Traffic

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, March 16, 2011

I’ve Been Charged With a Crime, Now What?

Being charged with a crime can be an intimidating thing for many people.  Courthouses are large and busy places and it is easy to get lost in what is happening in your case.  To clear up some of that confusion, here is a very basic outline of the various court hearings in different kinds of criminal cases.  There may be additional hearings in your particular case, depending upon what you have been charged with and the circumstances of your case.

There are three types of matters that are dealt with in the criminal courts: civil infractions, misdemeanors, and felonies. 

A civil infraction is generally a minor traffic-related offense such as speeding.  These matters have no chance of sending a defendant to jail.  Usually, the primary issues in these matters are the amount of fines and costs and the license consequences imposed by the Secretary of State.  Because of the low severity of these matters, they involve the least number of hearings.  If you are charged with a civil infraction you can expect the following court hearings:

• Arraignment: At this hearing you (and your attorney if you have retained one) appear before a magistrate or judge and enter a plea (generally not guilty) to the offense charged.  The hearing usually happens within 14 days of the charges being issued (generally when you get the ticket).  The magistrate or judge will impose a bond if you have not already done so at the jail.  If you are unable to post the bond at the time of arraignment you will be taken to the jail until you can produce the required funds.  For this reason, it is always a good idea to bring a fair amount of cash with you to the arraignment.  Bonds for civil infractions generally range from $100 to $500.
• Pretrial: This hearing is the first opportunity for you or your attorney to meet with the prosecutor to determine if some kind of plea agreement can be reached.  In a plea agreement, the defendant agrees to plead responsible to some charge, usually lower than the one initially authorized, in exchange for certain concessions on the part of the prosecutor.  In a civil infraction, this could mean that you receive fewer points on your license, or that the fines and costs will be capped, or you may be given more time to pay.  If you reach a plea agreement at the time of the Pretrial conference, you will go before the magistrate or judge who will ask you questions about what happened on the date in question, and about whether you understand what is happening and the potential consequences.  Be respectful when speaking to the judge or magistrate.  This is the person who has the final say on many of the consequences of your charge, so now is not the time to express you distrust of the court system, or your displeasure over appearing before him or her.
• Formal Hearing: This is the big day.  If you and your attorney have not been able to come to a plea agreement with the prosecutor before this hearing, then this is your opportunity to present evidence to the judge about why you are not responsible for the charges.  The prosecutor will put on evidence, most likely including the testimony of the officer who issued the civil infraction ticket, to show that you are responsible for violating a provision of the motor vehicle code.  Your attorney will have an opportunity to cross-examine any witnesses put on by the prosecution and to examine all the evidence.  Then your attorney will put on any evidence that you have provided to show why you are not responsible.  This could include having you testify in court.  After all the testimony has been heard and evidence received, the judge will determine whether or not you are responsible and will impose a sentence (penalty) if you are in fact responsible.  The judge has the final say, though there may be an opportunity to appeal.

A misdemeanor is a crime that is generally punishable by a maximum sentence of one year or less, but certain “high court misdemeanors” include two-year maximum sentences.  They are resolved solely within the District Court.  (Berrien County has a unified Trial Court, which includes both District and Circuit Courts.)  These crimes include higher-severity traffic offenses (such as operating while intoxicated), most theft offenses, some low-severity assaultive crimes, and various other low-severity crimes.  Because these matters involve a chance that the defendant will go to jail, there are constitutional provisions and court rules that guarantee defendants a “speedy trial.”  This means that the defendant will not be held in jail for more than 28 days before the trial is completed, unless that delay is caused by the defendant or his or her attorney. (Other, far less frequent delays are also excluded from the 28 day limitation)  If you are charged with a misdemeanor you can expect the following court hearings:

• Arraignment: This hearing is just as it is described above, except that it will be held before a District Court Judge, rather than a magistrate.  Bonds for misdemeanors generally range up to $5,000 but usually only require the defendant to pay 10% (or $500).
• Pretrial: This hearing is just as it is described above.  In a misdemeanor, a plea agreement could mean that you may not have to go to jail, may only be required to serve probation, or may even be able to only pay fines and costs.  If there is alcohol, controlled substances, or a victim involved in the charges, the judge will set the matter for sentencing at a later date.  If not, then he or she will likely sentence you at the same time as the plea.
• Final Pretrial or Status Conference: This hearing is usually scheduled a day or two prior to the jury trial (see below).  It is your last chance to make a deal with the prosecutor before going through the jury trial process.
• Jury or Non-Jury Trial: This is the equivalent of the Formal Hearing in a civil infraction.  In a misdemeanor case, you can demand to have a jury of six people from your community (your peers) hear your case rather than just the judge.  After all the testimony has been heard and evidence received, the jury (or judge in a non-jury trial) will determine whether or not you are guilty.
• Sentencing: At this final hearing, the judge will impose a sentence (penalty) if you are in fact found guilty.  The judge has the final say, though there may be an opportunity to appeal.

A felony is a high-severity crime, usually defined as a crime that has a possible penalty of more than one year in a state prison.  They are initially addressed by the District Court, but a final determination will be made by the Circuit Court.  These crimes include most drug crimes, most serious assault crimes, weapon charges, and other high crimes.  These are the most serious criminal charges.  Because these matters involve a chance that the defendant will go to jail, there are constitutional provisions and court rules that guarantee defendants a “speedy trial.”  This means that the defendant will not be held in jail for more than 180 days before the trial is completed, unless that delay is caused by the defendant or his or her attorney. (Other, far less frequent delays are also excluded from the 180 day limitation) If you are charged with a felony you can expect the following court hearings:

• Arraignment: This hearing is just as described in the civil infraction section except that it occurs before a District Court Judge.  Bonds for felonies can range into the tens and even hundreds of thousands.  Often the defendant is only required to pay 10% of the amount ordered.  Other times, a bail bondsman can be hired to post the bond for a payment of 10% of the total bond issued.
• Pre-Exam Conference: This hearing in the District Court is the first opportunity for you or your attorney to meet with the prosecutor to determine if some kind of plea agreement can be reached.  However, often you will have to wait until after the Preliminary Examination to enter the plea, because it must be entered in Circuit Court.  This hearing also provides an opportunity for your attorney to request disclosure of important evidence in your case and find out the factual basis behind the charges.
• Preliminary Examination: This hearing in the District Court requires the prosecutor to put forward enough evidence to show that there is “probable cause” to believe that a crime has been committed and that the defendant is the one who committed it.  Probable cause is a very low standard to meet, so very few cases are dismissed at the Preliminary Examination stage.  Basically, this hearing is a check to make sure there is enough evidence to move forward.  In a practical sense, the primary purpose of a Preliminary Examination is to give your attorney a first look at the evidence against you.  If the District Court judge determines that there is probable cause in your case, it will be “bound over” to Circuit Court.  Your District Court bond may be continued or you may be arraigned again in Circuit Court.
• Case Conference: This hearing in the Circuit Court gives you and your attorney a chance to negotiate a plea agreement with the prosecutor. In a felony matter, this could mean that you may be sentenced to time in a local jail instead of a state prison, may only be required to serve probation, or, in rare cases, may even be able to only pay fines and costs.  Following the entry of a plea the Circuit Court Judge will set a date for sentencing and a Presentence Investigation Report will be prepared by the Felony Probation Department with respect to you case.
• Status Conference: This hearing is usually scheduled a day or two prior to the jury trial.  It is your last chance to make a deal with the prosecutor before going through the jury trial process.  It is also an opportunity for your attorney and the prosecutor to make certain that everything is in place for the trial, and for the Circuit Court Judge to make rulings on any pre-trial motions filed by either attorney. 
• Jury or Non-Jury Trial: This hearing is just as described in the misdemeanor section, except that the jury may have up to twelve members.  If the jury finds that you are guilty of the charges against you, the Circuit Court Judge will set a date for sentencing and a Presentence Investigation Report will be prepared by the Felony Probation Department with respect to you case.
• Sentencing: At this final hearing, the Circuit Court Judge will impose a sentence (penalty) if you are in fact found guilty.  The judge has the final say, though there may be an opportunity to appeal.

In any of the above matters, your attorney may schedule additional hearings to try to modify the terms of your bond, limit the evidence that can be used at trial, and assert certain defenses.  These hearings will generally be heard before the Final Pretrial or Status Conference.

Criminal court procedure can be confusing and is often raced through by prosecutors and judges who have heavy caseloads and busy schedules.  A good defense attorney is essential to make sure that your rights and interests are fully represented and that you do not get lost in the shuffle.

* 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, January 05, 2011

Keep Points Off Your License

A brand new law was approved by the Governor on December 16, 2010, which can help you keep points off your license and keep your insurance rates low after receiving a ticket.  The law requires the Secretary of State to offer a basic driver improvement course to certain individuals after receiving notification of a moving violation.  The Secretary of State is required to send you a Notice of Eligibility for this course after they are informed you have received a traffic ticket (unless you fall within certain critera explained below).  If you receive a Notice of Eligibility you have 60 days to successfuly complete the basic driver improvement course before points will be assessed against your license.  The cost of this course cannot exceed $100.00.

You will not be eligible to take the basic driver improvement course if:

1. You have a commercial driver's license.
2. The moving violation you were charged with is a criminal offense (this includes misdemeanors and felonies).
3. The moving violation you were charged with is would result in 4 or more points being added to your driving record.
4. You were charged with:
   1. Careless or Negligent Driving,
   2. Speeding in a Construction Zone,
   3. Speeding in a School Zone, or
   4. Failure to Stop for a School Bus.
5. You were charged with more than 1 moving violation as a result of the same incident.
6. Your license was suspended in connection with the moving violation.
7. You have previously completed a basic driver improvement course.
8. You already have 3 or more points on your driving record.
9. Your license is restricted, suspended, or revoked, or you were driving without a license.

If you receive a Notice of Eligibility and successfully complete a basic driver improvement course within the 60 days, then no points should be added to your driving record, and your insurance company will not be provided any information with respect to that moving violation. 

This is a one-time deal.  Once you complete the basic driver improvement course, you can never take advantage of this statute again, but it should help you in the unlucky event you are charged with a traffic offense.

You can read the original language of the statute on the State of Michigan website.  For more information, see the Secretary of State website.

* 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.