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In The News

Saturday, July 27, 2019

A Reckless Driving Trial That Never Should Have Been - A Not Guilty Story from the Ausable River Canoe Marathon

By Michael Nichols
Categories: Michael J. Nichols

In reality it was a case that never should have been charged. It never should have started. The officer never should have put my guy in handcuffs – certainly not after a 3 minute – yes 3 minute investigation. But he did. It was almost offensive. The best part? It was on video.

Reckless driving was the primary charge out of 2 counts in the complaint. It was the count that mattered. The reason is that it carries with it a 90 day hard suspension of your driving privileges. 90 days – no driving. Period. It is pretty draconian.

Reckless driving: to get a conviction the prosecution must prove beyond a reasonable doubt that the operator drove with willful or wanton disregard for the safety of persons or property. More than just carelessness but with a disregard for the possible risks.

This makes such a case tough sledding on a prosecutor. Speed is something we generally recognize is a dangerous act. Here, the conduct was the accused, from downstate Michigan, driving his car past a barricade with road closed signs in downtown Grayling, driving up Michigan avenue east of James and parking his car at a place called “Bear’s Den” to pick up pizzas.

It was the cold, rainy eve of the Ausable River Canoe Marathon in 2018. There was almost no one around. It was well below 60 degrees farenheit by 8:15 pm when this all happens. Let’s go back to the officer: a young, Grayling Public Safety Officer who was just on another call when he was contacted by the employee of the chamber of commerce named Hayley. Hayley was working the festival and saw this car make its way up Michigan avenue. He was wearing a body worn camera. Therefore, his entire 16 minute investigation including arrest and transport of my client are captured in clear audio and video. He put my client in handcuffs. He did NOT have to – he could have given him a misdemeanor citation to appear in court and start the case -- and it was about as “small town” as you can get. Did I mention my client was a volunteer for the canoe marathon and it was his 2nd year ever?

Hayley was probably having a bad night. She probably went off the handle and beefed about this flatlander driving his car down the fire lane of the beer tent area and next thing you know the only 6 people attending the thing are witnesses to a crime. But the tragedy about it is that no one has that car travelling faster than 20 miles an hour down this unobstructed lane off to the side of the closed off block between Peninsular and James. Careless? Maybe. Failing to obey a traffic control device? Absolutely. Reckless? No way.

So my client is charged with one count of reckless – and remember you can have no driving privileges for 90 DAYS if you are convicted. He’s charged with a second count of operating on a sidewalk. Which is bizarre to me but it is actually a charge under the penal code that is not even reported to the Secretary of State if there is a conviction.

Here is a real frustration of our current legal system in Michigan: 364 days later we finally get a trial on July 26, 2019. We go through adjournment after adjournment. Only 1 day is set aside for jury trials in this district – and that is not unique. We are back-burnered and it is terribly frustrating for my client.

What makes it even more weird – one aspect is my personal psyche – we have our trial on the day that is the exact same event day for the exact same festival and the streets are blocked off with a much more effective and robust barricade strategy. I tell the judge to please tell the jury NOT to consider that the barricades in 2018 were the same as they are today. He agrees. The judge was fair and really pretty good in terms of legal knowledge and analysis. He shut me down a couple of times but it went both ways.

Another aspect is that I grew up just south of Grayling in Higgins Lake. In 20 years I have never been back to try a case. I was worried about who would know me, would I look bad in front of the jurors? Would I feel humiliated if the jury convicted? I spent way too much time fretting about this before I realized “this is not about you – this is about the facts and about the client. The prosecutor has to prove a state of mind (willful and wanton) so go do your thing.” Then I worried about the “do NOT screw this up” – it is like that 5 foot putt for a birdie to win the match: It is not a tough shot but you absolutely cannot miss.

The jury we chose in about an hour was very fair. We left one juror on the panel who had many family members in law enforcement. But he had a way about him. He proved to be the foreman. The other tough thing about this trial is that I had not had an opportunity to really write out every single thought and every single maneuver and response. That is bad. It is bad because it can become a habit. It is a hint to myself that maybe I am too busy right now. I knew the facts, I memorized all the written statements (they were not especially long) and I memorized almost every minute of the video from the body worn camera.

Thanks to the team of earnest clerks and assistants at the Nichols Law Firm, we had taken freeze frame photos of certain parts of the camera footage. We were ready to show the jury certain things: 1. The weather and how nasty it was; 2. The lack of ANYBODY around this area where my client supposedly created a danger; 3. ANOTHER vehicle that entered into the area within 20 minutes of my client’s supposed transgression and 4. Perhaps most importantly, the rush to judge, cuff and stuff my client by this young officer.

The prosecutor called 6 witnesses including his officer. Hayley led the charge. She was the classic “cannot answer the question she was asked but answered the question she wanted.” The prosecutor elicited from every one of them (initially I objected then realized the judge would allow their lay opinion under rule 701) “did that car increase the risk of danger to the people who were there?” “YES! (gasp)”

I simply pointed out 2 basic themes: this was 364 days ago and with all the music, beer and other obstructions your ability to see was not great and 2: c’mon – the weather sucked and there was no one there. Hayley estimated the number at 35. If there were 35 people in the relevant location -- they were cloaked in an invisible rain poncho on the video.

So the jury acquitted: on both counts. Even though the last “lay” witness claimed he saw the tires of my client’s car go up over the curb (I pointed out to him that such an observation was not in his written statement and that he told me on the phone “not on the sidewalk”). It took 90 minutes for the jury to return its verdict. I did not think it would take that long. I had a nice visit with the judge and a chance to catch up with Tammy my assistant – you would be surprised at how hard it can be for us to communicate on things with a busy practice. Tammy came up to help me especially watch the prospective jury and jury trial. Jake, the new law clerk got to test drive his skills on trial pad. Wendy also came up the night before to keep me calm and keep me company. At least we had a nice dinner at Paddle Hard after a long day involving ANOTHER case here in East Lansing.

Then I got to see the sheer relief on my client’s face after the judge announced the verdict and live the joy and mirth and merriment of his family as we left the courthouse. The jury foreman reportedly told my client that “they went too far.”

If that is what he said and that is what those jurors felt then I am content – because when the government goes too far -- checking that reach is my calling.

I thought a lot about posting in social media for people to be wary of coming to Grayling or to this Ausable River prerace festival. To make trolling statements and such and I will not express those thoughts here. But look at it this way: people are people. Grayling is a beautiful place with beautiful people and a pretty dang good judge. It just so happens that a combination of a bad choice by my client (that really should have been a traffic ticket) led to worse choices and then a case that never should have gone to trial. As one juror reportedly told my client “this was the most expensive pizza you ever had.” It is too bad. I know he can and will move on. He has a spotless criminal history, 2 great adult kids and a very good job. In fact, as he said, he is volunteering at the race again this year and plans to keep doing it. Go justice.

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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.