In The News

Monday, March 15, 2010

Are Substance Abuse Assessments Appropriate Bond Conditions?

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


Michigan’s Constitutional Philosophy – and Some Courts in Other States Say “No”
By Michael J. Nichols and Fred E. Bell, The Nichols Law Firm, PLLC
            The flavor of the month for dealing with suspected drunk drivers in extreme cases like felonies, accidents involving injury or death, even some 1st time defendants with an extremely high BrAC or BAC[1] seems to be ordering the defendant to undergo a substance abuse assessment. In many of those cases, the bond order also requires the defendant to follow the recommendations and/or sign a release so that the probation agent can receive and review the assessment. At least one potential client has asked about whether such a bond condition is appropriate. Our position is that requiring a defendant to follow any conditions beyond the least restrictive means to ensure the defendant’s appearance and the public safety contravenes our state’s constitutional protection against unreasonable detention.
On the other hand, a standard approach to a drinking and driving case is to have the client undergo an assessment immediately and start following the recommendations. The reasons are to show the client’s high prospects of rehabilitation and that the client has an open mind to the possibility of an alcohol use problem. That approach does not mean that you will cede liability and advise your client to give up his/her right to trial. It simply means that you are pursuing a strategy, even if it is a contingency plan, to prepare for the possibility of a sentencing hearing. After all, if the client is convicted of a drinking and driving offense he or she will have to undergo a substance abuse assessment pursuant to statute anyway. 
This article will address whether to argue to an arraigning court against imposing a bond requirement that the defendant undergo an alcohol assessment and even further, execute a release so that the probation office/court can have access to the assessment’s results.
            Our firm learned from handling cases stemming from Cedarfest ’08 in the City of East Lansing, that at least one judge from the 54B District Court believes that MCR 6.106 provides enabling authority to an arraigning court to require that defendants from the so-called riot cases abstain from alcohol, submit to daily PBT’s to ensure compliance with the no alcohol provision of the bond order and even abide by a curfew.[2]
            I have often argued to judges that the Defendant is entitled to bond unless the case falls under one of the specific provisions of MCR 6.106 such as treason, murder, CSC I, violent crimes or with individuals who meet certain criteria.[3] Therefore, the most lenient approach to bond should be taken so long as the Court is satisfied that the defendant will return to court and/or conditions have been imposed if and as necessary.[4] Michigan’s Constitution commands that all defendants are entitled to bail and bail may only be denied to those charged with certain crimes or, those charged with a violent felony for the 3rd time within 15 years of 2 prior violent felony convictions.[5] Further, the Constitution commands that the amount of bail shall not be excessive.[6] The amount of bail is excessive when it goes beyond that which is deemed necessary to assure adequately the defendant’s return to court to answer the charges.[7]
Judges often indicate in those aggravated drinking and driving cases in which they order that the defendant not only refrain from drinking alcohol, but also undergo a substance abuse assessment or other conditions, that they have such authority to do that under MCR 6.106(D). What the Court Rule misses though, is that Michigan’s constitutional history requires that the least restrictive means be employed to ensure the return of the defendant and the protection of society.  The Court Rule plainly says that the court “may” include certain conditions such as undergoing a substance abuse assessment, obtaining certain educational services or even seek employment.[8] That does not mean that the Court “shall” or even “should.” The term “may” is a much different word and it is a much different standard than “shall.” So, if you want to argue to the Court that it does not need to impose one of the conditions enumerated in the court rule, what is the standard? Check out Pressley v Lucas.[9] In Pressley, a group of defendants who were arrested on traffic offenses, sued the then sheriff of Wayne County, William Lucas.[10] The defendants sued after certain district judges ordered that traffic defendants had to post a surety bond instead of the 10% bond as required by statute.[11]
        In Pressley, the Court held: “We hold that a person accused of committing a traffic offense or a misdemeanor has an absolute statutory right to post bail under the 10% Bail deposit act and that he may not be required to furnish a surety bond.” Pressley, supra at 312. Since, OWI and OWVI constitute both a traffic offense and a misdemeanor, they are included in the category of offenses in which 10% bail under the Bail deposit act is an absolute right. 
There is a statute on bond: MCL 780.61, et seq. The bond statute was amended subsequent to the Pressley case. Nowhere in the statute is the court enabled or prevented from imposing conditions.[12] However, since Pressley, the 10% bail requirement was modified. Now, the statute states that the bond, in short, shall be reasonable. Specifically, the amount of bail shall not be oppressive, commensurate with the nature of the offense and consider the defendant’s prior record and financial ability.[13] The statute now says that a defendant charged with a traffic offense or misdemeanor may be released on his own recognizance if the court is satisfied that the defendant will appear to answer the charge.[14]
The approach to successfully arguing the issue to the court may be to prevail upon the court not to construe the court rule in a way that is contrary to the language and the intent of the constitution. If the court, at arraignment, wants to order a substance abuse assessment on a drinking and driving case, what is the specific reason? What will a substance abuse assessment do to ensure that the public is protected? It is one thing to order abstinence from alcohol and pbt’s or other verification of compliance. All of these issues should be addressed on the record pursuant to the court rule and for appellate review of the bond conditions. If a client faces the revocation of bond due to the failure to comply with a bond condition that he undergo an assessment then you should make a record in the event that you need to ask a reviewing court to reinstate pre-trial release.
            Other states have held that requiring a defendant to undergo a substance abuse assessment goes beyond imposing “only those conditions necessary to ensure the defendant’s return and the safety of the community.” The conditions, if any, that are imposed on a defendant at arraignment must be the “least restrictive necessary” to ensure the defendant’s return and the safety of the community. Those citations are available if you wish to contact us through the internet at www.nicholslawyers.com.
54b District Judge Richard Ball will educate and enlighten on the issue of bond on the second Tuesday of November. Judge Ball will speak at noon at the State Bar Building near Townsend and Kalamazoo at the monthly meeting of the ICBA Criminal Law Section. You do not need to be a member to attend. The cost is $10.00 for lunch and will surely be helpful to veterans and newer attorneys alike. Please RSVP to Kristen Kemp at kkemp@inghambar.org
            Mike Nichols, The Nichols Law Firm, PLLC, focuses his East Lansing-based practice on criminal defense, especially complex drunk driving, drug crimes, homicide and CSC as well as divorce/custody and covenants against competition. He is chair of the ICBA Criminal Law Section, a member of the National College of DUI Defense, the National Association of Criminal Defense Lawyers, the Criminal Defense Attorneys of Michigan and the State Bar of Michigan Criminal Law Section. mnichols@nicholslaw.net
            Fred Bell, The Nichols Law Firm, PLLC, focuses his practice solely on criminal defense and he has litigated several drinking and driving cases including pre-trial motions and the standard for court appointment of an expert witness. Mr. Bell was an attorney with the State Appellate Defender Office (SADO) until his retirement in 2006. fbell@nicholslaw.net

[1] BrAC = breath alcohol content; BlAC = blood alcohol content.
[2] PBT = Preliminary Breath Test.
[3] MCR 6.106(1)(a).
[4] The authority for a conditional release bond is found at MCR 6.106(D).
[5] MI Const art I, §15.
[6] MI Const art I, §16.
[7] People v Edmond, 81 Mich App 743 (1978).
[8] MCR 6.106(2)(a)-(o)
[9] 30 Mich App 300 (1971).
[10] William Lucas became a footnote in political history when he was absolutely thrashed by former Governer James Blanchard in the 1986 gubernatorial election.
[11] MCL 780.62.
[12] In fact, (4) 780.64 enables an arraigning court to order a defendant to temporarily surrender his driver’s license in certain situations.
[13] MCL 780.64(1).
[14] MCL 780.62.


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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.