In The News

Friday, December 7, 2012


By Michael Nichols
Categories: Drunk-Driving

Michigan's justice system focuses on the wrong data - let's make sure all the data is turned over in every case - not just statistics on how quickly we can push cases through the system. 

The use of arbitrary deadlines to measure the performance of judges leaves us with arbitrary justice. The justice system in Michigan should be the focus of reform and improvement but not like this. We should be looking at ways to make more data available for parties, especially citizens accused of crimes, to potentially provide to juries and judges. The system we have now as it applies to misdemeanor offenses including drunk driving - is one where the citizen is expected to plead guilty or else go to trial without the ability to show the truth to the jury in every case. 

Administrative Order 2011-13 has some judges in fear. The Order says that judges at the trial court level are to manage caseflow. I can live with that. However, the Order goes on to put hard and fast "guidelines" on what managing caseflow means. The Order directs district court judges as follows:

"... a. Misdemeanor. 90% of all statute and ordinance misdemeanor cases, including misdemeanor drunk driving and misdemeanor traffic, should be adjudicated within 63 days from the date of first appearance and 100% within 126 days.

b. Felony and Extradition/Detainer. 80% of all preliminary examinations in felony, felony drunk driving, felony traffic, and extradition/detainer cases should be concluded within 14 days of arraignment and 100% within 28 days." AO 2011-13

Let's say for example, I have a client charged with drunk driving. In the example, the accused is a series VII license holder and has clients in Canada. He faces 2 serious and significant collateral consequences: the loss of his license to sell securities and the loss of his ability to enter Canada.

In this example, the evidence is largely a blood draw.  The basis for the stop was a headlight that was not working and he performed almost as well as anyone can on the sobriety tests as they were administered by the officer.  So, the blood is going to be the key evidence. I send a request to the Michigan State Police Lab invoking the Freedom of Information Act. The lab has 5 days to give itself another 10 days to fulfill my request. It then has the ability to take even more time despite the strictures of the FOIA. The department can tell me that it needs a check for a down payment and once they get the check, then the information will actually be mailed to me.

My recourse is to sue the Michigan State Police for violating the deadlines of the FOIA. However, if the public body gives me the information but gives it to me late, what good does it do my client? If a judge who is concerned about a public admonishment from SCAO on the precipice of an election cycle insists the trial will be held within 60 days of the arraignment then my client is out of luck.

Remember, under People v Greenfield, there is no right to discovery in district court and the party must show good cause. I will most likely never have the ability to look at critical data to determine if there are any issues with the manner in which the blood analysis was performed in my client's case so that I can file a motion to exclude. I may not even have the data before the trial is held if the judge treats the guidelines as standards which should be adhered to with strict compliance. Although I wonder why it is that the same judges who insist on adhering to the SCAO guidelines usually give the arresting officer substantial leeway in adhering to the NHTSA "guidelines" for administering standardized field sobriety tests.

The Order also contains some language that gives the judges wide discretion to manage within the "guidelines." It says:

"The management of the flow of cases in the trial court is the responsibility of the judiciary. In carrying out that responsibility, the judiciary must balance the rights and interests of individual litigants, the limited resources of the judicial branch and other participants in the justice system, and the interests of the citizens of this state in having an effective, fair, and efficient system of justice." AO 2011-13

The "rights and interests of individual litigants ..." is one important prong of our justice system but even more important is this passage:

"...  the interests of the citizens of this state in having an effective, fair and efficient system of justice."

The Supreme Court then sent a letter on July 5, 2012 advising courts and the public of an Administrative Order to implement "performance measures." Beginning in 2013, these performance measures would ostensibly allow for the public to hold judges' feet to the fire for not expediting cases. What about the "effective, fair and efficient system of justice"? If the order said "effective or fair or efficient" then I could see the point of emphasizing the rocket docket approach to quality assurance in our courts.

However, I am willing to bet that if the SCAO or Supreme Court did a poll of people who had been through Michigan's court system that asked: "what was the most important thing to you about access to the courts" and one of the options was "the right to put your best possible case forward and have your day in court, win or lose," that option would definitely get a greater percentage of approval than "my case was decided within 2 months of my first appearance before a judge."

I can understand some of the hue and cry over the seemingly slow-footed justice to civil litigants. Justice delayed is justice denied when it comes to awaiting a financial recovery. However, what should I say to the client when I go through his chromatography data from the Michigan State Police lab, find evidence of a failure to follow protocol or even find evidence of contamination but we just finished his jury trial the week before and he was convicted of a lifetime offense?

If the court wants to truly balance the sometimes competing interests of "effective, fair and efficient system of justice" then I have a suggestion: impose standing discovery orders on every case involving drugged or drunk driving and do not force people to trial until those orders are complied with fully. An example is the Republic of Texas. Yes I said Texas. In the lone star state, judges require the labs to produce certain data. A copy of that standing discovery order can be found at www.nicholslawyers.com/LinkClick.aspx and is thanks to attorneys Justin McShane of Pennsylvania and Josh Lee of Oklahoma as well as Dr. Lee N. Polite of Chicago. These gentleman gave their time to educate judges in Texas. The standing order for discovery is the result.

To me, time is less important than an informed decision, whether it is a client's decision to plead guilty or a jury's decision about proof beyond a reasonable doubt. A more important dashboard report is how much information was made available to attorneys representing accused citizens before that person was forced to make a decision about a trial: often one of the most important decisions that a person can make in a lifetime.

The standing discovery order in Texas is not going to be a burden on the lab of onerous proportion. Already the lab is turning over this data under FOIA. All the fees from the attorneys who request this data under FOIA are going to the FOIA unit - not to fund positions or resources in the lab. This data is already available at the lab - the lab staff merely needs to print and or copy information that is already supposed to be generated. A standing order would be one small step to a uniform system of due process that helps people accused of crimes make informed decisions and helps the people making judgment calls about alleged crimes make informed decisions.

Mike Nichols is author of the Michigan OWI Handbook by West Publishing, co-author on the chapter update entitled "DUI Mathematics" in the book "Inside the Minds" by West, an adjunct law professor at Thomas M. Cooley Law School and the Michigan Delegate to the National College for DUI Defense. He is also going to co-present in a workshop on Laboratory Quality Control at the American Academy of Forensic Science 2013 annual conference in February. He is an associate member of AAFS as well as of the American Chemical Society.

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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.