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Wednesday, July 10, 2019
By Michael Nichols
Categories: Drugged Driving
I sit in frustration. I am trying to organize a course strictly on the Drug Recognition Evaluation (DRE) protocol especially the ability of the DRE to detect “under the influence.” The reason? A couple of reasons are the source of my rancor. First is the most important – the State of Michigan refuses to make DRE training available to anyone other than law enforcement.
For years, I have been sending “sign me up” emails to the Michigan State Police, which puts on various investigative and prosecutorial enforcement ‘training.” The Office of Highway Safety Plaaning (OHSP) and the Prosecuting Attorneys Association of Michigan (PAAM) haave been paying for, sponsoring and putting on trainings. And – they are excluding. Yes – your government has been excluding you.
The reason why I say that PAAM and MSP are excluding you is that attorneys in private practice, with a constitutional obligation not to mention an oath to put the government to its proofs are shut out. Not once have I had any response other than “sorry –we cannot let private citizens take this training.” “This is for law enforcement only.”
The 6th Amendment of the Constitution states:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence,” (USCA 6th, emphasis supplied)
Cases interpreting that last sentence have held that “counsel” means “effective” counsel. How can a lawyer by effective when the magician’s refuse to reveal how they perform the illusion? (As Job Bluth says in “Arrested Development” “It’s not a trick it’s an illusion!)
Let us discuss why this is wrong. It is wrong on 2 levels. First – the government of the state of Michigan has allocated millions of dollars to enforce the new Michigan Recreational Taxation of Marijuuana Act (MRTMA). This budget is where hundreds of thousands of dollars to train police officers and a significant chunk of that is to train future “DRE” officers. You can see some of the numbers right at the website for the OHSP and following the link to the drunk driving enforcement statistics.
http://www.senate.michigan.gov/sfa/departments/highlightsheet/histp_web.pdf
The “job” of the DRE is not to let innocent people go but to “detect” impaired drivers. You can find a DRE description here:
https://www.michigan.gov/msp/0,4643,7-123-72297_64773_22719-383472--,00.html
However, if you read the MRTMA, you will see the disconnect. You see it, right? MRTMA says that a person over 21 can operate a motor vehicle so long as he/she is not “under the influence.” The DRE is trained to detect whether or not a person has taken 1 of 7 categories of drugs and whether or not the person is impaired by that/those drugs.
The test for the DRE is “impairment.” That is defined under MCL 257.625 as a person who drove with “less ability” than an ordinary careful driver. That is a much lower affect on the body than “under the influence.” Under the influence means the substance (such as the psychoactive component of marijuana; a prescription drug or ethanol) has significantly affected the person’s mental and physical condition.
Ultimately, and this is he 2nd frustration, the constitution recognizes only the criminal defense attorney as having a role in our judicial system.
Why are we not allowing defense attorneys to the same DRE school like we are cops and prosecutors? When the government actor with a badge makes an arrest and the prosecutor issues a charge, the government has all the resources. All of them. Why hide what the government actors are learning? People will not get a constitutionally effective defense until we stop the sleight of hand that is the training on investigative tactics that are tax dollars are funding.
So until then – I will keep working on organizing trainings that are affordable for the public defenders who are tasked with maintaining the constitutional duty of providing effective defense to those charged with crimes by the government. Easy? No way. Do I feel like I am Sisyphus pushing the rock uphill? Only when I get frustrated. But the only way to take the fight to the government is to keep asking questions and outworking the man.