Michigan Criminal Defense Law Blog

Most police agencies in Michigan will make a video recording of their roadside investigation. Depending on where the arrest occurred, this might be either a dashcam or a body cam. As a general rule of the discovery process, the police are required to provide your local OWI lawyer with a copy of the videotape. So what happens if the video is not made or after being made is not produced?

One non-Michigan case finding that dismissal was the appropriate remedy for the lack of a video is State v. Henkel, 404 S.C. 626, 746 S.E.2d 347 (S.C. App., 2013). In this case, there was a 911 call reporting that a motorist was driving a truck erratically on a South Carolina freeway. The caller followed the truck until it hit a bridge and overturned into a ditch. She observed the driver get out of the truck and jump over a fence. Eventually, the police caught up to the driver, who was then being examined by EMS in an ambulance. The officer read the driver his Miranda rights and performed a horizontal gaze nystagmus (HGN) test inside the ambulance. From this, the officer determined that the driver was under the influence and moved him from inside the ambulance to the side of his patrol car.

There, he was asked to state the alphabet and could not, he admitted that he was the driver of the wrecked truck. He was arrested and placed in the officer’s patrol car, where the officer turned the dashboard video camera to face the driver and read him his Miranda rights again. Prior to trial, the driver moved to dismiss the indictment on the ground that neither the field sobriety tests nor the initial Miranda warning was videotaped as required by section 56–5–2953 of the South Carolina Code.

Barone Defense Firm Partner Mike Boyle recently saved his client’s dental license by persuading a judge to dismiss her case. The dismissal was final. In addition to the possible loss of her dental license, this client’s case was also complicated by her need to travel to Canada. This dismissal makes it so that the client will never have to worry about these things again.

Here’s How Mike Earned This Stunning Dismissal

This woman was stopped because the police claimed that she did not activate her headlights. After the dentist hired the Barone Defense Firm to represent her, the first thing Mike did was visit the scene with his client, and inspect the car. He soon realized that the police officer was mistaken, and that realization informed his approach to the defense of her case.

Yes, Expert Witnesses and Expert Lawyers are Often Necessary for a Michigan DUI Case.

The reason this is so important is that a Michigan drunk driving arrest will nearly always involve scientific evidence such as a breath or blood test. When death or serious injury is involved, additional expertise in traffic reconstruction is necessary. Retaining a lawyer who understands this evidence is essential, and so is a lawyer who knows how to find and use appropriately qualified expert witnesses.

A new United States Supreme Court case involves just these issues[i]. Here the court took up a case involving the interplay between the requirements for effective assistance of counsel and the necessity to hire expert witnesses – just as with any Michigan drunk driving case.

The case involved a murder occurring during an after-hours robbery of a restaurant. There was a similar robbery at another restaurant, which also involved a shooting. A total of six .38 caliber bullets were retrieved from both crime scenes. A .38 caliber revolver was found at the suspect Hinton’s home, and the prosecutor sought to link Hinton to both murders. The revolver and six bullets were the only physical evidence. Thus, the state’s case turned on whether the prosecutor’s expert witnesses could match the gun to the bullets found.

If you tend to get drunk easily because you don’t drink much, have taken certain kinds of medication, or have not slept, then you are better off keeping this information to yourself. In other words, if you are stopped because an officer suspects drunk driving, you are well-advised to exercise your Fourth and Fifth Amendment rights and remain silent. Yes, you should cooperate and provide necessary information such as your identity, proof of insurance, and such. Just be sure not to make any potentially incriminating statements.

A DUI case out of Oregon addressed this issue and helped to answer this question. In this case, the defendant was convicted of driving under the influence of intoxicants after a jury trial. At trial, the court told the jury that the defendant had a physical condition that increased their susceptibility to the influence of alcohol than he or she would otherwise have under the influence of intoxicants. (Miles instruction)[i].

Although the defendant and their OWI defense attorney objected to the giving of the Miles instruction, the court reasoned that the instruction was justified because the defendant informed law enforcement officers at the time of his arrest that he had taken pain medication for a bad knee. On appeal, the defendant argued that the trial court erred in giving the Miles instruction. To provide this instruction in Oregon, the government must show that there is “evidence that the defendant’s condition made him more susceptible to the influence of alcohol.” [ii] In this case, the State admitted that there was no such evidence, and that the evidence about the pain medication for a bad knee was insufficient for the jury to make such an inference. Thus, the trial court was reversed because the trial judge should not have given the instruction.

There are three categories of consequences that can arise out of a drunk driving conviction. The punitive sanctions are those that the judge imposes after you are convicted, and include things like jail time, fines and costs, community service, etc. The driver license sanctions are those imposed by the Secretary of State.

For example, once you’ve been convicted of a high BAC/Super-Drunk case, your license will be suspended for 45 days followed by 320 of restricted privileges with an ignition interlock device.

But, the most significant consequences of a drunk driving conviction are often the collateral consequences.

Michigan has been particularly hard hit by Covid-19, and our Governor Gretchen Whitmer has responded with a series of executive orders effectively ordering residents into house arrest. Under the most recent shelter in place Executive Order 2020-42, citizens are allowed to leave their homes only for things necessary to sustain life, such as to obtain food and medicine. Even then, Michigan’s governor has ordered that citizens make maximum use of delivery services, meaning there is a near total lock down until May 1, 2020. Consequently, all bars and sit down restaurants remain closed, as are public gatherings of almost any size, even in one’s home.

While alcohol consumption in Michigan is on the rise during the pandemic meaning people are now drinking copious quantities inside their homes, often as part of a virtual happy hour with friends, they are not leaving their homes or driving their cars. As a result, the Michigan’s economy is at a near halt, and with it, so too are DUI arrests.

On top of this, police resources are strained by covid-19 personnel losses, and the already strained police forces are refocusing efforts toward enforcing the governor’s shelter in place orders, a misdemeanor punishable by up to a $1,000 fine and up to 90 days in jail. With the roadways nearly empty, and fewer police on patrol, far less traffic stops are occurring.

It has been widely reported in a rather sensational story that a 6-time murderous drug dealer from the City of Detroit avoided jail by becoming a DEA informant. The big questions are what did the DEA know about their informant’s background, and did the information he provided justify the informant’s extraordinary deal?  According to Barone Defense Firm attorney Keith Corbett, the DEA knew about their informant’s dangerous criminal history and the DEA’s deal was a bad one.

This story, which was widely reported in the Detroit area news media, was eventually picked up by the United Kingdom’s Daily Mail.  The individual involved is Kenyel Brown, and according to the UK Daily Mail article “Brown was hired as an informant for the Detroit Police Department and the Drug Enforcement Administration in a joint task force.”  Our local paper, the Detroit Free Press reported that Brown was released from custody at the request of federal law enforcement officials. It was U.S. District Judge Bernard Friedman who actually signed the release.

In addition to the alleged 6 murders, Brown had other criminal legal problems.  For example, he violated the terms of his probation by failing to remain abstinent from drugs and alcohol, missing mandatory meetings, and, picking up a drunk driving charge!  Judge Freedman was aware of all this, but decided to give Brown a break because, in addition to all of his criminal wrongdoing, he was “doing some of the right things” too.