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New Developments in DUI Defense

The following is information on the most recent laws and trends in Michigan DUI cases.

4/1/2009 Updates to Administrative Rule R 325.2651 added.

3/1/2007 Patrick Barone named executive editor of the DWI Journal.

2/2/2007 New administrative rules for breath testing. See below.

1/9/2007 – New Law Removes Michigan’s 10 Year Look-Back for Felony Drunk Driving

7/31/2006 – Michigan Supreme Court Rules that Implied Consent Violations No Longer Require Dismissal – (see People v. Anstey below)

Administrative Rule R 325.2651 et seq.

DEPARTMENT OF STATE POLICE
SPECIAL OPERATIONS DIVISION
TESTS FOR BREATH ALCOHOL

(By authority conferred on the department of state police by 1945 PA 327, MCL 259.190, 1949 PA 300, MCL 257.625h, and 1994 PA 451, MCL 324.80181 AND MCL 324.82137)

R 325.2651 Definitions.

Rule 1. (1) As used in these rules:
(a) “Acts” means 1945 PA 327, MCL 259.190, 1949 PA 300, MCL 257.625a, 1993 PA 354, MCL 462.359, 1994 PA 451, MCL 324.80181, MCL 324.81136, AND MCL 324.82137.
(b) “Class I operator” means a person who is trained to administer a preliminary breath alcohol analysis on a preliminary breath alcohol test instrument specified by the department.
(c) “Class II operator” means a person who is certified by the department to administer an evidential breath alcohol analysis on an evidential breath alcohol test instrument specified by the department.
(d) “Class IIIA operator” means a person who is certified by the department to do all of the following:
(i) Administer an evidential breath alcohol analysis on an evidential breath alcohol test instrument specified by the department.
(ii) Administer a preliminary breath alcohol analysis on a preliminary breath alcohol test instrument specified by the department.
(iii) Verify and calibrate, as required, preliminary breath alcohol test instruments.
(iv) Train personnel in the use of preliminary breath alcohol test instruments.
(e) “Class IIIB operator” means a person who is certified by the department to do both of the following:
(i) Administer an evidential breath alcohol analysis on an evidential breath alcohol test instrument specified by the department.
(ii) Provide service on an evidential breath alcohol test instrument as specified by the department.
(f) “Class IV operator” means a person who is certified by the department to do all of the following:
(i) Administer an evidential breath alcohol analysis on an evidential breath alcohol test instrument specified by the department.
(ii) Administer a preliminary breath alcohol analysis on a preliminary breath alcohol test instrument specified by the department.
(iii) Verify, calibrate, and service, as required, evidential and preliminary breath alcohol test instruments.
(iv) Train class I, class II, class IIIA, and class IIIB operators in the use of evidential or preliminary breath alcohol test instruments.
(g) “Department” means the department of state police.
(h) “Evidential breath alcohol analysis” means chemical analysis of an essentially alveolar breath sample that indicates a specific result in grams of alcohol per 210 liters of breath.
(i) “Evidential breath alcohol test instrument” means an evidential breath testing device that indicates a specific result in grams of alcohol per 210 liters of breath.
(j) “Preliminary breath alcohol analysis” means chemical analysis of essentially alveolar breath samples that indicates the presence or absence of alcohol in a person’s blood.
(k) “Preliminary breath alcohol test instrument” means a breath alcohol screening device that indicates the presence or absence of alcohol in a person’s blood.
(2) Terms used in the acts have the same meanings when used in these rules.

History: 1954 ACS 78, Eff. Feb. 28, 1974; 1979 AC; 1984 MR 3, Eff. Apr. 7, 1984; 1988 MR 8, Eff. Aug. 31, 1988; 1992 MR 3, Eff. Apr. 7, 1992; 1994 MR 12, Eff. Dec. 28, 1994; 2003 MR 18, Eff. Sept. 30, 2003.

R 325.2652 Approved equipment.

Rule 2. (1) Evidential and preliminary breath alcohol test instruments shall be tested by, and shall meet the existing model specifications for evidential breath alcohol analysis as established by, the United States department of transportation, national highway traffic safety administration. The specifications, identified as “Model Specifications for Evidential Breath Testing Devices,” 49 F.R. p 48855 et seq.,
(December 14, 1984), as amended by 58 F.R. p 48705 et seq.,
(September 17, 1993), are adopted in these rules by reference. A copy of the specifications and a current conforming products list are available from the Superintendent of Documents, United States Government Printing Office, Washington, DC 20402, or from the Michigan State Police, Special Operations Division, 714 South Harrison Road, East Lansing, Michigan 48823, at a cost as of the time of adoption of these rules of $5.00.
(2) If the United States department of transportation discontinues the testing of evidential breath alcohol test instruments or the issuance of model specifications for such testing, only those instruments tested and approved by the department shall be used.
(3) Equipment, including accessories and supplies, for determining evidential or preliminary breath alcohol analysis shall be approved by the department before use.
(4) An application for equipment approval shall be submitted to the department.

History: 1954 ACS 78, Eff. Feb. 28, 1974; 1979 AC; 1984 MR 3, Eff. Apr. 7, 1984; 1988 MR 8, Eff. Aug. 31, 1988; 1992 MR 3, Eff. Apr. 7, 1992; 1994 MR 12, Eff. Dec. 28, 1994.

R 325.2653 Equipment accuracy.

Rule 3. (1) An evidential breath alcohol test instrument shall be verified for accuracy at least once during each calendar week, or more frequently as the department may require, by a class II, class IIIA, or class IIIB operator. The test for accuracy shall be made in a prescribed manner using a standard alcohol solution that is approved by the department. For the instrument to meet the requirements for accuracy, a test result of .076 to .084, inclusive, shall be obtained when using a controlled device that delivers an alcohol vapor concentration of .080 grams of alcohol per 210 liters of vapor. Other vapor concentrations shall show proportionally accurate results.
(2) A preliminary breath alcohol test instrument shall be verified for accuracy at least monthly, or more frequently as the department may require, by a class IIIA or class IV operator. The test for accuracy shall be made in a prescribed manner using a standard alcohol solution that is approved by the department. For the instrument to meet the requirements for accuracy, a test result of .076 to .084, inclusive, shall be obtained when using a controlled device that delivers an alcohol vapor concentration of .080 grams of alcohol per 210 liters of vapor.
(3) Approved evidential breath alcohol test instruments shall be inspected, verified for accuracy, and certified as to their proper working order by a certified class IV operator or the instrument manufacturer’s authorized representatives approved by the department within 120 days, inclusive, of the previous inspection.

History: 1954 ACS 78, Eff. Feb. 28, 1974; 1979 AC; 1984 MR 3, Eff. Apr. 7, 1984; 1988 MR 8, Eff. Aug. 31, 1988; 1992 MR 3, Eff. Apr. 7, 1992; 1994 MR 12, Eff. Dec. 28, 1994; 2003 MR 18, Eff. Sept. 30, 2003.

R 325.2654 Equipment maintenance.

Rule 4. (l) The maintenance and repair of equipment approved by the department for evidential and preliminary breath alcohol analysis shall be at the expense of the agency using the equipment, unless arrangements exist with the department to have this service provided by class IIIB or class IV operators who are certified by the department or provided by the instrument manufacturer’s authorized representatives approved by the department.
(2) Subsequent to repair or maintenance, and before being placed in service, preliminary and evidential breath alcohol test instruments shall be verified for accuracy in accordance with the provisions of R 325.2653 and records of verification shall be kept as required by the department.

History: 1954 ACS 78, Eff. Feb. 28, 1974; 1979 AC; 1984 MR 3, Eff. Apr. 7, 1984; 1992 MR 3, Eff. Apr. 7, 1992.

R 325.2655 Techniques and procedures.

Rule 5. (1) A procedure that is used in conjunction with evidential breath alcohol analysis shall be approved by the department and shall be in compliance with all of the following provisions:
(a) Evidential breath alcohol test instruments shall be operated only by class II, class IIIA, class IIIB, and class IV operators.
(b) All analyses shall be conducted using the department-approved procedures and report forms as required.
(c) Prescribed records of operation, analyses, and results shall be maintained at the instrument location and copies shall be forwarded to the department as required.
(d) The department shall test samples from each lot of ampoules of chemical solution used in the state in conjunction with evidential breath alcohol test instruments. The department shall certify for use those lots of ampoules that are found to be proper in chemical composition.
(e) A person may be administered a breath alcohol analysis on an evidential breath alcohol test instrument only after being observed for 15 minutes by the operator before collection of the breath sample, during which period the person shall not have smoked, regurgitated, or placed anything in his or her mouth, except for the mouthpiece associated with the performance of the test.
(f) A second breath alcohol analysis shall be requested from the person being tested and administered, unless the person refuses to give the second sample or a substance is found in the person’s mouth subsequent to the first test that could interfere with the test result. Obtaining the first sample is sufficient to meet the requirements for evidentiary purposes prescribed in 1949 PA 300, MCL 257.625c. The purpose of obtaining a second sample result is to confirm the result of the first sample. A second sample result shall not vary from the first sample result by more than the following values:
Table 1

Allowable variation of
Blood alcohol           second sample result
concentration           range from the first
0.00 – 0.14           +/- 0.01
0.15 – 0.24           +/- 0.02
0.25 – 0.34           +/- 0.03
0.35 – or more           +/- 0.04

If the variation is more than that allowed, a third breath sample shall be requested from the person being tested and a third result may be obtained. If the third result does not conform to the allowable variation of either of the first two tests, as established in table 1, the person shall be requested to submit a blood or urine sample for analysis by an approved laboratory.
(g) The results of a breath alcohol analysis of a person’s breath shall be expressed in terms of grams of alcohol per 210 liters of breath, truncated to the second decimal place. For example, 0.237 found shall be reported as 0.23.
(2) A procedure that is used in conjunction with preliminary breath alcohol analysis shall be approved by the department and shall be in compliance with all of the following provisions:
(a) Preliminary breath alcohol test instruments shall be operated only by operators trained by class IIIA or class IV operators to operate such equipment.
(b) A person may be administered a breath test on a preliminary breath alcohol test instrument only after it has been determined that the person has not smoked, regurgitated, or placed anything in his or her mouth for at least 15 minutes.
(c) Prescribed records shall be maintained at the instrument location and copies shall be forwarded to the department as required.
(3) A person’s welfare shall be protected by requesting medical assistance if the person has a body alcohol concentration of 0.35 or more.

History: 1954 ACS 78, Eff. Feb. 28, 1974; 1979 AC; 1984 MR 3, Eff. Apr. 7, 1984; 1988 MR 8, Eff. Aug. 31, 1988; 1992 MR 3, Eff. Apr. 7, 1992; 1992 MR 4, Eff. Apr. 7, 1992 (correction); 1994 MR 12, Eff. Dec. 28, 1994; 2003 MR 18, Eff. Sept. 30, 2003.

Editor’s Note: An obvious error in R 325.2655 was corrected at the request of the promulgating agency, pursuant to Section 56 of 1969 PA 306, as amended by 2000 PA 262, MCL 24.256. The rule containing the error was published in Michigan Register, 2003 MR 18. The memorandum requesting the correction was published in Michigan Register, 2004 MR 5.

R 325.2656 Operator certification.

Rule 6.
(1) Evidential breath alcohol test instrument operator certification training courses supervised by the department are offered only to authorized police agency personnel.
(2) Certification on evidential breath testing equipment requires an applicant to successfully complete a course of instruction that is approved by the department.
(3) The operation of a preliminary breath testing instrument requires an applicant to successfully complete a course of instruction as approved by the department.
(4) Evidential breath alcohol test instrument operators shall successfully pass the examinations given by the department to obtain certification as an operator. Upon successful completion of the examinations, a person shall be issued a certification card which shall remain the property of the department. In the case of failure to pass a prescribed examination, a second opportunity to take the examination shall be provided as the department may direct. Failure to successfully complete the examination a second time necessitates repeating the operator course of instruction to qualify for certification.
(5) An operator shall comply with all applicable department rules, policies, and procedures or his or her certification may be suspended and his or her certification card forfeited to the department. Requests for reinstatement of operator certification shall be made to the department in writing and, upon approval, may require attendance at, and the successful completion of, a certification school.

History: 1954 ACS 78, Eff. Feb. 28, 1974; 1979 AC; 1984 MR 3, Eff. Apr. 7, 1984; 1988 MR 8, Eff. Aug. 31, 1988; 1992 MR 3, Eff. Apr. 7, 1992; 1994 MR 12, Eff. Dec. 28, 1994.

R 325.2657 Rescinded.

History: 1954 ACS 78, Eff. Feb. 28, 1974; 1979 AC; 1984 MR 3, Eff. Apr. 7, 1984; 1992 MR 3, Eff. Apr. 7, 1992; rescinded 1994 MR 12, Eff. Dec. 28, 1994.

R 325.2658 Class IV operator certification.

Rule 8. (1) The department shall certify selected class IIIA and class IIIB operators as class IV operators after the selected operators successfully complete additional department-approved training.
(2) A class IV operator shall serve as an agent of the department to perform the following functions regarding evidential breath alcohol test instruments:
(a) Service, repair, and calibrate equipment.
(b) Conduct inspections for compliance with applicable department rules, policies, and procedures.
(c) Serve as an instructor at operator certification courses as directed by the department.
(3) Work assignments and activities regarding the breath alcohol testing program shall be coordinated by the department.

History: 1954 ACS 78, Eff. Feb. 28, 1974; 1979 AC; 1984 MR 3, Eff. Apr. 7, 1984; 1992 MR 3, Eff. Apr. 7, 1992; 1994 MR 12, Eff. Dec. 28, 1994.

R 325.2659 Laboratory tests.

Rule 9. Laboratory testing of blood, urine, or other bodily substances for its alcohol content, for the purpose of the acts, shall be made by the department or a laboratory either licensed under 1968 PA 235, MCL 325.81 to 325.92 or approved by the department. The director of the department shall approve equipment, personnel, and procedures to be used in the determination of the alcohol content of blood, urine, or other bodily substances for the purpose of enforcement of the acts. Failure to maintain the standards prescribed by the department may result in the limitation or revocation of the laboratory license issued under 1968 PA 235 or approval of the laboratory by the department to conduct alcohol tests.

History: 1954 ACS 78, Eff. Feb. 28, 1974; 1979 AC; 2003 MR 18, Eff. Sept. 30, 2003.

NEW BREATH TESTING RULES OFFER THE ACCUSED LESS PROTECTION AGAINST UNRELIABLE EVIDENCE

On February 2, 2007 Michigan’s new administrative rules for breath testing went into effect.  The rules largely codify the existing case law, and in this regard it seems clear that the new rules would encourage more uniform application of that law.  An example of this can be seen in the amended Admin. R. 235.2655(e) “Techniques and procedures” which now states that the 15 minute observation can be performed by more than one officer “working in concert,” and that during this observation all officers need not “stare continuously” at the subject but instead can tend to the more important tasks of completing paperwork or entering data into the breath tester.  The rule now specifically states that observation breaks of “only a few seconds” do not invalidate the test, and the subject now need only be “within the field of vision” of one of the observing officers. These changes are consistent with People v Wujkowski, 230 Mich App 181, 583 NW2d 257 (1998) (holding that a six second violation of the 15 minute rule did not require suppression of the test results).

Another important change is in Admin. R. 325.2653(1) “Equipment accuracy” where the time periods within which accuracy checks must occur is broadened.  The rule has always required that the breath testers be verified “at least once during each calendar week, but the rule now indicates that such checks may now occur as many as 13 days apart.  Strangely, this seems somewhat in conflict with a change in Admin. R. 325.2651(d) “Definitions” where the rule now indicates that a “calendar week” means 12:01 a.m. Sunday to midnight Saturday.  These changes are an apparent attempt to codify the court’s interpretation of this rule as stated inPeople v. Rexford, 228 Mich App 371, 379; 579 NW2d 111 (1998) (holding that the failure to test a breath alcohol machine for 13 days, in violation of a regulation requiring testing once a week, did not require suppression of defendant’s breath test results).

The rules also now contain a definition of both “should” and “shall” (Admin. R. 235.2651(l) & 235.2651(m) respectively).  When the rules state that something shall be done it is of course is mandatory, but where the rules indicate “should” then “reasonable deviation” is allowed.  This change was probably based on the court’s ruling in People v Fosnaugh, 248 Mich App 444, 450; 639 NW2d 587 (2001) where these words were distinguished.  What is surprising however is that the two-sample requirement interpreted in Fosnaugh was not specifically relaxed to comport with the other changes.  See Admin. R. 325.2655(f).  Because of the court’s ruling in Fosnaugh Michigan is now effectively a one-test state, and again one is left to wonder why the drafters of these rules didn’t codify this aspect of the ruling as well.  It is also curious to note that the rules do not seem to ever use the word “should.”  It would appear then that this definition was added so that courts would have some guidance when interpreting the various training manuals.

Another issue that has been elaborated in the new rules is that addressing operator training and certification.  Admin. R. 325.2658 now specifically states that operator certification is “non-expiring.”  Thus, once a “class II” operator attends and completes a six-hour course with at least a 70% score, he or she is competent for life, and no further training is necessary or required to maintain this competency.  There is also a new chart in the rules that specifies exactly what functions each class of operator is allowed to perform.  For example, a “class II” operator may both administer breath tests as well as verify the device for accuracy.  Probably the most peculiar change is that there will now be as many as five separate training manuals, one for each operator class.  It will be interesting to find if all five manuals will be readily available from the Lansing State Police.

The thing that is somewhat unsettling about these rule changes is what they implicitly represent, which is a blurring of the separation of powers.  To understand why consider that on the one hand we have a Supreme Court who, in the case of People v. Anstey, 476 Mich 436, 719 NW2d 579 (2006), advocates a strict constructionist approach to statutory interpretation.  On the other hand we have a variety of “loose interpretation” appeals court decisions, all decided prior to Anstey, that have significantly relaxed the requirements imposed on the police for insuring the reliability of the breath test.  The State Police of have now adopted these loose interpretations and incorporated them into the new administrative rules.  So, the result is that when a new strict constructionist court “interprets” these rules they must do so in a way that is consistent with the previously relaxed construction.  An example from the rules demonstrates how this is significant.  Consider the phrase “once per calendar week.”  It seems highly unlikely that the strict interpretation we might expect from the court that wrote Anstey would result in a decision that this phrase actually means that the machine be tested for accuracy only once every 13 days, or roughly only twice per month.  Yet, this is exactly what a strict interpretation of the rule will now require.

Thus, rather than a true check and balance by the judiciary on the executive branch, we instead have the two branches of government walking in lock-step together.  Because the administrative rules are ostensibly intended to insure the reliability of the breath test, the result of the new rules is simply less protection to the accused against the possibility of wrongful conviction.

Lawyer’s Weekly – People v. Anstey

Patrick T. Barone, Esq.

Mr. Barone was interviewed by Lawyer’s Weekly regarding a particularly bothersome new Michigan Supreme Court case issued at the end of the summer term, July 2006. This case is summarized below. Following the summary are the questions asked of Mr. Barone by the Lawyer’s Weekly reporter, along with Mr. Barone’s answers to these questions.

Summary of the case:

In People v. Anstey 476 Mich. 436, 719 N.W.2d 579, (Mich., July 31, 2006), the motorist agreed to take the breath test offered by the police. He then asked the arresting officer to take him across state lines to obtain an independent blood test, and the officer refused to do so. The motorist then asked to be taken to a hospital that was about 15 – 20 minutes away, and again the officer refused. The officer did offer to take the motorist to a different hospital routinely used by the police for chemical tests. The motorist refused this offer because he did not believe this test would be truly independent. Consequently, the motorist did not receive an independent test. The trial court judge found that suppression was the appropriate remedy for this denial. The suppression order was appealed and the appeals court found that the appropriate remedy was dismissal.

The Michigan Supreme Court granted the prosecutor’s application for leave to appeal. The Supreme Court reviewed the subject statute and found that because the Legislature failed to include the appropriate remedy in the statute it would not be appropriate for the Court to fashion one where none existed. However, the court did believe that doing nothing would permit the police to ignore “a defendant’s mandatory statutory right to a reasonable opportunity for an independent test.” Nevertheless, the Court wanted to be sure that in doing something, they did not legislate from the bench. The conclusion of the Court was that if the defense could prove, after an evidentiary hearing that the implied consent law was violated then the jury, not the court, should fashion the appropriate remedy. It was thus the role of the trial judge to instruct the jury that the defendant’s implied consent rights were violated. Then it would be up to the jury to determine what significance to attach to this fact in deciding the case. It was suggested that the jury might consider the denial of the defendant’s right to a reasonable opportunity for an independent chemical test in deciding whether, in light of the non-chemical test evidence, such an independent chemical test might have produced results different from the police-administered chemical test. The Court indicated that the authority to give such an instruction “derives from the inherent powers of the judiciary.” According to the opinion an appropriate jury instruction will “communicate an accurate account of what transpired and allow the jurors to apply the law to the facts as they decide.”

The Michigan Supreme Court granted the prosecutor’s application for leave to appeal. The Supreme Court reviewed the subject statute and found that because the Legislature failed to include the appropriate remedy in the statute it would not be appropriate for the Court to fashion one where none existed. However, the court did believe that doing nothing would permit the police to ignore “a defendant’s mandatory statutory right to a reasonable opportunity for an independent test.” Nevertheless, the Court wanted to be sure that in doing something, they did not legislate from the bench. The conclusion of the Court was that if the defense could prove, after an evidentiary hearing that the implied consent law was violated then the jury, not the court, should fashion the appropriate remedy. It was thus the role of the trial judge to instruct the jury that the defendant’s implied consent rights were violated. Then it would be up to the jury to determine what significance to attach to this fact in deciding the case. It was suggested that the jury might consider the denial of the defendant’s right to a reasonable opportunity for an independent chemical test in deciding whether, in light of the non-chemical test evidence, such an independent chemical test might have produced results different from the police-administered chemical test. The Court indicated that the authority to give such an instruction “derives from the inherent powers of the judiciary.” According to the opinion an appropriate jury instruction will “communicate an accurate account of what transpired and allow the jurors to apply the law to the facts as they decide.”

The defendant also argued that his due process right to obtain potentially exculpatory evidence was violated under Arizona v. Youngblood, 488 US 51; 109 S Ct 333: 102 L Ed. 281 (1988). However, the Court found that Youngblood only applied to a failure to disclose existing evidence and since an independent test had yet to be developed, Youngblood did not apply. Further, that there were no cases holding that a failure of the government to turn over evidence that has yet to be developed was a due process violation. Consequently, the due process clause did not apply.

1. What is the significance of this decision?

The greatest significance of this opinion is that it further reduces the ability of a drinking driver to fashion a meaningful defense. In this way the opinion further increases the likelihood that all drunk driving arrests will result in conviction, regardless of the merits of the case. In his dissent, Justice Cavanagh states that the Majority’s opinion was their “most recent stride in eroding the statutory and constitutional rights of criminal defendants.” I was thinking exactly the same thing as I was reading the opinion.

A particularly troubling result of this opinion is that the collection of the chemical evidence in a drunk driving case, which is by its nature evanescent, is now rather completely in the hands of the government. It is exceptionally unlikely that the police will be deterred from engaging in unlawful behavior simply because the accused may or may not obtain a jury instruction the empowers the jury to only “consider” the “significance” of the rights violation when viewed against the balance of the evidence collected by the offending police agency.

2. What effect will this decision have on juries?

In some ways the decision has the potential to lead to an actual broadening of the role of the jury in a criminal case because the jury is now called upon to decide the actual significance of police misconduct. This potential is not fully realized however because the jury instruction does not allow the jury to impose an actual remedy for the abuse. In fact, the jury instruction suggested by the Majority falls short because it does not actually empower the jury to take any meaningful action. A drunk driving defendant would actually be better served by allowing the jury and not the court to make the initial determination of if a violation occurred, and then be informed that as a result of such violation they must either acquit the defendant on this basis alone or alternatively must disregard the chemical evidence entirely in reaching their verdict. Simply telling the jury only that they may decide the “significance” to be placed on this fact without advising them of the remedy to be imposed is akin to instructing a jury that they may decide the significance of an improper stop or improper search and seizure, but telling them that they must do so in the broader light of all of the evidence collected. This approach does nothing to protect the rights of the accused, or even to uphold the Constitution.

The jury instruction is problematic also because it further blends the distinction between legal issues and fact issues. Because of this the proposed jury instruction is likely to only confuse juries who will hear this instruction as it is read among more than two dozen others, all over a 30 – 45 minute time period.

It would seem that if the Court is going to ostensibly pass their power, authority and responsibility on to the jury, then they ought at least do so in a way that empowers the jury to exercise authority previously reserved for the Court, that is, to actually impose a remedy. Otherwise, the rights previously reserved to the people are effectively lost.

3. Given the issues raised in Justice Cavanagh’s dissenting opinion, what are your thoughts about the adequacy of this decision leveling the playing field between the prosecution and defense, and/or should the Legislature craft a remedy for a violation of the statute in question – MCL 257.625(a)(d)?

Let’s be clear about this. In the arena of “criminal law” the playbook is our Constitution and this playbook requires that the “playing field” not be level. This is why we have a presumption of innocence and a burden of proof. A level playing field is actually contrary to our Constitution.

Also, while I think the conclusions of the Court are wrong based on the doctrines of reenactment and legislative acquiescence I believe that if the Court was truly sensitive to the balance of power issue then it should have encouraged the Legislature to craft a remedy and should also have offered the proposed jury instruction as a temporary stop gap until this occurred. On the other hand, the Court could also have changed nothing but made it clear that their ruling was only valid until such time as the Legislature made their intentions known through their next re-write of Michigan’s drunk driving laws.

4. What impact does this decision have on the doctrines of reenactment and legislative acquiescence?

It would seem that this opinion weakens these doctrines. The opinion also suggests that the various branches of government are not communicating with one another, and that it’s not proper for the Courts to assume otherwise.

5. Any other comments?

It seems evident that the opinion sends a message of strict construction to the Legislature and to the lower courts. In such a strict construction scheme juries are viewed as the final check and balance on the use of governmental authority, most notably in this context a check on the improper use of the executive power. The ultimate ability of the jury to perform this function is sometimes called “jury nullification” though it’s not clear that Michigan’s current and very conservative Supreme Court majority is in favor of allowing the defense to argue for nullification. One may guess that they are not since the jury instruction they’ve proposed does not prescribe a remedy. This is the essential problem with the opinion; it seems to empower juries but does not effectively give them an additional power.