In The News

Thursday, September 17, 2009

It's a Bird! It's a Plane! It's Superdrunk!

By Michael Nichols
Categories: Michael J. Nichols, Drunk-Driving, OWI

Superdrunk legislation leads the way amongst new statutes that affect criminal law practictioners

By Michael J. Nichols
The Michigan Legislature passed the so-called “Super Drunk” bill. It will lead to more confiscatory measures for citizens who are arrested and provide an allegedly high breath/blood alcohol sample. You have time to start preparing for “Super Drunk” charges. The statute will not start spooking the citizenry until Halloween, 2010. Here is a summary of the statute:
Super Drunk Driving PA 461 and PA 462 of 2008; MCL 257.625k et seq.
These acts add a criminal penalty for operating a vehicle with a BAC of 0.17 or more. In essence, it increases the penalties from a 93-day misdemeanor to a 180-day misdemeanor. It also mandates participation and successful completion of a treatment program for at least one year.
If the person has no prior convictions, the Secretary of State shall suspend the person’s license for one year. After 45 days, the Secretary of State may issue the person a restricted license. The restricted license also requires that an ignition interlock device be placed in the offender’s vehicle.
Additionally, if a hearing officer issues a restricted license requiring an ignition interlock device based upon multiple drunk driving convictions, the ignition interlock device must not be for less than one year. The interlock device cannot be removed without the Secretary of State issuing an order for its removal.
This law takes effect on October 31, 2010.
­­The trick is not without a treat in 2010. The legislature eliminated the crime of negligent homicide. A charge that was ambiguous and was, oddly enough, difficult to prosecute and defend, was eliminated with the crime of “Death or Injury During Moving Violations. Here is a summary:
Death or Injury During Moving Violations PA 463, PA 468, PA 442, PA 446 and PA 465 of 2008
Establishes penalties for moving violations that seriously injure or kill another person as follows:
1.      A moving violation that causes serious impairment of a body function of another person is a misdemeanor punishable by up to 93 days imprisonment, a fine of $500 or both.
2.      A moving violation that causes the death of another person is a misdemeanor punishable by imprisonment of up to one year or a maximum fine of up to $2,000 or both.
3.      Reckless driving that causes serious impairment of a body function of another person is a felony punishable by imprisonment for up to five years or a fine of between $1,000 and $5,000 or both, and vehicle immobilization.
4.      Reckless driving that causes the death of another person is a felony punishable by imprisonment for up to 15 years or a fine of $2,500 to $10,000, or both and vehicle immobilization.
The law requires the Secretary of State to assign six points to a person’s driving record for any of the above offenses, and four points for a moving violation resulting in an at-fault collision as well as revoke a drivers license for a conviction of a reckless driving causing either serious injury or death. A moving violation that results in serious injury or death will result in a one year license suspension. A person convicted of any of the above offenses is required to pay $1,000 driver responsibility fees each year for two consecutive years.
The law eliminates the offenses of felonious driving and negligent homicide.
The law takes effect on October 31, 2010.
The legislature took action to go after the colors in the “Gang Involvement” Act.
The Act states as follows:
Gang Involvement PA 564 and PA 565 of 2008; MCL 750.411u
These Public Acts establish felony penalties for a person who committed a felony for which his or her gang membership or association provided the motive, means or opportunity. The felony would be punishable by imprisonment for up to 20 years.
A sentence imposed would be in addition to the sentence imposed for the conviction on the underlying felony and could run consecutively with that sentence.
“Gang” would mean an ongoing organization, association, or group of at least five people, other than a nonprofit organization that identifies itself by all of the following:
-        A unifying mark, manner, protocol, or method of expressing membership, including a common name, sign or symbol, means of recognition, geographical or territorial sites, or boundary or location.
-        A established leadership or command structure.
-        Defined membership criteria.
“Gang Member” or “member of a gang” would mean a person who belongs to a gang.
Effective on April 1, 2009.
               Ground control to Major Tom: the satellite is watching you if you were charged with domestic violence. Conviction, guilt or degree of evidence pursuant to MCR 6.201 matters not:
GPS Tracking Domestic Violence Cases - PA 192of 2008; MCL 765.6b
The Public Act allows a judge or district court magistrate to order a defendant charged with a crime involving domestic violence, to carry or wear a global positioning system (GPS) device as a condition of bond. If the judge or magistrate makes GPS monitor a condition of bond, the defendant is only allowed to be released if he or she agrees to pay the GPS costs or perform community service in lieu of payment.
It also allows the court, with the victim’s informed consent, to order the defendant to give the victim a device to receive information from the defendant’s GPS device. The victim may give the court a list of areas from which he or she wanted the defendant excluded and requires the court to consider the request. The victim may request that the court terminate his or her participation in the GPS monitoring of the defendant at any time.
It requires the court to instruct GPS monitoring system to notify the proper authorities if the defendant violates the bond conditions. It also requires that the court impose a condition of bond that the defendant not purchase or possess any firearm.
Effective July 10, 2008
Another statute that already has caused consternation is the provision allowing police to take DNA from a citizen who has not been convicted of anything but merely charged with a violent crime:
DNA Testing For Arrests of Certain Felonies – PA 308, PA 522; PA 534 and PA 535 of 2008; MCL 750.520m
These Public Acts require DNA testing of all persons arrested for a violent felony. Previously, DNA testing was required for individuals who were convicted of felonies or certain other offenses. If a DNA sample given after an arrest is adequate for analysis, then another sample is not required if a conviction is entered.
“Violent felony” is defined in the Corrections Code to mean the following crimes: felonious assault; assault with intent to murder; assault with intent to do great bodily harm less than murder; assault with intent to maim; assault with intent to commit felony not otherwise specified; unarmed robbery; armed robbery; first degree murder; second degree murder; manslaughter; kidnapping; prisoner taking a hostage; leading, taking away or enticing a child under 14; mayhem; CSC 1st, 2nd, or 3rd degree; armed aggravated assault; carjacking; use of force or violence to commit a larceny of money or property.
The Acts also directs the use, collection, storage and disposal of the samples by the State Police.
Effective July 1, 2009
The Michigan Legislature enacted a number of laws that affected the criminal arena. You can hear more about them at the September meeting of the criminal law section. The meeting will be at the state bar of Michigan headquarters on Townsend between Kalamazoo and Washtenaw.
Michael J. Nichols is chair of the ICBA Criminal Law Section. He practices exclusively in DUI and criminal defense, mnichols@nicholslaw.net; Brian R Laxton is a partner at Mertens, Laxton, Clement, PLLC.

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.