In The News

In The News

Tuesday, April 14, 2020

THE GOVERNOR OF MICHIGAN DRILLS DOWN ON SOME EVERY DAY LIFE ISSUES AS THE CURVE DATA SHOWS HOPE

By Michael Nichols
Categories: Michael J. Nichols

The governor has re-written the motor vehicle code on a temporary basis to allow for an extension to renew your driver license in the State of Michigan. If your license expired between February 1, 2020 and June 1, 2020, you are encouraged to renew plates and conduct any other business that you are able to conduct electronically, but if you drive without having renewed your license by the deadline IF your license expired after February 1, 2020, you cannot be prosecuted or ticketed for violating MCL 257.904.

6. “Until June 30, 2020, driving with a vehicle registration, operator’s license, or chauffeur’s license that expired on or after February 1, 2020 does not constitute a violation of the Michigan Vehicle Code. Law enforcement officials must not arrest any person nor impound any vehicle as a result of a vehicle registration, operator’s license, or chauffer’s license that expired on or after February 1, 2020 …” (EO 2020-47, L 6)
You now have additional time to comply with the vehicle code without paying a registration fee.
“The Department of State must not assess a late fee at renewal for a license or registration that expired between February 1, 2020 and May 31, 2020, so long as renewal occurs by June 30, 2020. Nothing in this order prevents the Secretary of State from suspending or revoking an operator’s or chauffeur’s license, commercial learner’s permit, vehicle designations, or endorsements on an operator’s or chauffeur’s license pursuant to the Michigan Vehicle Code.” (EO 2020-47-6)
It appears that a lot of moving parts and questions remain for motor vehicle carriers. It is a particularly nettlesome set of laws, regulations and even compacts by which state and federally-licensed commercial motor carriers have to comply if they travel state-to-state. Part of EO 2020-47 addresses this unique area of commerce along with EO 2020-40.
The Michigan Attorney General continues to post “FAQ’s” at the Attorney General’s website, which you can find by going to the State of Michigan website and clicking the appropriate links. Usually, this site lags about a day or 2 before questions are answered. Some of the questions do not appear to be “frequently” asked so much as they are “we-better-answer-that” type questions.
Headlines on one of the other EO’s regarding “liquor buy-back” read to the effect of “Governor allows liquor control commission to buy back booze.” That does not seem to be quite accurate. It is really more like a “cash movement” idea. My first question when I discussed this order at a partners meeting (my wife is my law partner – so our partners meeting is often an impromptu case review over coffee (am) or wine (pm)): “but what about handling all those bottles of booze that were sitting on the shelves as a pool of COVID-germs and then tracking the inventory?” The order is really more like a permission slip to leverage the inventory that is regulated by the liquor control commission (LCC) in exchange for cash:
1. “Upon advancing cash to a licensee pursuant to this buyback program, the Commission will hold legal title to all spirits purchased by the licensee before March 16, 2020 that are in the licensee’s inventory at the time the licensee opts into this buyback program. But, in recognition of the risks of COVID-19 infection and transmission associated with in-person contact, the Commission must not take physical possession of any such spirits except as provided in this order or any order that may follow from it. The licensee must take all reasonable care to account for and preserve the inventory of any such spirits.
2. A licensee that opts into this buyback program may, at any time until the Commission takes physical possession of spirits it owns, repay to the Commission the full amount advanced to the licensee. Upon repayment of the full buyback amount, the licensee will again hold title to the spirits in its possession.
3. The Commission may take physical possession of any spirits held by any licensee to which the Commission holds legal title at any time later than 90 days after the end of the declared states of emergency and disaster.” (EO 2020-46, 1-3).
It is sort of a system within which the licensee can take cash, but hold and preserve the inventory and, when ready, buy it back. Perhaps the idea is that as bars and restaurants receive government loans/grants through the PPP (also known as the CARES Act) or they start getting back on their feet then the different bars and restaurants can buy back their “spirits.” For now, they can get cash against inventory. Think like taking cash from the bank in Monopoly ™ for a house or hotel on Park Place ™.

The governor also formally extended the ban on places of public accommodation, like bars and restaurants from operating with EO 2020-43. It is probably no coincidence that the governor issued 2 EO’s that are designed to provide help to individuals and businesses at the same time that she issued an EO that extends what many people read as a draconian “lockdown” on the economy and on the same day that she spoke to the media on the heels of criticism from libertarian groups, businesses and others.

Last points: there are some helpful resources for the citizen who wants to understand the immediate power shift from 3 co-equal branches of government to a form of government that vests unequal weight to the executive, in order to quickly and effectively protect people and property. It seems as if the history was based on mass insurrection or war on our shores (think War of 1812), but a Supreme Court Opinion that was issued in the face of the flu pandemic of 1918 helps shed some light on how the judicial branch may analyze the definition of “reasonableness” of a president or a governor’s actions in a crisis or disaster:

https://www.oyez.org/cases/1900-1940/197us11

A recent opinion piece written by 2 law professors: Elizabeth Goitein and Andrew Boyle, at the Brennan Center for Justice at NYU law, is a fascinating history of the president’s “secret powers”:

https://www.nytimes.com/2020/04/10/opinion/trump-coronavirus-emergency-powers.html

The Michigan Supreme Court analysis on the Governor’s Emergency Powers under MCL 10.31 et seq AND mcl 30.401 et seq: Walsh v City of River Rouge, 385 Mich 623 (1971) is a very thorough and interesting historical analysis of these powers and the reason for them.

If you want to keep connected with what is going on in Michigan government and the responses and questions that are getting asked and answered (sometimes) – find a media outlet you trust or enjoy and follow and subscribe. A lot of those are available right now (like the NY Times) for no or low cost. 2 of my favorites are the Times and for Michigan government news, Chad Livengood at Crain’s Detroit Business.

Now if your nerves fray over all the economic anxiety and gloom, but you like following legal issues – a real life story that commemorates great and courageous lawyering but warns of the danger of unchecked government conduct and blind acceptance of the explanations of our elected leaders: check out the documentary series “How to Fix a Drug Scandal” on Netflix. This is the real-life story of the Massachusetts Crime Lab Scandal – all of 10 years old, of the perfidious conduct of Annie Dookhan and Sonja Farouk. I followed the scandal as it played out, cite it frequently and heard the lawyers speak. The lesson? Demand; analyze and question the data.

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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.