Wednesday, November 02, 2011 Driving with Suspended License - important changes to process of notice
Court of Appeals finds mailing certificate testimonial in nature; state clerks must testify in open court on notice element in DWSL cases
A recent Michigan Court of Appeals decision could create a logistical nightmare for prosecutors seeking convictions in driving-with-suspended-license (DWSL) cases while bolstering a defensive argument that an accused charged under the DWSL statute, MCL 257.904, had not been adequately notified of his/her license suspension or revocation prior to the date of the offense.
The basis of the Court’s decision in People v. Nunley hinged upon its interpretation of the Confrontation Clause found in the Sixth Amendment of the U.S. Constitution, which provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with all witnesses against him…” MCL 257.904 requires, among other things, proof that the accused had been given notice, in accordance with MCL 257.212, that his/her license had been suspended or revoked prior to the time of the offense. In almost all cases, notice of suspension or revocation is provided by mail from the Secretary of State to the driver and is accompanied by a certificate of mailing “naming the person to whom notice was given and specifying the time, place and manner of giving notice.” MCL 257.212. (Personal delivery of the notice of suspension or revocation is also permitted under the statute though certification is still required). In all cases prior to Nunley, the submission into evidence of the certificate of mailing the notice of suspension or revocation was permissible as proof that the suspended or revoked driver had been made aware of the loss of driving privileges prior to the time of the DWSL offense.
In Nunley, however, the Court concluded that since proof of notice prior to the commission of the DWSL offense is an element of the crime under MCL 257.904, the admission into evidence of a certificate of mailing as proof of that element violates the defendant’s right to confront the testimony being offered against him, in this case that of the Secretary of State clerk who issued the certificate of mailing. The Court based its opinion on a U.S. Supreme Court case, Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), which refused to admit a lab analyst’s report as evidence on the grounds that the results of the report were being offered to prove a fact in question at trial without permitting the defendant the opportunity to cross-examine the report’s author. Because the certificate of mailing in a DWSL case is being offered to prove or establish some fact at trial, the Court characterized the certificate as testimonial in nature thereby preventing its admission under the public record exception to the hearsay rule. “Indeed,” the Court said, “the certificate of mailing is the only evidence of proof of notice and is solely created for that singular purpose.”
The decision will likely be appealed to the Michigan Supreme Court, but in the interim the Court’s ruling has given defense attorneys a valuable bargaining in the litigation process. To defend against challenges to the notice element of MCL 257.904, prosecutors are now faced with the expense and inconvenience of transporting a Secretary of State clerk from Lansing to their courtrooms to testify that he/she did in fact send the notice of suspension or revocation out as indicated in the certification of mailing. This burden, in light of the significant number of DWSL convictions garnered annually in this state, could have a dramatic effect on the approach county prosecutors take in bringing these cases to trial, a result defense attorneys can smile upon.
*Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.
Wednesday, December 29, 2010 The New Drunk Driving Statute - An Overview
The new Operating While Intoxicated statute went into effect on October 31, 2010. This is a long and complicated statute, and it may be easy to get confused as to where you fit in. The following is intended as a very basic overview of how the statute works.
What can you be charged with?
The statute outlines three (3) separate possible charges:
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Operating While Intoxicated
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Operating While Visibly Impaired
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Allowing Another to Operate While Intoxicated
You can be charged with Operating While Intoxicated if you are under the influence of alcohol and/or a controlled substance, or if your blood alcohol content (BAC) is over the legal limit. Operating While Visibly Impaired applies if due to having consumed alcohol and/or a controlled substance, your ability to operate a vehicle has been visibly impaired. You can be charged with Allowing Another to Operate While Intoxicated if you own or are in control of a vehicle and you allow another person to operate that vehicle knowing that he or she is intoxicated or visibly impaired.
What is the legal limit for BAC?
If you are stopped by the police and they believe that you are under the influence of alcohol and/or controlled substances, they will often request that you take a Preliminary Breath Test (PBT), and later a DataMaster breath test. If you refuse both, they may seek a warrant to obtain a blood sample and test it to obtain a BAC.
If you are over the age of 21, then the legal limit is 0.08 grams per 100 milliliters of blood, 210 liters of breath, or 67 milliliters of urine.
If you are less than 21 years of age then any presence of alcohol is prohibited unless taken for generally recognized religious purposes. The statute defines "any bodily alcohol content" as 0.02 grams per 100 milliliters of blood, 210 lieters of breath, or 67 milliliters of urine.
Under the new law, if your BAC is above 0.17 grams per 100 milliliters of blood, 210 lieters of breath, or 67 milliliters of urine, special additional punishments can be imposed if you are convicted (see below).
What can you expect if you are convicted?
In any criminal case, the trial court judge has some discretion in sentencing. However, this discretion is limited by the statute. Here is a very basic description of the penalties. Please note that in any case there may be additional or different punishments depending on the circumstances.
For Operating While Intoxicated or Operating While Visibly Impaired:
If this is your first offense:
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Community Service of up to 360 hours;
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Up to 93 days in jail;
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A fine of $100.00 to $500.00, plus other fines, costs, and fees; and
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Your vehicle may be immobilized.
If your BAC is 0.17 or above and this is your first offense:
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Community Service of up to 360 hours;
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Up to 180 days in jail;
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A fine of $200.00 to $700.00, plus other fines, costs, and fees; and
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Your vehicle may be immobilized.
If this is your second offense within 7 years:
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Community Service of at least 30 days and not more than 90 days;
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At least 5 days, and up to 1 year in jail;
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A fine of $500.00 to $1,000.00, plus other fines, costs, and fees; and
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Your vehicle will be immobilized or forfeited.
If you have 2 or more previous convictions under any part of this statute:
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A fine of $500.00 to $5,000.00, plus other fines, costs, and fees, and either
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At least 1 year, and up to 5 years in prison, OR
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Probation with at least 30 days and up to 1 year in jail, AND
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Community Service of at least 60 days ant not more than 180 days.
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Your vehicle will be immobilized or forfeited.
The above penalties are changed if:
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As a result of your drunk driving someone is seriously injured or killed;
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You were driving with a person under 16 years of age in the vehicle;
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You were under 21 when you drove impaired.
Please note that there will be consequences with respect to your Driver's License if you are convicted with either Operating While Intoxicated or Operating While Visibly Impaired.
For Allowing Another to Operate While Intoxicated, the penalty could be:
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Up to 93 days in jail; and/or
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A fine of $100.00 to $500.00.
This penalty is increased if the driver caused serious injury or death by drunk driving.
You can see the original language of this statute on the State of Michigan website
A charge under this statute has serious consequences, but there are defenses. It is very important if you have been or believe you may be charged that you contact our office as soon as possible.
* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime. |