Author: Patrick Barone
Source: www.mi-dui-central.com

On January 1, 2006 a new court rule will go into effect that will require the majority of Michigan drunk driving cases to be resolved by trial or plea of guilty within 91 days. This is a significant change in the law because it formalizes and shortens time limits that already exist, and does so squarely at the expense of the rights of the drunk driving accused. One may argue that as a consequence of passing this new rule the Supreme Court has inadvertently compromised the very Constitution they are meant to uphold. This is because the effect of the rule will be to deny the drunk driving accused the fundamental due process right to be fully informed of the charges they face as well as the equally critical right to a fair trial.

The reason this new time limit creates this Constitutional quandary is that it places an unrealistic, expensive and in some circumstances insurmountable burden on everyone involved. Any person who is accused of a crime has a fundamental due process right to know the basis for the charge, in other words, to know the facts upon which the prosecutor claims the law has been broken. In the context of drunk driving, the necessary information includes, at a minimum, the narrative reports prepared by the police who arrested the alleged drunk driver, any videotapes that may exist, and all the information required to show that the equipment used to test the motorist's breath or blood was working properly. Obtaining this information takes time, in many cases several weeks, and sometimes even months.

Devising a system that will assure that the accused will obtain this information quickly enough to satisfy the Constitution and the court rule will require that police departments and prosecuting attorney offices hire more staff to process and disseminate the required information. Realistically, the costs involved in such an endeavor means that necessary staff additions are unlikely. Technology might solve the problem as well, but this represents an even bigger financial investment. In response to these problems the district judges are likely to simply set cases for trial long before these facts are known to the drunk driving accused, and in so doing place the burden of compliance back on the accused. In other words, the burden will be placed exactly where the Constitution dictates that it does not belong.

Nevertheless, it is only after all of this necessary information is obtained, reviewed and analyzed that a defense attorney and his or her client can determine if any of the motorist's rights have been violated by the police, or if the breath or blood test is unreliable or inaccurate. There are many reasons why problems with chemical testing may occur, but without adequate research time it is not possible to know if the results can or should support a conviction. Then, if problems that compromise the integrity of the breath or blood test are uncovered, these problems must be brought to the attention of the court. This process is called "motion practice", and requires that written arguments be presented to the judge and prosecutor and sometimes that testimony be taken from witnesses in court. This requires additional time, usually several more weeks or months. Once this process is complete, then and only then is it proper to set a case for trial. If the case is immediately set for trial there will be no time to for the defense to complete the necessary pretrial investigation.

Adding to the problem is the fact that most district courts only hold criminal trials during certain days or weeks of each month. This is because people accused of drunk driving have a right to have their cases heard by juries, and jurors are not always available to the court. If the next "jury term" is before the 91 days, this will inevitably result in even greater time constraints being imposed on the accused.

Another Constitutional problem is that the new rule appears to violate the separation of powers. The Michigan Legislature has already included certain time limits for drunk driving cases. These time limits were first included in the 1999 changes to Michigan's drunk driving statutes, and slightly changed again in 2003 when the Michigan Legislature redrafted the State's drunk driving laws to comport with the national .08 legal limit. Time limits of this sort are more properly the province of the legislature, and by passing this new court rule, the Michigan Supreme Court has essentially done an end-run around this existing legislation.

This new court rule also takes authority away from the district judges. Whereas previously the judges had much more discretion to allow cases to take far more time if he or she believed that the additional time was necessary to ensure justice for the accused, now the rules require that the judges comply with the rule whether or not the particular circumstances of the case warrant such a short time period.

What is of greatest concern to us is that this new rule also provides that if the judges are not able to timely dispose of their "judicial work" (meaning within 91 days for most drunk driving cases) then the chief judge must report "these facts to the state court administrator who will, under the Supreme Court's direction, initiate whatever corrective action is necessary". This provision gives the judges significant incentive to follow this new time limit. You should understand however that a failure to follow the rule WILL NOT result in the dismissal of your case.

In other words, the Supreme Court will now be babysitting the district court. In fact, if the Supreme Court determines that a particular judge has too many old cases on his or her docket, they may actually pressure the judges by sending a clerk to sit in the judge's court to observe how the court is conducted. These written monthly reports also create a public record, meaning they will provide fodder for the opponent in the district court judge's next election.

Clearly the district court judges are being constrained to follow the new rule, and while this may all seem completely reasonable to people who have not participated in the justice system, the new rules are extremely unpopular with the district court judges, and even more unpopular with those who, like myself, aggressively and successfully defend the drunk driving accused.