The Myth of the DUI Defense:

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1 Volume 13, Issue 1 December 2012 The Myth of the DUI Defense:GERD By: Brandon Hughes* Prosecute enough DUI cases and the excuses you will hear for the defendant s behavior will be both numerous and imaginative; you have to be prepared for anything. A DUI defense is typically more akin to a unicorn than a thoroughbred. You see, like myths, DUI defenses usually have some basis in truth; however, it is the perversion of this truth where the DUI defense most often lies. As such, it is important for the prosecutor to understand the underlying truth of the defense in order to be able to point out the fallacy of the defense and make sure the finder of fact renders a verdict based not on fanciful conjecture, but on the evidence. One such defense is the GERD (Gastro- Esophageal Reflux Disorder) defense and if you have not seen it yet, odds are you will. The basis in truth for this defense is that GERD is real medical condition; the perversion of this truth is that persons with GERD produce artificially high Breath Alcohol Concentrations (BrAC) and, as a result, are not guilty of Driving Under the Influence of Alcohol. The basis in truth for this defense is that GERD is real medical condition; the perversion of this truth is that persons with GERD produce artificially high Breath Alcohol Concentrations (BrAC) Understanding what GERD is and, more importantly, what it is not is the first step in overcoming this defense. The Truth Put simply, GERD is a more severe form of acid reflux, which is the backward flow of the stomach s contents into the esophagus. It is important to understand that GERD is more than just occasionally experiencing heartburn. A person who truly suffers from GERD will most likely have been diagnosed as such by a physician and takes medication perhaps even daily to deal with the problem. In fact, it is not unusual for a GERD sufferer to require surgery to address the problem. It is estimated that approximately 7-10% of the population in the United States suffers from GERD to some extent. 1 Drinking alcohol, smoking and eating spicy foods have been known to exacerbate the symptoms of GERD. The Defense First and foremost, the GERD defense is nothing more than a mouth-alcohol defense. The defendant will claim that since he or she suffers from GERD then the BrAC as measured by the Draeger was inflated and therefore not an accurate representation of their actual BrAC. They will claim that the BrAC was inflated because the GERD caused alcohol from the stomach to flow up the esophagus and into the mouth creating mouth-alcohol and therefore causing a flawed result. (Continued on page 4) Inside this Issue New MADD Director...2 Visual Trial School Comes to Michigan...3 The Myth of the DUI Defense: GERD (cont)...5 Visual Trial School Comes to Michigan (cont)...6 For Your Information Jones, AW (January 2007). Gastric Reflux, Regurgitation, and Potential Impact of Mouth-Alcohol on Results of Breath Alcohol Testing, DWI Journal: Law & Science, Vol. 22, No. 1

2 Page 2 The Green Light News New MADD director looking to make a difference in the fight against drunk driving By Lynn Sutfin* Sherry McGee admits that she wasn t tuned-in to Mothers Against Drunk Driving (MADD) when she first learned of a leadership position with the organization s Michigan office. I thought, Mothers Against Drunk Driving, they re still out there? McGee said. I did some research and read an article titled, Wouldn t It Be Nice if MADD Went Out of Business. I thought it was going to be a negative article. But what I found was that the author was writing about how it would be a good thing if there wasn t a need for MADD because people had stopped driving drunk. What she has learned since becoming the state executive director in March is that there is a lot of work to be done before MADD can hang a Closed for Business sign on the door. One in three of us is likely to be impacted by drunk driving, McGee said. And then for every one person killed or injured by a drunk driver you multiply by four because that s at least how many people are impacted by that one incident. Started more than 30 years ago by a mother grieving and angry over the senseless death of her 13-yearold daughter at the hands of a drunk driver, MADD has evolved into one of the most widely supported non-profit organizations in the nation. For McGee, who was looking to make a career out of making a difference, it was the perfect fit. She brings a wealth of experience from her career in the nonprofit and for-profit sectors. Prior to joining MADD, McGee was the project director for City Connect Detroit, where she provided leadership in building and strengthening public McGee wants people to realize MADD isn t just about telling people what they shouldn t do, but is also helping people understand what they can do. health collaborations, developed and directed major programs, managed volunteer engagement activities, and performed fundraising. Prior to City Connect Detroit, she served as a director of the Detroit Area Agency on Aging. In the for-profit sector she worked a consultant with the Booker T. Washington Business Association helping small businesses develop an infrastructure and secure financing for growth. She also served as the national marketing manager for The Bartech Group, one of the nation s leading technical staffing services firms. She holds a master s in business administration in marketing and a doctorate in psychology with a health specialization. Since March, McGee has been working to get her arms around the drunk driving issue and what MADD is doing to eliminate it. This includes legislation and advocacy, supporting victims, and underage drinking prevention programs. McGee wants people to realize MADD isn t just about telling people what they shouldn t do, but is also helping people understand what they can do. The organization advocates mocktail parties instead of serving alcohol at events and has developed a research-based program for parents of teens. The Power of Parents, It s Your Influence TM program includes a Web site, parent handbook, and workshops to help educate parents about how to talk to their teens about the dangers of drinking. We are staunch supporters of the minimum drinking age, McGee said. The brain is still developing up until then and alcohol can really affect that development. Another public policy issue MADD supports is.08 legislation. Passed in 2003, the law made it illegal to operate a motor vehicle at or above a.08 blood alcohol concentration. The legislation included a 10-year sunset clause, set to expire on October 1, returning the legal limit.10 BAC. We don t think it should expire and if the Legislature doesn t address the issue this year MADD is prepared to launch a major community awareness campaign to keep.08, McGee said. She urges anyone interested in volunteering with MADD to visit and select Michigan. McGee said there are long-term and short-term volunteer opportunities. People should know this is still an issue and they need to get involved, she said. McGee welcomes questions and can be reached at sherry.mcgee@madd.org or (248) , ext Editor s Note: Lynn Sutfin is the Public Information Coordinator for the Michigan Office of Highway Safety Planning

3 Visual Trial School Comes to Michigan by Patrick Muscat* I hear and I forget. I see and I remember. I do and I understand - -Confucius. This ancient quotation by the famous teacher, magistrate, and philosopher Confucius accurately summarizes how our modern day juries process and retain information. The goal of any attorney in trial is to organize and present their evidence in a persuasive manner, utilizing a delivery method that increases the target audience s ability to retain the information. A trial attorney armed with litigation technology skills combined with ageold trial advocacy techniques can ethically present their case to a jury in such a manner where the jury sees and remembers. A trial attorney can maximize the use of vantage points with non-linear litigation technology thus allowing the jury to visualize the witness s experiences while that testimony is being presented. This interactive process with the jury, in essence, makes them participants and is akin to the jury doing and understanding. PowerPoint presentation as well learn how to effectively redact common digital evidence (video and audio) for use in court. In law school students learn how to use various visual tools for trial, but that is merely the beginning. The Visual Trial School is a cutting edge training that will assist prosecutors in successfully presenting complicated fact scenarios and evidence to the judge and jury. Today the use of technology is an essential skill that should be mastered; it could be the difference between justice being done or not being done.- Wayne County Prosecutor and P.A.A.M. President-Elect Kym L.Worthy. For years, the National Advocacy Center (NAC) in Columbia, SC offered its cutting-edge Courtroom Technology 1 course to prosecutors nationwide. The faculty members for the P.A.A.M. Visual Trial School are all veteran faculty members of the NAC and bring aspects of the fiveday Courtroom Tech course to the P.A.A.M. Visual Trial School. Faculty members for the Visual Trial School will also include the excellent trainers from the New York Prosecutors Training Institute (NYPTI). A trial attorney can maximize the use of vantage points with nonlinear litigation technology thus allowing the jury to visualize the witness s experiences while that testimony is being presented Jurors spend their evenings constantly barraged by second sound bites of information, entertainment, and news. Children today grow up being educated by PowerPoint or with other advanced programs that are used with computers and/or tablets. School districts now pass out ipads to kindergarteners. 2 (Continued on page 6) On December 6th, and December 7th, the Prosecuting Attorneys Association of Michigan will host the state s first ever P.A.A.M. Visual Trial School in Ann Arbor, MI. More than 50 prosecutors and assistant prosecutors from offices all over the state will be in attendance. The Visual Trial School is a two-day course broken up into one full day of lectures followed by a full day of interactive training. The lectures will focus on the latest tools, software, and products along with techniques and strategies for using litigation technology effectively, ethically, and persuasively in court. The second day will feature a handson lab where faculty members will guide the attendees through the basic skills needed to create a persuasive P.A.A.M. Visual Trial School faculty members Patrick Muscat, Don McIntyre, and Todd Smith standing on the steps of the NAC with Jim Dedman (and other CT faculty) during the Courtroom Technology course in Columbia, SC circa Don is in the front row second from left; Todd, Jim, and Pat are in the back row, from left to right. 1 Created by Jim Dedman (retired) of the National District Attorneys Association of America. 2 The Green Light News Page 3

4 Page 4 The Green Light News The Myth of DUI Defense: GERD (continued from page 1) According to Developing a GERD Defense 2, the fact pattern that supports a scientifically valid GERD defense includes: physician diagnosed GERD, impairment that is not consistent with the defendant s BrAC and a strong possibility of alcohol present in the stomach at the time of the breath test. (Emphasis added). As you can see, there is more to it from a defense perspective than just throwing out the term GERD. The Gerd Effect Does GERD really have a significant impact on the BrAC? Perhaps the most notable study on this issue was conducted at the University Hospital in Linköping, Sweden in The participants in the study were 10 individuals (five men and five women) who had been diagnosed as chronic sufferers of GERD and who were in line for antireflux surgery. The subjects were dosed with either beer, white wine or vodka mixed with orange juice after a 10 hour overnight fast. At specified intervals, blood was drawn from each subject and the subject gave a corresponding breath test immediately after the blood sample was taken. Some of the subjects were even subjected to having a GERD episode induced prior to giving a breath sample and in every case they were able to blow an adequate volume and for an adequate amount of time. The conclusion reached in the study was that the risk of alcohol erupting from the stomach and into the mouth owing to gastric reflux and falsely increasing the result of an evidential breath-alcohol test is highly improbable. The study further concluded that the risk of a person experiencing gastric reflux during the time he or she participates in a breathalcohol test procedure is very low. Even if reflux does occur, our study shows that it is not very likely that an abnormally high BrAC reading will be obtained. In arriving at these conclusions, the authors of the study reiterated the importance of the pre-test deprivation period as well as taking duplicate breath samples as safeguards against a GERD defense. Both of which are just two of the four safeguards used in Alabama to ensure that no false positives occur due to mouth-alcohol. As the previous study proved, an active GERD episode may cause the presence of mouth alcohol, but simply saying it doesn t make it so. Handling the Defense When trying a case where a GERD defense has been asserted, it is important not let the case become solely about whether or not the defendant was suffering from GERD at the time of the breath test. Also, just because the defendant may suffer from GERD even if he or she has been diagnosed as such by a doctor the defense must show that the defendant was suffering from a GERD episode at the time of the breath test. This is a tough standard. Hold them to this. Keep the jury focused on the driving behavior, the observations by the officer and the defendant s performance on the Standardized Field Sobriety Tests. As I wrote in a previous article, the arrest decision is made based on evidence observed prior to the evidentiary breath test. The breath result is simply the sprinkles on the cake so don t let the issue get clouded by arguing over a suppositious defense. Make sure the jury understands that the reason for the defendant s behavior that night was impairment by alcohol and not a severe form of indigestion. In per se DUI cases where attacking the GERD defense head-on may be best strategy, prosecutors in Alabama can take heart in knowing the breath-testing program in this state makes attacking a GERD claim fairly straightforward. There are four safeguards built into the program to essentially eliminate the threat of mouth-alcohol affecting the BrAC result. The first safeguard is the 20-minute deprivation period prior to testing. When a person drinks an alcoholic beverage, residual alcohol remains inside the mouth for several minutes after the drink is taken and if a breath sample is given within a few minutes of that drink, the breath-testing instrument could measure the mouth-alcohol and could render an inflated BrAC. There have been numerous studies done to determine how long residual mouthalcohol remains and it is widely accepted that all mouth-alcohol is eliminated within 12 to 15 minutes after alcohol has been introduced. Alabama s 20-minute deprivation period exceeds that 12 to 15 minute window creating an even Keep the jury focused on the driving behavior, the observations by the officer and the defendant s performance on the Standardized Field Sobriety Tests. greater assurance for the defendant. It is important to note that this 20-minute period in Alabama is a deprivation period and not an observation period. This is a critical distinction because defense attorneys will argue that since the officer did not maintain a 20-minute eyes-on watch of the defendant then the 20-minute deprivation requirement was not met. This is not true. All that is required is that the officer deprives the defendant from introducing anything into his or her mouth for at least 20 minutes 2 McShane, Justin J., et al. Developing a GERD Defense. Understanding DUI Scientific Evidence, 2011 ed. West, Aspatore Books, Print. 3 Kechagias S, Jönsson K-Å, Franzén T, Andersson L, Jones AW. Reliability of Breath-Alcohol Analysis in Individuals with Gastroesophageal Reflux Disease, J Forensic Sci 1999; 44(4):

5 prior to the defendant providing a breath sample and this time can include the ride from the scene of the traffic stop to the jail. Of course, the defense attorney in a GERD case would likely argue that the officer couldn t know if the defendant silently burped, hiccupped or regurgitated causing the introduction of alcohol into the mouth. The next three safeguards in place can put that particular claim to rest and further debunk the GERD claim. The next safeguard is Slope Monitoring. For the purposes of this article, know that Slope Monitoring is the measurement of the breath alcohol curve as the defendant is providing a breath sample. The Draeger monitors the entire breath Armed with a little bit of knowledge and utilizing the safeguards in Alabama s breath testing program you can successfully prosecute any DUI case in the face of a GERD claim. sample; therefore, a proper breath curve will start with a low BrAC at the beginning of the blow and continue to rise until the alveolar (deep lung) air is obtained. As a result, the Draeger is designed to examine this breath alcohol curve during the blow and if the BrAC concentration declines at any point during the breath sample, the instrument indicates mouthalcohol and will not render a result. The instrument will then lock down for 20 minutes to allow for the dissipation of the mouth-alcohol. In short, the Draeger is designed to detect mouth-alcohol, and when it does so, it will not render a result. The third of the four safeguards against the Draeger rendering a BrAC result based on mouth-alcohol is that the Draeger requires two breath samples and both samples must agree within g/210l. For example, if a subject s first breath result is a and the second sample is measured at 0.127, the Draeger will report the result. If, however, the first breath sample is measured at and the second sample measures at 0.142, the Draeger will indicate Test Outside +/- Tolerance and will not report a result. The instrument will then finish the test and automatically start a new test requiring two more breath samples. This new test does not require the operator to do anything other than instruct the subject to blow when the instrument indicates it is time for a sample. The fourth and perhaps the most compelling safeguard is that all of the data generated when a breath sample is given is recorded, stored and can be generated for court review. This includes the breath alcohol curves. When you have a case where GERD or mouth-alcohol is an issue, send a written request to the Implied Consent Laboratory of the Department of Forensic Sciences and request a Data Pack for the breath test in question. This takes some time to assemble, so give DFS as much lead time as possible to put it together. You will need to bring someone in from Implied Consent to testify and present the breath alcohol curve to the jury. This will be the definitive proof you need to overcome the GERD claim. The Role of Law Enforcement Yes, even law enforcement can play a role in quashing a GERD claim. First, during the DUI investigation, note when the defendant had his or her last drink. This is important because a prerequisite for such interferences is, of course, that there is a relatively high concentration of alcohol remaining in the stomach at the time of the test. Without any alcohol erupting from the stomach into the mouth and throat prior to a breath-test, the GERD defense is bogus. Accordingly, an important element for a valid GERD defense is a relatively short time after end of drinking until making the breathtest. 4 (All emphasis added) For GERD to even have an opportunity to play a role, alcohol must be present in the stomach. If the stomach is devoid of alcohol, there can be nothing to regurgitate to even remotely impact the BrAC. The stomach could be empty of alcohol as recent as 30 minutes after the defendant s last drink so knowing how much time has elapsed between last drink and breath sample could be key in disproving the GERD claim. Secondly, observe and note the defendant s behavior. Specifically, was he or she belching, hiccupping or coughing all signs of an active GERD episode? Third, just ask the defendant if they suffer from GERD. As noted earlier, if they are a GERD sufferer, they likely know it and have been diagnosed as such. Additionally, a denial on the night of the offense makes an 11th hour GERD defense easier to deal with. Conclusion When dealing with GERD or any defense in a DUI case determine what the nugget of truth is at the heart of the defense s claims then determine how that truth is being exploited to accomplish their goal of a not guilty verdict. Remember: 1. GERD is simply a mouthalcohol defense; 2. The defendant must prove that he or she was having an active GERD episode at the time of the breath test; 3. Use facts and data to disprove the claim; 4. Don t lose sight of all the other evidence of the defendant s impairment at the time of the offense. Armed with a little bit of knowledge and utilizing the safeguards in Alabama s breath testing program you can successfully prosecute any DUI case in the face of a GERD claim. Editor s Note: Brandon Hughes is the Traffic Safety Resource Prosecutor for the State of Alabama. 4 Jones, AW (September 2005). Reflections on the GERD Defense, DWI Journal: Law & Science, Vol. 20, No. 9. The Green Light News Page 5

6 Page 6 The Green Light News Visual Trial School Comes To Michigan (continued from page 3) In his book, Litigation Technology- Becoming a High-Tech Trial Lawyer, Mike Rogers discusses vantage points and how television has shaped how we receive information: Now consider how the majority of Americans receive their information, news, and entertainment:from televisions and computers. Both present information on a screen. Each medium, through a remote control or a mouse click, lets the viewer jump to other information. Think about television: It offers sound, images, and differing vantage points every few moments. Television is the perfect selling tool. Consider how television as a presentation medium has evolved. If you grew up watching the I Love Lucy show, you w e r e exposed to three-camera filming. Three movie cameras were positioned around the stage and captured the action from three different vantage points. One camera zoomed in on headshots. Another camera shot the entire stage, and the third camera focused on a particular actor or specific part of the set. During the editing process, the director decided which of the three different camera shots to splice together. That splicing process controlled the vantage point of the television audience. The director, then, controlled the television s point of view. In the I Love Lucy show, the image on the screen stayed on the screen for approximately 15 seconds, when the next bit of spliced film appeared. Viewers nowadays take the shift in focus for granted, but for the television audience in the 1950 s, that extent of vantage point manipulation was completely new. Before I Love Lucy, the television camera functioned as nothing more than a member of the audience. Three- camera filming revolutionized its role. Now it became a tool of-and affected by-the whims of the presenter. The audience could now be forced to view the story from whichever vantage point the director chose. 3 A trial attorney is much like the director from the I Love Lucy show. During direct examination, the trial attorney can use a combination of advocacy and modern non-linear litigation software to direct the jury to the intended message, whether it is the testimony, the elements, the physical exhibits, and/or any links between all of the above. Visual trial courses are being taught all over the country. Faculty member Todd Smith of Lubbock, TX runs Texas biennial Courtroom Technology Course. The State Bar of Michigan is now sponsoring a Litigation Section Technology Conference. Law schools nationwide now offer Litigation Technology courses to their future lawyers. Full credit goes to P.A.A.M. and Kenneth Stecker for making this cutting edge legal training available to Michigan s prosecutors. Simply put, juries now demand more from advocates. Trial attorneys must adjust and take advantage of all tools available to them. Litigation technology works. It doesn t replace old-fashioned advocacy, but it certainly enhances it. The best example of this can be found in feedback from a juror who sat on a case where litigation technology was used extensively. 4 To borrow once again from Confucius, this juror saw and remembered and did and understood because of the effective use of litigation technology combined with traditional trial skills. The P.A.A.M. Visual Trial School will be offered again June 6th and 7th, 2013, location T.B.D. For further information about litigation technology and/or visual trials, please go to APA Patrick Muscat Wayne County Prosecutor s Office Conviction Integrity Unit-Director 1441 St. Antoine Suite 1119 Detroit, MI desk mobile pmuscat@co.wayne.mi.us Editor s Note: Patrick Muscat is an Assistant Prosecuting Attorney for the Wayne County Prosecuting Attorney s Office. 3 Mike Rogers Litigation Technology-Becoming a High-Tech Trial Lawyer reprinted with permission of author. 4 PowerPoint and non-linear litigation software, Sanction used during Opening, Direct, Cross, and Closing. Adobe, Audacity, and, Irfanview were used during pre-trial preparation.

7 For Your Information Traffic Safety Facts In 2010, all 50 States, the District of Columbia, and Puerto Rico had by law created a threshold making it illegal per se to drive with a BAC of.08 or higher. Of the 10,228 people who died in alcohol-impaired-driving crashes in 2010, 6,627 (65%) were drivers with a BAC of.08 or higher. The remaining fatalities consisted of 2,872 (28%) motor vehicle occupants and 729 (7%) nonoccupants. In fatal crashes in 2010 the highest percentage of drivers with a BAC level of.08 or higher was for drivers ages 21 to 24 (34%), followed by ages 25 to 34 (30%) and 35 to 44 (25%). For more Information on traffic fatalities is available from the National Center for Statistics and Analysis (NCSA), NVS- 424, 1200 New Jersey Avenue SE., Washington, DC NCSA can be contacted at or via the following address: ncsaweb@ dot.gov. General information on highway traffic safety can be accessed by Internet users at To report a safety-related problem or to inquire about motor vehicle safety information, contact the Vehicle Safety Hotline at Other fact sheets available from the National Center for Statistics and Analysis are Bicyclists and Other Cyclists, Children, Large Trucks, Motorcycles, Occupant Protection, Older Population, Overview, Passenger Vehicles, Pedestrians, Race and Ethnicity, Rural/Urban Comparisons, School Transportation- Related Crashes, Speeding, State Alcohol Estimates, State Traffic Data, and Young Drivers. Detailed data on motor vehicle traffic crashes are published annually in Traffic Safety Facts: A Compilation of Motor Vehicle Crash Data from the Fatality Analysis Reporting System and the General Estimates System. The fact sheets and annual Traffic Safety Facts report can be accessed online at www-nrd.nhtsa.dot.gov/cats/index. aspx Prosecuting Attorneys Association of Michigan 116 West Ottawa Suite 200 Lansing, Michigan Phone: (517) Fax: (517) steckerk@michigan.gov We re on the Web! This material was developed through a project funded by the Michigan Office of Highway Safety Planning and the U.S. Department of Transportation. The Green Light News Page 7

8 PROSECUTING ATTORNEYS ASSOCIATION OF MICHIGAN Volume 11, Issue 1 December 2012 Clicking on case names (highlighted in blue text) will take you directly to the PDF version of the opinions online. Unpublished Cases (An unpublished opinion is not binding as precedent but may have persuasive value in court.) The prosecution appealed by delayed leave granted from a circuit court order granting defendant s motion to quash and reducing a charge of operating a motor vehicle while intoxicated causing serious impairment of a body function (OWI-SI), MCL (5), to operating while intoxicated (OWI), MCL (1). The motion to quash was based on the trial court s conclusion that the term serious impairment of a body function as used in MCL (5) should be interpreted pursuant to MCL (7) of the No-Fault Act and that sufficient proofs were not offered at the preliminary hearing to meet the standard set forth in that Act. The facts are that defendant was charged with OWI-SI following an automobile crash in which a passenger in his vehicle was injured. The crash caused multiple fractures including a fracture to the passenger s leg that required surgery to properly reduce the fracture and to internally affix a metal plate to the bone. Evidence was admitted that the injured passenger suffered multiple injuries, including a leg fracture requiring surgery and fixation of a metal plate to the bone. The Court of Appeals held that there was evidence sufficient to establish probable cause to show that there was substantial impairment of a body function. The Court even held further that even if they were to impose the standards set out in the No-Fault Act for this threshold, there was probable cause established because the victim had a plate surgically implanted in her leg and that she was unable to make use of her leg and foot for several weeks. Therefore, because the meaning of the term serious impairment of a body function for purposes of OWI-SI is set forth in MCL c, not MCL (7), and because there were sufficient proofs to satisfy the probable cause standard, the Court reversed and remanded for reinstatement of the original felony charge of operating while intoxicated causing serious impairment of a body function. People v. Rodriguez, case no , decided October 25, The Genesee County Prosecuting Attorney appealed an order from the circuit court directing a verdict of acquittal. The circuit court granted defendant s motion for a directed verdict because the prosecution failed to prove that defendant, a medical-marijuana card holder, was in possession of more than Given the language of the statute, defendant was not entitled to immunity because the evidence clearly established that he possessed more than plants regardless of whether he also possessed more than 2.5 ounces of usable marijuana. 2.5 ounces of usable marijuana. The trial court found that the prosecution established that defendant was in possession of more than 12 plants. However, the court found that the language of the Michigan Medical Marihuana Act (MMMA) required the prosecution to show both. The Court noted that The plain language of 4 indicates that a qualifying patient who possesses a registry identification card is immune from prosecution provided the qualifying patient possesses not more than 2.5 ounces of usable marijuana and not more than 12 plants. See MCL (a). In other words, a qualifying patient is immune only if both limitations are satisfied. Given the language of the statute, defendant was not entitled to immunity because the evidence clearly established that he possessed more than plants, regardless of whether he also possessed more than 2.5 ounces of usable marijuana. The Court concluded that The trial court granted defendant s motion for a directed verdict based on an error of law The Yellow Light Legal Update is an addition to The Green Light News. With this insert, you can keep a notebook for just the traffic safety cases.

9 Page 2 that did not resolve any factual element of the crime charged. Therefore, its ruling did not constitute an acquittal for double-jeopardy purposes and retrial is not barred. Reversed and Remanded. People v. Chason-Pointer, case no , decided October 11, Defendant contended that he was not operating a motor vehicle when the police found him because his vehicle was in a position of safety. The Court concluded that that although defendant was not operating a motor vehicle at the time the police found him, there was sufficient circumstantial evidence for the arresting officer to have reasonable cause to believe that defendant had operated a motor vehicle while intoxicated before the police arrived. The Court noted circumstantial evidence indicated that defendant operated his vehicle while intoxicated before the police arrived. More specifically, although the police found defendant asleep in the driver s seat of his vehicle at a car wash, the Court noted the Prosecutor show the following circumstantial evidence that was sufficient to convict the defendant of Operating While Intoxicated (OWI): The vehicle s engine was running, the vehicle was in park, the headlights were on, and defendant s foot was on the brake pedal. While defendant did not say he had driven there, the vehicle was registered to him and he did not say that someone else had driven him there. Defendant smelled of alcohol and was staggering. He failed four field sobriety tests. Defendant stated that he had been drinking at a bar. Defendant then recanted, saying he had Therefore, the Court concluded that defendant was not in custody for the purposes of triggering the need to give Miranda warning. been drinking while at work and that he had left work at 5:00 p.m. The citizen who called the police stated that defendant had been there for some time. In conducting an inventory search, the police discovered several small bottles of vodka, but there did not appear to be enough alcohol missing from the bottles to believe defendant had become intoxicated while sitting in the vehicle at the car wash. It is important to note the 2 published cases that the Court relied upon to reach their decision on this issue. Those cases are People v. Solmonson, 261 Mich. App. 657 (2004) and People v. Stephen, 2626 Mich. App. 213 (2004). As to the second issue raised by the defendant, the defendant argued that the district court erred in denying his motion to suppress his statement to the Officer that he was on his way home and had left work at 5:00 o clock. More specifically, the defendant contended the statement is inadmissible because it was the product of custodial interrogation without benefit of Miranda warnings. The Court disagreed. The Court stated that the Officer s questioning of The Yellow Light Legal Update defendant was brief, defendant was not handcuffed, and he was not confined to the patrol car. Therefore, the Court concluded that defendant was not in custody for the purposes of triggering the need to give Miranda warning. Affirmed. People v. Haggarty, case no , decided September 27, Defendant appealed his jury trial conviction of driving while license suspended 2nd offense (DWLS). The defendant was also convicted of operating while intoxicated 3rd offense (OWI). A Michigan State Police Trooper testified that the Defendant s license was suspended at the time of arrest. A certified copy of defendant s driving record was admitted into evidence. It indicated that defendant s license was suspended on the day of his arrest. The Trooper however, did not testify and there is nothing in the record to indicate that Parker was notified that his license had been suspended. Moreover, the jury was not instructed that it had to find that Parker had notice of the suspension in order to convict him of DWLS 2nd. The defendant argued that the prosecution presented insufficient evidence at trial to convict him of DWLS 2nd. The Court of Appeals agreed. The Court noted that the elements of DWLS are as follows: (1) operation of a motor vehicle on a highway, public place or place generally accessible to

10 motor vehicles; (2) while the driver s license was suspended, revoked, or application has been denied (or the driver never applied for a license); and (3) the driver was provided notice of the suspension or revocation of his or her driving privileges by personal delivery or first-class mail, as established by statute. The Court further noted that at trial, the prosecution offered sufficient evidence to establish two of the three elements for DWLS. However, according to the Court, the record, however, fails to establish that the prosecution offered any proof either direct or circumstantial that Parker received notice of his suspended license. Because this is an essential element of the crime of DWLS, the defendant s conviction must be reversed. Additionally, even if the driving record or Jones testimony had established that defendant received notice, the trial court did not instruct the jury that notice had to be proved in order to convict the defendant of DWLS. The Court affirmed the defendant s OWI 3rd conviction, but reversed the defendant s conviction of DWLS 2nd. People v. Parker, case no , decided September 11, NEW LAW 2012 Public Act 306, effective October 1, 2012 (formerly Senate Bill 809) clarifies eligibility for sobriety court and modifies the open alcohol containers statute, MCL More specifically, the Act does the following: -Amends MCL to: A. Recognize more destinations to which a driver with a restricted license may travel (beyond work, school, and drug treatment), to include court hearings, drug testing, and court-ordered community service. B. Require a person with a restricted license to carry proof of destination and hours of employment, class, or other location and to produce it upon request of a peace officer. C. Prohibit a hearing officer from granting a restricted license until the offender has operated with an ignition interlock device for not less than 1 year and has satisfied other statutory and rule requirements. D. Provide that a certificate of completion from a DWI/sobriety court program shall be considered positive evidence of the offender s abstinence while a program participant. E. Require SOS to postpone consideration of a restricted license under 322 for a period of 3 months for each minor violation but shall deny issuance of a restricted license if the person commits a major violation as defined by administrative rule R A. -Amends MCL to correct a provision in interlock provisions that mistakenly refers to a start-up test failure when it should correctly refer to detecting the retest failure. - Amends MCL b to revise license sanctions for commercial driver license violations, some of which will run consecutively to other sanctions. Specific suspensions for 6-point violations while operating a commercial vehicle are stricken - Amends MCL to provide that a repeat drunk driving offender cannot get a revoked license restored unless at least 1 year and 45 days have elapsed. - Amends MCL a (open alcohol containers in a vehicle) to revise the ban on open alcoholic containers in a vehicle that does not have a trunk (or compartment separate from the passenger area): A. To provide that the container must be in a locked glove compartment, behind the last upright seat, or in an area not normally occupied by the operator or a passenger. B. To define passenger area as the area designed to seat the operator or passengers of a motor vehicle while it is in operation and any area that is readily accessible to the operator or a passenger while in his or her seating position. Consult Your Prosecutor Before Adopting Practices Suggested by Reports in this Article. The statutes and court decisions in this publication are reported to help you keep up with trends in the law. Discuss your practices that relate to these statutes and cases with your commanding officers, police legal advisors, and the prosecuting attorney before changing your practices in reliance on a reported court decision or legislative change. This material was developed through a project funded by the Michigan Office of Highway Safety Planning and the U.S. Department of Transportation. The Yellow Light Legal Update Page 3