins to talk about issues different from your question, stop them.
Argue the answer is not responsive. And then ask the question again.
Another approach is to let the witness finish their statement and when they
stop, ask them if they are finished. Then ask them to answer the question
you asked after repeating the question verbatim. If they still refuse to answer
ask them why they refuse to answer the question. Avoid asking the judge for
help unless it is absolutely necessary. For example:
Q:
Start with your original question….
A:
Defense expert avoids the questions….
Q:
Let me stop you there. You are not answering the question I asked.
Allow me to repeat it for you. Repeat the question.
A:
Defense expert avoids the question….
Q:
Sir or Miss, let me stop you again. There seems to be some confusion
here. I ask you a question and you answer the question I ask. Defense
counsel will have a chance to follow up my questions. Will you agree to
answer the questions I ask?
A:
Usually, you will get a reluctant yes.
Q;
Repeat the question.
A:
More attempts to avoid the question.
Q:
Again stop the witness, Sir or Miss is there a reason you are refusing
to answer the question?
Q:
126
Repeat the question.
CHAPTER 9: THE TRIAL A:
The witness still refuses to answer the questions.
Q:
Let the witness continue with their answer, here you need to ignore
the witness. You can sit down, walk away from the podium and stand by the
jury, or fiddle with your trial note book or file. When the witness has
finished, ask the person if they are done. A little sarcasm goes a long way.
Again explain the process. Ask the question again.
A:
Witness still refuses to answer the question.
Q;
Explain that since he or she refuses to answer a perfectly plain
question, you are going to move on the next question. Ask the next question.
Be methodical. Address every point you intend to address. Do not give up
or get frustrated. When the judge intervenes and suggests that you have
made your point and you should move on, tell the judge you want your
question answered. At this point ask the judge to order the witness to answer
question. If the question is never answered, you then argue that point in
closing.
Practice Tip: Avoid tangents. One of the tricks used by seasoned expert witnesses is to bate you into
leaving the questions you intended on asking and turning the discussion to an
issue they want to talk about. Avoid the invitation to chase tangents offered
by the defense experts. Generally, they will have more expertise. You want
to keep the discussion focused on points you are prepared to discuss and
avoid areas you are not prepared to discuss. You are the person in control of
the examination. Do not turn that control over to the defense expert.
Practice Tip: Conduct the examination professionally. When you conduct your cross examination you should always remain
professional. Treat the examination as a discussion or a debate, not an
argument. If you appear to be overly aggressive with the witness, the jurors
or the judge may hold that against you. You want to appear prepared, in
control, and professional. You want the witness to appear confrontational
and deceptive. Let the defense expert yell, be overly sarcastic, and refuse to
answer the questions. If you allow the witness to make you appear
confrontational, overly sarcastic, or mean, then you will lose credibility with
the jury. This witness likely will be viewed as a professional, at least initially,
so treat them that way.
Practice Tip: Do not ask too many questions. 127
OWI MANUAL When you are examining the witness avoid asking one question to many. If
you are at all like me, you usually know what question that is right after you
ask it. The one question too many is the argument question. It is the
question that asks the witness to draw conclusions based on all the facts you
have brought out during your cross examination. It is the question that
allows the defense expert to form an opinion about his client. Unless you
have a transcript or other evidence where the defense expert has given the
opinion you seek, avoid this question. This is the question that allows the
witness to explain away your evidence. It is the witness’s chance to create
reasonable doubt in your case.
For example, if the defense expert is brought in to attack the reliability of
blood draws conducted using the Michigan State Police Crime Laboratory
evidence kit. During cross examination, the witness concedes to several facts
that support the reliability of the test kit. The prosecutor then asks the
witness, based on this evidence, is it not true that the blood draw using that
kit is in fact reliable. This is the argument question. This is the question that
allows the defense expert to explain away each concession made by that
witness during the examination. This is the question that allows the witness
to create doubt in the case.
Once the defense expert witness has given the information you want, stop
asking questions. Do not ask the question that allows the witness to explain
away the information. Do not ask for the witness’s opinion. Save the
question for either your expert witness to answer or for you to answer in the
closing argument. So, instead of asking the defense expert if based on the
new information the blood draw was reliable, to use our example from
above, argue to the jury the blood draw was reliable using the facts the
defense expert gave you.
SUGGESTIONS FOR CROSS EXAMINATION
In conclusion, when you are prosecuting a case and you learn the defense
intends to call an expert witness, do not lose confidence in your case.
1. You have to be prepared. Learn what the witness will say before they
testify. Become an expert on the facts of your case. Know the
appropriate Michigan Court Rules and Rules of Evidence.
2. Decide if you are going to attack the witness or attempt to turn the
defense expert into your witness. Once this decision is made, plan
your attack. Create an outline to assist you during your cross
examination. It will keep you on track. It will help you avoid
tangents. Remember, this is not the time to wing it.
128
CHAPTER 9: THE TRIAL 3. Follow your plan. Get the information you planned to get. Be
methodical. But, do not ask the argument question. Save that
question for your closing argument.
If you follow these steps you can effectively preclude unqualified experts and
effectively cross examine any expert the defense may call.
CLOSING ARGUMENT
The closing argument is the prosecutor’s opportunity to persuade the jury
that all of the evidence and testimony presented throughout the course of the
trial should convince them beyond a reasonable doubt that the defendant is
guilty of operating a motor vehicle intoxicated. The closing argument is the
place to pull everything together for the jury and tell them why the evidence
shows that the defendant is guilty.
A problem area in OWI cases is that the members of the jury may feel
sympathy for the defendant. Jurors often do not see these defendants as
criminals, but rather as ordinary people just like them. In fact, many jurors
may believe that the defendant could be them but for fortuitous
circumstances. One way to deal with this in an unobtrusive way is to start
closing argument by thanking the jury for their service. Explain that the
prosecutor, on behalf of the prosecutor’s office and on behalf of the People,
appreciate their patience in listening carefully to all of the evidence. Also
explain to the jury that the criminal justice system could not work without
them.
Once you have explained to the jury their crucial role in the criminal justice
system, and explained to them that they are the ultimate fact-finder and will
be responsible for applying the law to the facts, begin building the closing
argument. After thanking the jury, tell them that the judge is going to
instruct them on the elements of the offense. Explain that these elements are
like building blocks, and if they find beyond a reasonable doubt that all of the
elements have been established by the facts of the case, then they MUST find
the defendant guilty. Then begin talking about the various elements. State
the element, and then talk about it in terms of the facts of the case. A good
suggestion is to organize the elements by using a standard framework; use the
jury instructions for OWI, and place them in an outline form. Fit the facts of
the case into the outline, and quote the jury instructions wherever
appropriate. This is important in that it bolsters the prosecutor’s credibility.
Remember, the jury will hear those words repeated by the judge right after
closing and rebuttal arguments.
REBUTTAL
After the defense closing you get the last word. Don’t waste it on rehashing
your initial opening. Take the time to show how defendant’s story is
129
OWI MANUAL improbable, inconsistent, untrue, biased or illogical. If it isn’t a big deal then
don’t highlight it by rebutting it and making it more important to the jury.
Rebut only that which needs rebutting. Again as always, end strong.:
Ladies and gentlemen, a drunk driving case isn’t like a robbery or an assault
where there is a specific victim or target. A drunk driver is like a bullet
addressed to: “to whom it may concern.”
130
C HAPTER 10: S ENTENCING The habitual offenders act, MCL 769.10, can be used to enhance the sentence
of a defendant convicted of felony OWI. Also, a defendant’s prior felony
conviction of OWI or Impaired can be used as many times as necessary to
elevate subsequent related offenses to felony status without violating double
jeopardy. The habitual offender act allows for the sentence of a second
felony to be increased up to one and a half times the maximum term
prescribed for a first conviction. While the statute mandates that second
felony offenders be punished under the statute, “the language [referring to
actual sentencing] is permissive, not mandatory, it fixes only the upper
boundaries of the court’s sentencing discretion.” 255
The applicability of the habitual offender act to OWI felony offenses was
addressed in Bewersdorf. The defendant was charged with the felony of
OWI3. At the time the charges were brought in 1987, the defendant had been
convicted three other times for related offenses: a 1979 drunk-driving
misdemeanor in Indiana; a 1981 Michigan OWI misdemeanor; and a
Michigan UBAL offense which had been elevated to a felony because of the
two prior convictions. Ruling on the defendant’s first contention that felony
OWI convictions cannot be used to charge under the habitual offender act,
the court stated on page 236:
It is reasonable to assume that when the legislature drafted the OUIL
provisions it was aware . . . of the habitual offender act and its direction that
any person who commits a second or subsequent felony within this state shall
be punished in accordance with its terms. If we were to adopt the
construction urged upon us by defendant, it would produce the absurd result
of assuring recidivist drunk drivers that there could be no increase in
punishment for convictions after the third OWI violation.
Turning to the defendant’s second contention that his 1981 OUIL conviction
cannot be used to elevate his current conviction to a felony because it would
place him in double jeopardy, the court disagreed with the defendant. The
court concluded “the double enhancement of which defendant complains
was intended by the legislature. . . . We are convinced that such a
construction gives effect to the Legislature’s purpose.” 256
Two cases serve to expand the result reached in Bewersdorf. In People v Doyle,
the court ruled that Bewersdorf could be applied retroactively. 257
255
People v Bewersdorf, 438 Mich 55; 475 NW2d 231, 235 (1991).
Id. at 239.
257
451 Mich 93; 545 NW2d 627 (1996).
256
OWI MANUAL People v Weatherholt held that when facing a sentence enhancement charge for
OWI, the defendant is not entitled to a “jury for the purpose of determining if
the prosecution can sustain its burden of proving defendant’s prior OWI
convictions.” 258 The court decided that the sections of the drunk driving
statute, MCL 257.625 (11) and (12), do not establish a separate crime but
rather “establish only a sentence enhancement scheme, [so] defendant is not
entitled to a jury trial on the issue of his prior convictions.” 259
In People v Perkins, 280 Mich App 244; 760 NW2d 669 (2008), the Court held
that the People could charge defendants for offenses occurring after the
effective date of the amended MCL 257.625 based on prior drunk driving
convictions occurring more than 10 years before the effective date of the
amendment. 260 On March 23, 2007, the Isabella County Prosecutor’s Office
charged the defendant, Perkins, with OWI-Third Offense. He had four prior
drunk driving convictions, including convictions in 1990, 1992, and 1993.
On May 21, 2007, the Isabella County Prosecutor’s Office charged the other
defendant, Lesage, with OWI-Third Offense. He had three prior drunk
driving convictions, one in 1975 and two in 1991. Because both defendants
had two or more prior OWI related convictions, they were subject to
enhanced sentences under “Heidi’s Law.” Before the amendment, a
defendant was guilty of a felony only if convicted of 2 or more drunk driving
offenses within the prior 10 years. “Heidi’s Law” eliminated the 10-year
time frame and allowed the use of any prior drunk driving convictions in
enhanced sentencing, regardless of the time lapse between it and the present
offense.
The Court concluded the trial court erred in ruling that amended MCL
257.625 violated ex post facto protections.
Additionally, the Court
concluded while “Heidi’s Law” worked to the defendants’ disadvantage, the
amendment did not attach legal consequences to their previous offenses.
“Rather, the amendment made the consequences of their current offenses,
which occurred after January 3, 2007, more severe based on their prior
convictions.”
The court reversed and remanded the trial court’s orders granting defendants’
motion to quash and remanded the cases for further proceedings. The
Michigan Supreme Court affirmed the Court of Appeals. 261
214 Mich App 507; 543 NW2d 34, 35 (1995).
Id. at 37.
260
No. 281957 (Mich App, August 19, 2008).
261
People v Perkins, No. 137477 (Mich Sup Ct, December 18, 2008).
258
259
132
C HAPTER 11: S PECIAL I SSUES ELEMENTS, IN GENERAL
THE DEFENDANT WAS OPERATING A MOTOR VEHICLE.
Practice Tip: Operating means driving or having actual physical control over the vehicle. Ask the jury, “What evidence have you heard that should convince you that
the defendant was operating the motor vehicle?” Begin fitting in the evidence
from the case which shows that the defendant was operating a motor vehicle.
Depending on the case, this may or may not be an area of contention. In an
accident case, where police arrived at the scene at a later time and did not
observe the defendant driving, point out witnesses’ observations, physical
evidence at the scene, the condition of the car, the physical condition of the
defendant (injuries consistent with driving), and the physical conditions
surrounding the car (e.g., footprints away from the car, etc.). If the defendant
was identified behind the wheel, but claims what he or she was doing was
not “operating” the vehicle, use the facts and the case law to show that what
the defendant was doing should be considered operating. In many cases, this
element will not be in dispute. The defendant will admit to driving the
vehicle. If so, simply note this element, and argue that it has been proven
and that the defendant does not contest it.
THE DEFENDANT WAS OPERATING A MOTOR VEHICLE ON A
HIGHWAY OR OTHER PLACE OPEN TO THE PUBLIC OR GENERALLY
ACCESSIBLE
TO
MOTOR
VEHICLES ,
INCLUDING
AN
AREA
DESIGNATED FOR THE PARKING OF VEHICLES .
This element will seldom be contested. Note it and briefly reference the
testimony that indicates where the defendant was driving and that it is a
highway, a place open to the public, or a place generally accessible to motor
vehicles, including an area designated for the parking of vehicles.
THE DEFENDANT WAS OPERATING THE VEHICLE IN THE COUNTY
OF___.
This is the venue element and again will probably not be an issue. If it was
an issue, most likely it would have been resolved by motion prior to the case
reaching the jury, but it should nonetheless be noted and covered briefly in
the closing argument.
These first three elements are common to both OWI and UBAC. It is best to
speak about UBAC first, as it is the per se offense, and some of the
OWI MANUAL arguments about the blood alcohol test will be applicable to establishing the
OWI offense.
ELEMENTS FOR OWI
THE DEFENDANT WAS UNDER THE INFLUENCE OF ALCOHOL WHILE
OPERATING THE VEHICLE .
Practice Tip: Under the influence of alcohol means that because of drinking alcohol, the defendant’s ability to operate a motor vehicle in a normal manner was substantially lessened. The test is whether, because of drinking alcohol, the defendant’s mental or
physical condition was substantially affected, and the defendant was no
longer able to operate a vehicle in a normal manner.
Ask the jury, “How should you make that determination?” The judge is
going to tell you that you should consider the mental and physical condition
of the defendant at the time he was operating the vehicle. Think of the
following factors:
Were the defendant’s reflexes normal?
Here, argue to the jury that the way in which the defendant performed the
dexterity field sobriety tests indicate that the defendant’s reflexes were not
normal. Particularly highlight the dexterity tests that require physical effort
such as the heel-to-toe and the finger-to-nose. Also argue (if applicable) that
the defendant had trouble getting out of the car, that the defendant swayed
when standing, and that the defendant’s speech was slurred.
Was the defendant’s ability to see normal?
Concentrate on the results of any dexterity tests that involved the defendant’s
vision and which indicate the defendant’s ability to see was not normal. Any
additional indicators which show that the defendant’s vision was impaired
should be discussed here. For example, did the defendant hunch over the
steering wheel to see, or did it take an unusually long period of time for the
defendant to notice the officer’s overhead lights and pull over, or did the
defendant have trouble finding relevant paperwork? Did the defendant
experience difficulty producing a driver’s license? All of these things can be
identified as indicators that the defendant’s ability to see was not normal.
Was the defendant’s way of walking and talking normal?
Argue that the physical dexterity tests that involve walking (e.g., the heel-totoe test) show that the defendant’s walk was not normal. Point out any
observations that the officers made regarding the manner in which the
134
CHAPTER 11: SPECIAL ISSUES defendant walked from his or her vehicle or walked at the scene. Point out
that the defendant’s speech was slurred in answering the officer’s questions at
the time of the initial stop as well as when doing the dexterity tests, or while
talking to other officers or the DataMaster operator.
Was the defendant’s manner of driving normal?
Point out to the jury those things that the defendant did while driving that led
to the initial stop. Was the defendant swerving, driving over the center line,
speeding, traveling too slowly, or involved in an accident? Whatever
evidence of abnormal driving there is should be included here.
Was the defendant’s judgment normal?
Any evidence that shows that the defendant’s judgment was affected should
be vigorously argued here. Did the defendant appear confused or dazed?
This is the place to discuss any of the dexterity tests that involve the
defendant using various mental abilities. These tests include reciting the
alphabet, counting backwards, or picking a number. You should point out to
the jury that these are easy tasks, and because the defendant could not do
them correctly indicates that the defendant’s judgment was not normal.
Argue that certain decisions that the defendant made while driving, such as
any erratic driving or lane changes, also lend credence to the inference that
the defendant’s judgment was not normal. Note whether the defendant
made odd statements or behaved in an abnormal manner that indicates that
his or her mental condition was affected and that his or her judgment was not
normal.
After discussing all of the factors, then point out to the jury that the judge
will also instruct them that they should consider the above factors in
determining whether they were caused by consumption of alcohol. Discuss
all of the evidence that indicates the defendant was intoxicated: that the
defendant’s behavior was caused by the consumption of alcohol. Include the
following: the smell of any intoxicants on the defendant’s breath, bloodshot
eyes, any admissions that the defendant made about what the defendant had
to drink, any evidence of alcohol found in the defendant’s vehicle, etc.
Also, argue that the blood alcohol test performed on the defendant is
evidence that the defendant had been drinking alcohol. This is also the place
to point out to the jury that the judge will instruct them that if they find that
there was 0.10 percent or more of alcohol in the defendant’s blood when the
defendant operated the vehicle, the law allows them to infer that the
defendant’s ability to operate a motor vehicle was substantially lessened. At
this point, tie back in the arguments about the BAC test to establish that the
defendant operated a motor vehicle with a bodily alcohol content of 0.08
percent or more, and this gives rise to the legal presumption that the
defendant’s ability to operate a motor vehicle was substantially lessened.
135
OWI MANUAL The arguments will vary from case to case depending on the facts of each
case and its individual strengths and weaknesses. This basic framework will
work for any OWI/UBAC case and allow a prosecutor to highlight the
strengths of each case, and place all of the evidence into a logical format for
the jury to easily follow. Use the same words and the same structure to argue
the case that the judge will use just minutes later to instruct the jury before
they go back to deliberate and render their final verdict. This adds credibility
to the prosecutor’s closing argument.
ELEMENTS FOR UBAC
THE DEFENDANT OPERATED THE MOTOR VEHICLE WITH AN
UNLAWFUL BODILY ALCOHOL CONTENT (0.08 GRAMS OR MORE PER
100 MILLILITERS OF BLOOD, PER 210 LITERS OF BREATH, OR PER 67
MILLILITERS OF URINE).
In this section of the argument, talk about the chemical test that was
administered to the defendant and how it establishes beyond a reasonable
doubt that the defendant operated the motor vehicle with an unlawful bodily
alcohol content. Inform the jury that the judge will instruct them on certain
factors that they should consider in making this determination:
1. Was the DataMaster or blood test technically accurate?
2. Was the equipment properly assembled and maintained and in good
working order when the test was given?
3. Were the DataMaster or blood test results reliable?
4. Was the test given correctly?
5. Was the person who gave it properly trained?
6. Did the circumstances under which the test was given affect the
accuracy of the results?
Next, if the DataMaster was used to ascertain blood alcohol content from
breath alcohol content, this is an appropriate time to direct the jury’s
attention to all of the checks that are used to ensure that the DataMaster test
is accurate. Use the testimony of the DataMaster operator to reiterate the
instrument’s reliability. Refer to the weekly accuracy tests performed on the
DataMaster to ensure that the results are accurate. In addition, refer to the
required 120-day inspections, which are additional safeguards against
inaccuracy. 4 Discuss the 15-minute observation period and its purpose.
Explain that not one but two tests were administered and that those tests
4
See 1994 AACS, R 325.2653(1) and R 325.2653(3) respectively.
136
CHAPTER 11: SPECIAL ISSUES confirm one another. Argue that the operator was trained as a DataMaster
operator and that the test was administered properly. Reiterate the operator’s
testimony concerning training, state certification, the testing procedure, and
the certification process. Go over the operator’s testimony concerning how
that certification is obtained, how many tests the operator has performed in
the past, and how many times the operator has been called upon to testify.
Argue that the defendant’s physical dexterity during the tests that indicate
intoxication also supports the test results.
Often the defense will argue that the DataMaster operator does not know
how the instrument works. The defense will then suggest that if the operator
does not know how the DataMaster operates, the operator cannot know if it
is accurate. Counter this argument by comparing the DataMaster instrument
to a microwave, for example. Most people do not know how a microwave
works, but by reading the manual, they can operate one. And after operating
it, they can tell whether it worked properly. Just because DataMaster
operators do not know exactly how the internal mechanisms of the
DataMaster work, this does not mean that the operators are not qualified to
operate the instrument, nor does it suggest that it does not operate properly.
Another common argument by the defense is that the blood alcohol test was
administered one to two hours after the defendant was driving the vehicle.
Remember, this may allow you to use the PBT results. As a result, there is
no proof of what the defendant’s blood alcohol level was at the time of
driving. First, be sure to ask for a jury instruction indicating that if the jury
finds that the blood alcohol test was given within a reasonable time after the
arrest, the defendant’s blood alcohol level at the time that the defendant
operated the motor vehicle is considered to be the same as at the time of the
arrest. Point this out to the jury. Tell them that it is the law and that they are
required to make this presumption.
Go back to the facts of the case, and ask the jury to use their common sense.
Point out that the officers were with the defendant from the time of the initial
stop to the time that the blood alcohol test was administered and that the
defendant had no alcohol to drink within that time period. Then ask the jury
to think about what common sense tells them. Would the defendant be
getting more intoxicated during this time period, or would the defendant be
sobering up? Common sense dictates that the defendant would be sobering
up. Therefore, any blood alcohol test given one hour later would actually be
LOWER than the defendant’s blood alcohol level at the time of driving. So,
if the defendant’s test result was a 0.12, clearly, using common sense, one
could find beyond a reasonable doubt that the defendant’s blood alcohol
content was at 0.08 percent or higher at the time that the defendant operated
the motor vehicle.
137
OWI MANUAL Additionally, if the arresting officer was asked on direct: “During the time
that you spent with the defendant, from the initial traffic stop to the
administration of the blood alcohol test, was the defendant acting more
intoxicated or did the defendant appear to be sobering up?” The answer to
this question can then be used in the closing argument to emphasize that the
defendant was sobering up, and that at the time the defendant operated the
vehicle, the defendant’s bodily alcohol content would have been higher than
it was an hour later when the chemical test was administered.
After covering the elements of UBAC, begin a discussion of the elements that
will establish OWI. Tell the jury that the judge will instruct them to apply
the following elements to the facts of the case.
SFSTS AND DRUGS
There have not been as many in-depth studies on SFSTs and drugs as there
have been with alcohol. Papafotiou et al 262 examined performance on SFSTs
after consumption of low and high levels of THC. They found the battery
was 65-78% successful at identifying THC-intoxicated subjects, and termed it
a moderate predictor of driving impairment by THC. 263 In another study,
they concluded that SFSTs are not sensitive to low levels of
amphetamine. 264 Bramness et al found SFSTs of predictive value in detecting
benzodiazepine-induced impairment. 265 Carisoprodol has been reported to
produce HGN, 266 as do the benzodiazepines. 267 There is one reported case of
GHB producing both horizontal and vertical nystagmus 268 and all three
NHTSA-sanctioned SFSTs can detect ingestion of GBL. 269 It can be
reasonably assumed that all CNS-depressant drugs have the potential to do
likewise. The published data therefore suggest that SFSTs may be useful in
detecting impairment by CNS-depressant drugs (although not impairment by
stimulants). However, the levels at which these effects are produced have not
been established for individual drugs.
262
Papafotiou K et al, For. Sci. Int., 155(2/3):172-178 (2005); Papafotiou K et al,
Psychopharmacol.,182(1):153-153 (2005); Silber BY et al, Psychophaarmacol,
182(1):153-159 (2005).
263
Papafotiou K et al, Psychopharmacol.,182(1):153-153 (2005).
264
Silber BY et al, Psychophaarmacol, 182(1):153-159 (2005).
265
Bramness J et al, Eur. J. Clin. Pharmacol.,59(8-9):593-601 (2003).
266
Logan B et al, J. For. Sci, 45(3):619-623 (2000).
267
Drummer OH, For. Sci. Rev, 14(1/2):2-14 (2002).
268
Stephens B &Baselt R, J. Anal. Tox.,18:357-358 (1994).
269
Glinn, M. SOFT Meeting Proceedings, P46 (2008).
138
CHAPTER 11: SPECIAL ISSUES Table 1. Reported Responses of SFSTs to Drugs Other than Alcohol
Drug
Study Type
Result
Reference
THC
Lab
SFSTs ID
Presence
Amphetamines
Lab
Do not ID Drug 6
Presence
Methamphetamines
Lab
Do not ID Drug 6
Presence
Benzodiazepines
Lab; Field
HGN Present
7, 9
Carisoprodol
Field
HGN Present
8
GHB/GBL
Case Reports
SFSTs ID Drug 10, 11
Presence;
HGN, VGN Present
Drug 5
DEFINING THE DRUG
A controlled substance is a drug or chemical that appears on a State of
Michigan or federal Controlled Substance Schedule (CSS). These are lists of
compounds thought to have abuse potential when ingested (or, in some
cases, which may be used to manufacture other controlled substances. These
latter are generally not relevant to OWI charges).
Many controlled
substances are those considered "street drugs", such as marihuana and
cocaine as well as K2 and synthetic/designer drugs. However, also listed are
a great many prescription drugs, including common ones such as Xanax
(alprazolam), Valium (diazepam), Vicodin (hydrocodone) and codeine.
Other prescription drugs, such as most antidepressants, are not on the
schedules and hence are not controlled substances.
CONTROLLED SUBSTANCE SCHEDULES
A substance is placed on a CSS according to (1) its perceived abuse potential
and (2) its approved medical uses. Schedule I drugs have high abuse
potential and no approved medical uses; there is no legitimate reason why
someone should have such compounds in their system. Schedule II drugs
have legitimate medical uses and somewhat less abuse potential; Schedule III
drugs even less, and so forth:
139
OWI MANUAL Table 2. Controlled Substance Schedules
Schedule I.
•
No medical
uses, abuse
potential
high.
•
•
Schedule II.
Approved
medical uses;
abuse
potential
high.
Schedule III.
Approved
medical uses;
abuse
potential less
than II.
Schedule IV.
•
•
•
•
•
Most benzodiazepines (Valium, Xanax)
Phentermine
Schedule V.
•
Approved
medical uses;
abuse
potential less
than IV.
•
Some preparations of ephedrine, codeine, morphine,
dihydrocodeine
Over-the-counter ephedrine excepted
Approved
medical uses;
abuse
potential less
than III.
140
•
•
•
•
•
•
•
•
•
•
•
•
•
THC
(marihuana)
and
derivatives
(including
metabolites)
MDMA (Ecstasy)
Designer amphetamines: MDA, DMA, PMA, DMT,
DET, etc.
Hallucinogens: PCP, LSD, mescaline, peyote, psilocin
Heroin
GHB
Morphine
Hydrocodone
Oxycodone
Codeine
Methadone
Marinol (medicinal THC)
Amphetamine
Methamphetamine
Methylphenidate (Ritalin)
Coca leaf extracts and any salt, preparation of derivative
thereof, including cocaine, salts, stereoisomers.
(333.7214.a.iv)
Most barbiturates
Ketamine
Preparations with defined amounts of codeine,
morphine or dihydrocodeine
CHAPTER 11: SPECIAL ISSUES CASE LAW CONCERNING DRUGS
In People v. Feezel, 486 Mich 184, 205; 783 NW2d 67 (2010), the victim was
walking in the paved portion of a 5 lane road. His BAC was .268. It was dark
and raining. The defendant hit the victim and left the scene. The trial judge
precluded admission of any evidence regarding the victim’s intoxication. The
defendant was convicted of operating with the presence of a schedule 1
controlled substance causing death, leaving the scene of an accident resulting
in death, and OWI, 2nd offense.
The defendant appealed, claiming that evidence of the victim’s intoxication
should have been admitted on the issuance of causation, and that the
presence of 11-carboxy-THC in his blood did not constitute a schedule 1
controlled substance.
The majority held that 11-carboxy-THC is not a derivative of marihuana, and
therefore is not a schedule 1 controlled substance. Accordingly, they reversed
this defendant’s conviction for operating with the presence of a schedule 1
controlled substance causing death. Justices Young, Markman and Corrigan
dissented from this holding.
On the other issue, a unanimous court held that evidence of the victim’s
extreme intoxication in this case should have been admitted to support the
defendant’s claim that the victim’s intoxication constituted a superseding
cause of his death. They emphasized that intoxication evidence may not be
relevant or admissible in all cases.
They emphasize, however, “[t]hat evidence of a victim’s intoxication may
not be relevant or admissible in all cases. Indeed, the primary focus in a
criminal trial remains on the defendant’s conduct. Accordingly, any level of
intoxication on the part of a victim is not automatically relevant, and the
mere consumption of alcohol by a victim does not automatically amount to a
superseding cause or de facto gross negligence.”
Instead, under MRE 401, a trial court must determine whether the evidence
tends to make the existence of gross negligence more probable or less
probable than it would be without the evidence and, if relevant, whether the
evidence is inadmissible under the balancing test of MRE 403.
In People v Malik, No. 293397 (Mich App, August 10, 2010), the facts of the
case are that on October 17, 2008, defendant’s automobile collided with the
victim’s motorcycle. Defendant’s blood test revealed four nanograms of
parent tetrahydrocannibinol (THC), and 15 nanograms of 11- carboxy-THC.
Defendant was charged, as an habitual offender, second offense, MCL
769.10, with operating a vehicle while intoxicated and causing death, MCL
257.625(4)(a), operating a vehicle with a suspended or revoked license and
causing death, MCL 257.904(4), and negligent homicide, MCL 750.324.
141
OWI MANUAL In order to secure a conviction for violation of MCL 257.625(4)(a), the
prosecution sought to prove that defendant violated MCL 257.625(8). MCL
257.625(8) criminalizes the operation of a motor vehicle by an individual
who has any amount of a schedule I controlled substance in his or her body,
regardless of whether that individual has exhibited signs of impairment.
Defendant filed a number of pretrial motions, including a challenge to the
constitutionality of MCL 257.625(8). The Barry County Circuit Court ruled
that “MCL 257.625(8) is fundamentally unfair, does nothing to promote
public safety, and bears no rational relationship to any legitimate
governmental interest,” and it invalidated MCL 257.625(8) on due process
grounds.
In Malik, the Court of Appeals reversed and remanded. The Court ruled as
follows:
“Defendant has not alleged that it is unconstitutional to criminalize operating
a motor vehicle while under the influence of THC. Consequently, we hold
that the trial court’s ruling regarding the constitutionality of MCL 333.7212
must be reversed and this matter is remanded for trial. At trial, the evidence
of the positive test for 11-carboxy-THC is inadmissible as it is now irrelevant.
However, the evidence of the presence of THC in defendant's system is still
relevant in determining whether he was operating his motor vehicle while
intoxicated.”
PRESCRIPTION DRUGS
Just as not all controlled substances are prescription drugs, not all
prescription drugs are controlled substances. If it does not appear on a CSS,
it is not controlled. Such drugs are thought to have little to no abuse
potential, but some possibility of toxicity; thus, they must be taken under a
physician's supervision. Examples are antidepressants such as Prozac,
Celexa and Effexor, antipsychotics such as Olanzapine and anticonvulsants
such as Topamax, Lamictal and Neurontin. There is no question that many
of these can cause side effects and driving impairment, especially in a naive
user or in combination with alcohol, but if the compound is not listed on a
CSS, the driver cannot be charged with OWI due to its use.
OVER-THE-COUNTER DRUGS
Many of these are known to cause drowsiness, and in liquid form many have
significant amounts of ethanol. Pseudoephedrine-containing formulations
can, when taken to excess, cause amphetamine-like symptoms. Some are
abused by minors for their stimulant or sedative properties.
142
CHAPTER 11: SPECIAL ISSUES Table 3. Over the Counter Drugs
Drug
Possible Effects
Uses
Diphenhydramine
Sedation
Antihistamine
Pseudoephedrine
Dizziness,
tremor
Guaifenesin
CNS Depression
Cough suppressant
Dextromethorphan
Sedation
Cough suppressant
agitation, Decongestant
PER-SE OUID: USE OF SCHEDULE I/COCAINE
Michigan Vehicle Code 257.625(8):
“A person shall not operate a vehicle…if the person has in his or her body
any amount of a controlled substance listed in Schedule 1 under section
7212….or of a controlled substance described in section 7214(a)(iv) of the
public health code 1978 PA 368, MCL 333.7214.”
Interpretation
The rationale for this law is that Schedule I drugs have no approved medical
uses and high abuse potential; therefore, there is no reason for someone to
possess or use them. This applies to any Schedule I drug, but those most
commonly seen in Michigan are THC and MDMA (Ecstasy).
The second part of the statute, "...or of a controlled substance described in
section 7214(a)(iv) of the public health code 1978 PA 368, MCL 333.7214,”
refers to the Schedule II listing of coca leaf extracts and related compounds:
that is, cocaine. Cocaine is not Schedule I because it may be used as a
topical anesthetic for retinal surgery. However, the amount of cocaine used
for this purpose is minute. Any driver with any detectable amount of cocaine
in his system does not have it there as a result of laser surgery, and may be
charged under the per se section of the statue.
Therefore, any amount of THC, Ecstasy, or other Schedule I drug or cocaine,
in any body fluid is per se evidence of OUID.
Summary and Comparison
Per Se OWI
•
Applies to Schedule I Drugs (THC, Ecstasy) and cocaine
•
No need to prove impairment; presence alone is sufficient
143
OWI MANUAL OWI, Not Per Se
•
Applies to Schedule II – V Drugs (opiates, benzodiazepines, etc.)
•
Must prove impairment (through witness testimony, lab report)
Not OWI (other charges may apply)
The following are not controlled substances and cannot be charged under
MCL 257.625(8):
•
Prescription drugs not on a CSS (e.g., Prozac, Effexor)
•
Over-the-counter drugs (e.g., Robitussin)
•
Inhalants (e.g., Dust-Off) or solvents (e.g., paint thinner)
To Reiterate: Still OWI
•
Schedule II – V drugs are still controlled substances
•
Diazepam, Alprazolam, Meprobamate, Ambien, etc are not on
Schedule I, but Prosecutors may still charge OWI
•
Impairment must be proven; it is not assumed
LABORATORY RESULTS
If the witness observations and results of SFSTs indicate that the subject is
impaired, but the PBT shows no alcohol present, arresting officers should
suspect drugs and seek a blood test. Once upon a time, urine was the
specimen of choice for drug detection due to the relative lack of sensitivity of
analytical equipment; however, this is no longer the case. Urine is still useful
to prove prior exposure in sexual assault and poisoning cases. To prove
impairment in OWI cases, officers should always seek a blood test.
Please note that in Melendez-Diaz v. Massachusetts 270 , at petitioner’s state-court
drug trial, the prosecution introduced certificates of state laboratory analysts
stating that material seized by police and connected to petitioner was cocaine
of a certain quantity. As required by Massachusetts law, the certificates were
sworn to before a notary public and were submitted as prima facie evidence
of what they asserted. These certificates, the Court found, were “functionally
identical to live, in-court testimony, doing ‘precisely what a witness does on
The
direct examination’ 271 and had a primarily evidentiary purpose. 272
Court held that it was a violation of the Sixth Amendment right of
129 S Ct 2527 (2009).
Id. at 2532 (quoting Davis v Washington, 547 US 813, 830 (2006)).
272
Id. at 2533.
270
271
144
CHAPTER 11: SPECIAL ISSUES confrontation for a prosecutor to submit a chemical drug test report without
the testimony of the person who performed the test. The Court noted that
one reason for this is that “[c]onfrontation is designed to weed out not only
the fraudulent analyst, but the incompetent one as well. Serious deficiencies
have been found in the forensic evidence used in criminal trials.” 273
Hospital Labs vs. Private Labs vs. Forensic Labs
Once a blood sample is obtained, there is the question of where it should be
sent for testing. If there has been a serious accident, and the defendant is
being treated at a hospital, it is convenient to use the hospital's lab and
submit their results as evidence. However, we must remember that there are
different types of laboratories, and they all have different missions and
operate under different guidelines. They will have different types of
equipment, different procedures and different priorities. The scope of testing
during a "routine" exam can vary greatly, and may not be apparent by a
casual reading of the lab report.
In general, the following types of laboratories do drug testing:
1. Hospital Laboratories
2. Private Laboratories
3. Forensic Laboratories
The value of the laboratory's report is related not only to what drugs were
reported, but to what drugs were looked for. If the lab did not test for Soma,
a report that does not mention Soma is not a reliable indication of the drug’s
absence. Since no laboratory, not even a forensic lab, can conduct every test
on every sample, the prosecutor needs to know whether the drugs suspected
were indeed tested for, and if so, by what method. If this information does
not appear on the face of the lab report, the prosecutor should contact the
supervisor of the testing laboratory to ascertain the scope of the analyses
done and determine whether further work is necessary.
Hospital Laboratories
•
Primary mission is to screen patient samples for treatment purposes.
•
May test outside “for-profit” samples.
•
Accredited by CLIA or other clinical oversight bodies for patient
samples, but not accredited for forensic work by ASCLD (American
Society of Crime Lab Directors).
Id. at 2537.
273
145
OWI MANUAL •
Usually run immunoassay tests only on patient samples (e.g.
indicates opiates are positive without specifying which drug, and at
what concentration).
•
Positive immunoassay results on patient samples not confirmed by a
second method.
•
Unusual or non-immunoreactive drugs usually not tested for.
•
Fast turn-around time.
•
Personnel often averse to testifying.
Private Laboratories
•
Test samples on request for a fee; used by probation departments,
medical examiners, employers, hospitals, and private individuals.
•
Not accredited by ASCLD for forensic work; may be accredited by
other bodies.
•
Will usually test for whatever drugs requested, but only for these.
•
Screening and confirmation methods will vary.
•
Turnaround times will vary.
•
Will testify for a fee, but out-of-state scientists will be very expensive.
Forensic Laboratories
•
Test samples for police agencies, medical examiners for no charge.
•
Do not test samples for private individuals.
•
Will look for a wide range of drugs, whether specifically requested or
not.
•
Will confirm all positive results by a second method before reporting
•
Accredited for forensic work by ASCLD.
•
Will testify for no charge (but court schedule conflicts common).
•
Lengthy turnaround times.
SCIENTIFIC WITNESSES
In general, scientific witnesses are of two types. The analyst who performed
the work will testify as to what he or she did, and may or may not provide
interpretation of the results. A toxicologist can interpret the lab report, speak
146
CHAPTER 11: SPECIAL ISSUES to the effects of the drugs on performance and perform calculations such as
retrograde extrapolation. MSP toxicologists can also perform rebuttal to
defense experts on these and other issues. See Chapter 8 on pretrial motions.
Use a motion in limine to exclude the expert’s testimony.
If defense experts are engaged to dispute the results, the prosecutor should
thoroughly explore their qualifications to do so. Some defense experts,
having never used a gas chromatograph or mass spectrometer in their careers,
seek to be allowed to give their opinion of the validity of the MSP
Toxicology laboratory's data. They should not be allowed to pronounce as
"experts" upon techniques they have no first-hand experience with.
PROVING IMPAIRMENT
If the subject has THC, cocaine in his/her blood, impairment is assumed and
no further proof required under MCL 257.625(8). If any other non-schedule
one controlled substance is present, or intoxicating substance, evidence of
impairment must be presented. This is done by using witness observations
and laboratory results, and correlating the two.
Witness Observations
Ask the following of the police officer and other witnesses:
1. What type of driving was observed? Were there problems with lane
position, speed or braking, vigilance or judgment (see Section 13.1)?
2. Did the subject exhibit slurred speech, incoordination, lethargy,
stupor, confusion?
3. Did he/she complain of dizziness or nausea?
4. Did he/she have HGN? (alcohol, benzodiazepines, soma, GHB)
5. Did he/she have pinpoint pupils? (opiates)
6. Did the subject exhibit hyperactivity, hyperthermia (sweating),
inability to concentrate, agitation, confusion, paranoia or
hallucinations?
7. Did he/she have dilated pupils? (amphetamines, hallucinogens)
8. Did pupils show slowed or rebound reaction to light? (THC)
9. Did the subject exhibit any other unusual behaviors?
10. Was there an odor of alcohol or marihuana?
11. What SFSTs were given? How did the subject perform?
147
OWI MANUAL 12. Did the subject mention any medical condition or offer any other
explanation for his driving behavior or symptoms of impairment?
A toxicologist or Drug Recognition Expert can testify as to whether these
symptoms are indicative of or consistent with the drugs reported by the
laboratory.
Lab Results: Therapeutic vs. Toxic Levels
The MSP Toxicology laboratory reports levels for the twenty or so most
common controlled substances. Other drugs are reported only as present.
Other than Schedule I drugs and cocaine, there is no legal threshold for
impairment, and thus what any given level means for any specific case is
open to interpretation.
The therapeutic ranges and toxic ranges of many drugs are known. The
therapeutic range is defined as that at which the beneficial effects of the drug
outweigh the adverse effects for most patients. The toxic level is that at which
the adverse effects outweigh the beneficial effects. Keep in mind that even at
the therapeutic range, the drug will have effects. Adverse events are common,
even at low levels, which is why detailed descriptions of side effects are given
out with all prescription drugs. A controlled substance that happens to also
be a medication is NOT innocuous just because a doctor prescribed it. A
prescription means that the patient is expected to receive some benefit with
respect to his medical condition. It does not mean that he will be exempt
from side effects. IT also means he can’t ignore warnings like “do not drive
after taking.”
For many drugs, the “therapeutic” and “toxic” ranges overlap. If a subject is
a naive user, it is more likely that he/she will have adverse effects (including
physical or cognitive impairment) at lower drug levels. Tolerant or
experienced users may be able to have much higher levels in their systems
without obvious signs. Some individuals have naturally higher tolerances for
some drugs, as their livers make high levels of metabolic enzymes. Others
are naturally deficient in such enzymes and show significant impairment
even in the therapeutic range. Even if an individual is tolerant to one drug,
the presence of alcohol or other drugs can alter its metabolism and
exacerbate its effects. There also exists a phenomenon called “hysteresis”;
broadly speaking, a drug has more acute effects when the level is rising than
when declining.
A single concentration on a lab report shows only what level of drug was
present in the subject’s blood at the time of the draw. It does not show
whether the subject was a naive or tolerant user; whether they were on the
upswing or downswing of a binge; how long since they ingested the drug; or
what their metabolic profile is.
148
CHAPTER 11: SPECIAL ISSUES So what does a level mean? It means different things for different people. A
tolerant user can have high levels of a drug in his system without outwardly
obvious effects, whereas a naive or intolerant user can experience significant
adverse events at very low drug levels. Even "lack of observable effects" begs
the question of who is doing the observing: a drug recognition expert, a
paramedic, a lay witness? Signs obvious to one may be invisible to another.
The toxicologist must consider not only the drug level, but the dose taken (if
known), the time taken (if known), the presence of alcohol or other drugs, the
subject’s drug use history and the observations of the witnesses before
rendering an opinion as to probable impairment.
Conclusions
If the witness statements are consistent with the known effects of the drug,
and the lab report says the drug was present, the likelihood is that the subject
was under the influence of the drug.
WHAT IS A DRUG RECOGNITION EXPERT
A drug recognition expert or drug recognition evaluator (DRE) is a police
officer trained to recognize impairment in drivers under the influence of
drugs other than, or in addition to, alcohol. The International Association of
Chiefs of Police (IACP) coordinates the International Drug Evaluation and
Classification (DEC) Program with support from the National Highway
Traffic Safety Administration (NHTSA) of the U.S. Department of
Transportation.
The Los Angeles Police Department (LAPD) originated the program in the
early 1970s. Back then LAPD officers noticed that many of the individuals
arrested for driving under the influence (DUI) had very low or zero alcohol
concentrations. The officers reasonably suspected that the arrestees were
under the influence of drugs, but lacked the knowledge and skills to support
their suspicions. In response, two LAPD sergeants collaborated with various
medical doctors, research psychologists, and other medical professionals to
develop a simple, standardized procedure for recognizing drug influence and
impairment. Their efforts culminated in the development of a multi-step
protocol and the first DRE program. The LAPD formally recognized the
program in 1979.
The LAPD DRE program attracted NHTSA’s attention in the early 1980s.
The two agencies collaborated to develop a standardized DRE protocol,
which led to the development of the DEC Program. During the ensuing
years, NHTSA and various other agencies and research groups examined the
DEC program. Their studies demonstrated that a properly trained DRE can
successfully identify drug impairment and accurately determine the category
of drugs causing such impairment.
149
OWI MANUAL In 1987, NHTSA initiated DEC pilot programs in Arizona, Colorado, New
York and Virginia. The states of Utah, California, and Indiana were added in
1988. Beginning in 1989, IACP and NHTSA expanded the DEC Program
across the country. Currently, 43 states, the District of Columbia, three
branches of the military, the Internal Revenue Service (IRS), and several
countries around the world participate in the DEC Program.
In 1992 the governing board of the International Association of Chiefs of
Police approved the creation of the Drug Recognition Section.
In 2010, the State of Michigan became the 47th DEC State. In April of 2011
it had its first DRE Training.
WHAT IS ARIDE
Advanced Roadside Impaired Driving Enforcement (ARIDE) is a 16 hour
course of instruction designed to bridge the gap between Standardized Field
Sobriety Testing (SFST) and the Drug Recognition Expert (DRE). ARIDE
provides a level of awareness in the area of drug impairment to increase an
officer’s ability to observe, identify and articulate the signs of impairment
related to drugs, alcohol or a combination of both. The ARIDE course
includes a SFST refresher segment which requires the participants to
demonstrate proficiency in HGN, Walk and Turn and One Leg Stand at the
conclusion.
PROVING KNOWLEDGE-PRESCRIPTION (LICIT) DRUGS
All prescription drugs are dispensed with instructions that include a list of the
drug’s possible side effects and warnings of potential hazards. It is standard
language for CNS depressant drugs to warn patients about the potential
dangers of driving while taking the medication. Rarely do such instructions
forbid patients to drive; rather, they warn them to assess the medication’s
effects first, to be cautious about co-ingestion of other CNS-depressant drugs
or alcohol, and to inform their doctor of any side effects and any other
prescriptions taken.
More detailed information regarding drug effects on metabolism and
function is found in the Physician’s Desk Reference (PDR). This comes out
yearly, and is widely used by doctors for prescribing and dosage information.
MEDICAL MARIHUANA LAW
On November 4, 2008, Michigan voters passed Proposal 2008-01: Medical
Marihuana Act. Michigan is the 15th state that has passed laws legalizing
medical marihuana.
•
150
The Act took effect on Thursday, December 4, 2008.
CHAPTER 11: SPECIAL ISSUES •
On April 4, 2009, the Michigan Department of Community Health
(MDCH) adopted rules to implement the Act.
•
The Act permits a physician to issue a written certification stating
that, in the physician’s professional opinion, the patient is likely to
receive therapeutic or palliative benefit from the medical use of
marihuana to treat or alleviate the patient’s debilitating medical
condition or symptoms associated with the debilitating medical
condition.
•
The Act allows registered individuals to possess 2.5 ounces or less of
usable marihuana and no more than 12 marihuana plants kept in an
enclosed, locked facility.
•
The Act permits unregistered patients and primary caregivers to
assert medical reasons for using marihuana as an affirmative defense
to any prosecution involving marihuana.
•
Although the Act prohibits the operation of any motor vehicle while
under the influence of marihuana; it does not make reference to
Michigan’s current law, which prohibits a person from operating a
vehicle with any amount of Schedule 1 controlled substance
(including marihuana) in his/her system, regardless of how little the
amount or how long it has been in the system.
•
The Act does not specify how patients and caregivers would acquire
marihuana for medical purposes, but it allows for the assertion of an
affirmative defense (even for unregistered patients and caregivers) for
the acquisition, possession, cultivation, manufacture, use, delivery,
transfer, or transportation of marihuana or marihuana paraphernalia
for medical use.
•
The Act prohibits smoking marihuana in public places, although it
does not define what would constitute a public place.
As to driving with THC in your system, the Grand Traverse County Circuit
Court Judge ruled as follows:
“Since the Defendant is a registered medical marihuana patient, the Plaintiff
(i.e. Prosecutor) is prohibited from using the standard jury instruction
indicating that the bodily presence of Schedule I controlled substance is a per
se violation of MCL 257.625(8). The MMMA, which supersedes MCL
257.625 et seq., states that qualified patients are proscribed from operating a
motor vehicle while under the influence of marihuana. Therefore, evidence
of impairment is a necessary requirement… The specific circumstances of
151
OWI MANUAL this case require evidence of Defendant’s impairment.”
Opinion).
(Page 10 of the
The Prosecutor in the Koon case filed an application for leave to appeal.
On April 17, 2012, the Michigan Court of Appeals held that “The MMMA
does not provide a protection against prosecution for violating MCL
257.625(8). Driving is a particularly dangerous activity; Schedule 1
substances are considered particularly inimical to a drivers’ ability to
remain in maximally safe control of their vehicles; and the danger of
failing to do so affects not only the driver, but anyone else in the vicinity.”
In People v. Koon, No. 145259, decided May 21, 2013, the Michigan
Supreme Court reversed the Michigan Court of Appeals and reinstated the
judgment of the Grand Traverse Circuit Court, and remanded the case to
the district court for further proceedings.
The Michigan Supreme Court ruled that “The immunity from prosecution
provided under the MMMA to a registered patient who drives with
indications of marijuana in his or her system but is not otherwise under the
influence of marijuana inescapably conflicts with MCL 257.625(8), which
prohibits a person from driving with any amount of marijuana in her or
system. Under the MMMA, all other acts and parts of acts inconsistent
with the MMMA do not apply to the medical use of marijuana.
Consequently, MCL 257.625(8) does not apply to the medical use of
marijuana.”
Therefore the Michigan Court held that the “Court of Appeals incorrectly
concluded that defendant could be convicted under MCL 257.625(8)
without proof that he had acted in violation of the MMMA by operating a
motor vehicle while under the influence of marijuana.”
152
C HAPTER 12: C ONCLUSION Drunk driving prosecutions are by no means easy. They can be successful
with complete preparation. Knowing the common defense tactics and what
to do to beat them is of little use unless the prosecutor is willing to sit down
with the arresting officers and clue them in as to what to expect. Once this is
done, knowing the common defense tactics and how to counter them will
enable the prosecutor to represent the People’s interests to the best of his or
her professional ability.