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In The News

Monday, May 14, 2018

The Court of Appeals: You Can Be Guilty of a Crime About Your Driving Without Bad Driving

By Michael Nichols
Categories: Drunk-Driving

An issue that has often perplexed prosecutors was resolving the disconnect between a lack of bad driving in a trial in which the prosecutor charged “operating while visibly intoxicated” as a “lesser” in order to attempt to get a conviction in an otherwise difficult OWI case. East Lansing Criminal Defense Attorney Mike Nichols explains that the problem for prosecutors has traditionally lay in the language of the Standard Criminal Jury Instructions.

Nichols is a criminal defense attorney in East Lansing. He has tried over 100 cases in over 19 years as a litigator based in Lansing. He also wrote THE book on Operating While Intoxicated (OWI) Law and Practice for West Publishing. He says: “standard criminal jury instruction, 15.4 says that to prove the reduced charge of operating while visibly impaired (OWVI), the prosecutor must prove … ‘that because of drinking alcohol, the defendant drove with less ability than an ordinary careful driver. The defendant’s ability to operate must have been affected to the point that it would have been noticed by another person.”

The idea is that without some evidence of “bad driving” the prosecutor could not even ask the jury to convict of the lesser offense of “impaired.” Nichols says: “there were times juries would come back and tell me that they could not agree on whether the person on trial was guilty so they “compromised” and convicted on the impaired charge.” Nichols adds: “under MCL 257.625(3) and MCL 257.319 the difference between the 2 is just a matter of the impact on driving privileges: the impaired allows a driver to maintain a license, albiet a restricted license for 90 days. You lose it for 30 days and then the license is restricted for 5 months after that. Both remain lifetime stains on your criminal record that cannot be expunged.”

Under People v Lambert, some judges were treating the issue as if the prosecutor merely had to request the lesser offense. However, Lambert is an older case that proceeded 2 other cases: People v Cornell and People v Smith. In Smith, the Supreme Court of Michigan held that the facts adduced (presented) during a trial had to fit with the elements of the lesser offense before the court could allow the jury to consider the charge.

In other words, even if “impaired” was a lesser offense of “operating while intoxicated,” impaired requires proof that the driver’s ability was affected by alcohol as opposed to the main charge. The main charge focused on the effect on the person. In other words, substantially affected the mental and physical condition of the person and not focused at all on the person’s driving.

Enter the recent case, People v Mikulen, 2018 WL 1936381 (April 24, 2018). In that case, a jury convicted a citizen of Operating While Visibly Impaired but acquitted him of Operating While Intoxicated. The officer claimed on direct examination that he was “satisfied” that the accused was intoxicated based on the 3 National Highway Traffic Safety Administration (NHTSA) clues of intoxication but acknowledged on cross examination that perhaps he did not understand the clues properly (Mikulen, Slip Op at pp 2-3). The officer also testified that he saw no evidence of impaired driving while he observed the vehicle in motion.

The Circuit Court sitting as an appellate court reversed and held that the statute required proof that the consumption of alcohol affected the operator’s ability to drive. The Court of Appeals reversed in Mikulen and held that the Circuit Court read in to the statute a requirement that was not placed there by the legislature (Mikulen at p 3). The Court of Appeals did rule, however that the prosecutor must adduce proof that the person’s ability to operate his/her vehicle was affected by the consumption of alcohol (Mikulen at p 3). The Court of Appeals acknowledged that “bad driving” was “the best evidence” but not necessarily “required,” Mikulen at p. 4).

What the Court of Appeals did not resolve still is what is the difference between an ordinary careful driver and a driver who has an inability to perform perfectly on the 3 NHTSA Standardized Field Sobriety Tests (SFSTs) yet could not “nail it” regardless of whether that person had any alcohol in his/her system. What is the standard for jurors around Michigan going forward and how do we make drunk driving trials an exercise in fairness and not futility remains a question to be answered in the future. Hopefully, it is a goal for our justice system.

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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.