In The News

In The News

Thursday, November 28, 2019

When the Fight Needs to Go Beyond 15 Rounds

By Michael Nichols
Categories: Michael J. Nichols

(This client agreed to have his name used because the case is already in the media and in the public interest)
Every lawyer has those moments – more than just a few times if you actually try a lot of cases. You mull; you do a deep dive into what you could have done differently and you probably downright sulk a little.

It seems complicated I know but at the end of the day it’s basic transparency and accountability that were offended – but the takeaway is that the Judge found that the MSP supervisor gave misleading testimony and that the lab failed to disclose important information that had a reasonable probability to change the outcome of the case.

362 days ago to the day that Mr. Reynolds went off the road and ended up against a pole on his way home from a bar and the cops arrived and took him to the hospital for a blood draw, a Lansing judge granted a new trial. The MSP lab sent a summary lab report 6 weeks after the accident, that showed him at a .176 g/etoh /100 mL of blood.

He finally gets charged after the summary report makes its way to the City Attorney’s office in Lansing, they review everything and issue a “HIGH BAC.” High BAC is .17. So – we get retained about 3 weeks before the 1st trial date. On the day of trial, the client and I calculate the odds that they won’t be able to make their case very well if we push them to trial. Guess what – we are partially right and partially wrong.

Geoff French from the MSP, who is one of the supervisors “just happened” to have been the analyst in this case. He is not there in the morning but we’re told he would arrive around lunch time to testify about the blood analysis: it’s the biggest piece of evidence in the case because they have to prove Beyond a Reasonable Doubt (BRD) that he was at or above the .17 threshhold at the time of operation. I learn something right before he testifies and only because I’ve done over a hundred of these and I know what to look for – which begs the question: “what would have happened with someone who did not have the experience that I have?”

I go to the city attorney’s office at lunch and I ask to see the “case jacket” for Mr. French. The case jacket is just some basic data about the “run.”

Important point here: when blood is analyzed at the Michigan State Police Toxicology Unit (MSP Tox) they don’t just analyze your blood at all. They mix vials – up to 70 at a time – with calibrators and controls. There are 2 batches with the same “unknowns” (this would be all the people whose blood was taken for evidentiary purposes). They run each batch on a gas chromatograph (for example in this case GC 7 and GC 8). If the 2 runs are within 5% of the quantified value of each other, then the lab will report the mean value. Here I think it was 0.173 and 0.177 that they reported as a 0.176 with an uncertainty range of 0.159 to 0.193 at a 99.7% confidence interval (3 standard deviations) on January 6, 2019.

I discovered when I reviewed something called the “chain of custody” document in the case jacket that this was NOT the first analysis.

In fact it was the 3rd. The 1st 2 were on Dec 20 and 21st and the QC’s failed. Funny enough – French is the supervisor who took this mission over from a very capable analyst named Brina Gendhar recommended shutting down alcohol testing after the first failed run on December 20th. French testified he was “100% confident in the results”; well that’s not very scientific and further – it was totally misleading.

He testified that he started the run on January 4, 2019 and finished it on January 6, 2019. Hmmmmm. It didn’t occur to me when he was on the stand that the 6th was a Sunday. I gave him every opportunity to walk back the “100%.” I said “are you sure?” “100%”? You never make a mistake?” He literally testified “I don’t make a mistake when I am an analyst.”

Anyway – jury convicts after about an hour of deliberations of the high bac. Guilty as charged of having a BAC of .17 or more.

I still obtain aand review my FOI response from MSP and I figure that I’ll go ahead and get the data that I previously requested.

I realize that there is a note on the “Acohol Batch Worksheet” that shows an “FID detector” problem. The flame ionization detector is like the “engine” of the gas chromatograph. I file a bunch of motions for relief from the verdict; a motion for relief from the order; a motion for a judgment notwithstanding the verdict; a motion for a new trial.

Judge Buchanan granted a new trial on November 22nd. She said “government transparency and accountability are at the heart” of our system – pretty amazing. The judge did not call French a liar but said his testimony was not representative of what was going. It is a thunder boom of a ruling. The lab doesn’t get smacked down very often. We shall see how the lab responds.

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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.