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CASE LAW. Bullcoming v New Mexico, No. 09-10876 (United States Supreme Court, June 23, 2011).

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slide2

Bullcoming v New Mexico, No. 09-10876 (United States Supreme Court, June 23, 2011)

  • “If an out-of-court statement is testimonial, it may not be used against a defendant at trial unless the witness who made the statement is unavailable and the defendant has had a prior opportunity to confront the witness.”
slide3

People v Nunley, No. 302181 (Mich. App., October 13, 2011)

  • “The Secretary of State’s certificate of mailing at issue in this case is a testimonial statement under the Confrontation Clause of the 5th Amendment of the United States Constitution.”
  • On December 21, 2011, the Michigan Supreme Court granted the People’s leave to appeal the case. (Docket # 144036).
  • Until the Michigan Supreme Court decides the case, all cases addressing this issue are to be held in abeyance.
slide4
Berghuis v. Thompkins,No. 08-1470 (United States Supreme Court, June 1, 2010)
  • The police need not obtain a waiver before interrogating a suspect but need only inform the suspect of his rights under Miranda and may begin questioning once the suspect acknowledges his rights.
  • Second, a suspect waives his rights under Miranda once he voluntarily answers questions knowing that he need not do so.
  • Third, a suspect must unambiguously invoke his right to remain silent if he wishes to invoke his right to cut off questioning -- he cannot do so through ambiguous conduct or by merely remaining silent.
slide5
People v Hyde,No. 282782 (Mich. App., September 1, 2009)
  • The Court held that taking the blood sample under the implied consent law was improper due to the defendant’s diabetes.
  • Therefore, the Court concluded that the defendant’s blood was unconstitutionally seized in violation of the 4th Amendment, and the test results should be suppressed.
people v arndt no 300301 mich app 12 27 11
People v Arndt, No. 300301(Mich App 12/27/11)

HELD: Defendant did not advise the arresting officer that he was a diabetic, although defendant was asked whether he had any medical conditions and whether he was taking any prescribed medications. Therefore, the officer had no reason to advise defendant that the implied consent statute did not apply to him.

slide7
Federal District Court ruled that the portion of the MIP statute, compelling a PBT upon a finding a reasonable cause, constituted an unreasonable search without a warrant. Platte, et al v Thomas Township, et al, 504 F Supp 2d 227 (ED Mich, 2007).

Police officers may not rely on any authority granted them pursuant to MCL 436.1703(6).

MIP (MCL 436.1703)

slide8

People v Philabuan,461 Mich 255 (1999)

A subject who refuses to submit to a chemical test given pursuant to a search warrant is subject to being charged with resisting or obstructing an officer (even if no active aggression was exhibited).

slide9

People v Burruss,No. 281039 (Mich. App., Nov. 18, 2009)

The dangling ornaments did not create reasonable suspicion for stopping a vehicle properly registered in another state.

slide10
A person who takes a chemical test

administered at a peace officer’s request

as provided in this section shall be given a

reasonable opportunity to have a person

of his or her own choosing administer 1 of

the chemical tests described in this

subsection within a reasonable time after

his or her detention. MCL 257.625a(6)(d).

Independent Tests

slide11

People v Anstey, 476 Mich 436 (2006)

  • Dismissal of charges and suppression of evidence is not the appropriate remedy for violation of statutory right to an independent test
  • Trial courts must give appropriate instructions, telling jurors that statutory right was violated
slide12

People v Yamat,474 Mich 49 (2006)

Operate means “actual physical” – power or

authority to guide or manage. Act of grabbing

steering wheel and causing car to veer

constitutes actual physical control.

operate a vehicle not just driving
Operate a Vehicle(not just “driving”)

A person, whether licensed or not, shall not operate a vehicle upon highway or other place open to the general public or generally accessible to motor vehicles including an area designated for the parking of vehicles…..MCL 257.625(1).

slide14

People v Wood,450 Mich 399 (1995)

The term “operate” must be defined in terms

of the danger the drunk driving statute was

meant to prevent; the collision of a vehicle with

other persons or property.

people v stephens 262 mich app 213 2004 people v solmonson 261 mich app 657 2004
People v Stephens,262 Mich App 213 (2004)People v Solmonson,261 Mich App 657 (2004)

Even if suspect was not “operating” at moment

that police observed conduct (sleeping in a

parked car), can still be charged and convicted

if can prove circumstantially that suspect was

operating vehicle while intoxicated prior to the

police approach.

slide16

People v Nickerson,227 Mich App 434 (1998)

Pit area of a speedway is

“generally accessible to motor vehicles”

even though there are age and waiver

requirements for admission.

What about private driveways?

slide17

People v Hrlic,277 Mich App 260 (2008)

Signaling a lane change is required by

the Michigan Vehicle Code and can be

the basis for a traffic stop.

slide18

People v Dinardo, No. 294194 (Mich. App., October 12, 2010)

  • “The original DataMaster ticket did not amount to testimonial hearsay within the meaning of Crawford v. Washington.”
  • “Further, the instrument was not a declarant because it was not a person and the printout it generated did not constitute hearsay.”
slide19

People v Barbarich, No. 290772 (Mich. App., February 1, 2011)

  • “It can be inferred from her statement, “Almost hit me,” and action of pointing to the vehicle traveling immediately in front of her, that defendant’s vehicle had recently almost come into contact with the woman’s vehicle; her tip was clearly based on first-hand and nearly contemporaneous observations, which further strengthens the veracity of the information.”
slide20

People v Lechleiter, No. 293577 (Mich. App., December 7, 2010)

  • The Court ruled that “A person who places a motor vehicle in motion or in a position posing a significant risk of causing a collision, remains responsible for that motor vehicle until such time as that vehicle is put into some position where it poses no risk to other drivers.”
dangers of bath salts
Dangers of Bath Salts
  • Abuse of recreational drugs sold as "bath salts" has sent 65 people to hospitals in Michigan over the past six months and caused at least one overdose death, according to a federal report issued May 18, 2011.
what is bath salts
What is Bath Salts?
  • It's a derivative that's very similar to amphetamines, and its side effects are largely the same side effects we see with amphetamines in large dose.
  • The "salts" come with gentle-sounding names like Ivory Wave and Vanilla Sky and are typically snorted, smoked, injected and even mixed with water as a beverage.
what about michigan
What about Michigan?
  • Effective August 1, Public Act 88, 2011 amends the Public Health Code to include all of the following in the list of Schedule 1 controlled substances:
  • -- Methylenedioxypyrovalerone, also known as Bath Salts, Cloud Nine, Hurricane Charlie, Ivory Wave, MDPV, Ocean, Red Dove, Scarface, Sonic, White Dove, and White Lightning.
  • -- 5,6-Methylenedioxy-2-aminoindane, also known as MDAI, and Woof-Woof.
  • -- Naphyrone (Naphthylpyrovalerone), also known as NRG-1 and Rave.
  • -- Pyrovalerone (1-(4-Methylphenyl)-2-(1-pyrrolidinyl)-1-pentanone).
spice k2
SPICE/K2
  • Plant material
  • Marketed as incense
  • Laced with various synthetic compounds that behave like THC
  • Smoked or mixed in drink or food
  • Was sold LEGALLY and LOCALLY
  • 1g -3g packages About 2x price of marihuana
psychoactive compounds solid white powder or oil
Psychoactive CompoundsSolid (white powder) or Oil
  • HU-210
    • Synthetic cannabinoid
    • 100-800x more potent than THC
    • Binds over 100 times more tightly to CB1 receptor
    • Structurally and pharmacologically similar to THC
psychoactive compounds solid white powder or oil1
Psychoactive CompoundsSolid (white powder) or Oil
  • CP-47,497
    • Synthetic cannabinoid
    • Created by Pfizer 1995
    • Not structurally related to THC

JWH-073

    • Synthetic cannabinoid
    • Not structurally related to THC
k2 spice law in michigan
K2 Spice Law in Michigan
  • Effective, October 1, 2010, K2 Spice is classified as a Schedule 1 Controlled Substance under the Michigan Public Health Code
worse than marihuana
Worse than Marihuana?
  • 6 week period (Feb – March 2010) ER
    • St Louis = 30 bad trips
    • Atlanta = 12
    • New Jersey = 2
    • MO Poison Control 10+ (Dec 09 – Jan 2010)

“When you take these drugs, you are hijacking

the part of the brain important for many functions:

temperature control, food intake, perception,

memory and problem solving” – Dr. Huestis

Chief of Chemistry and Drug Metabolism

National Institute Drug Abuse

what can you do
What can you do?
  • REPORT

DEA would appreciate information related to LEO encounters, identification and abuse of Spice

DEA Headquarters

Attn: Drug and Chemical Evaluation Section

8701 Morrissette Dr

Springfield, VA 22152

(202) 307-7183

ODE@usdoj.gov.

growing problem
Growing Problem
  • One in three (33%) of all drivers with known drug-test results who were killed in motor vehicle crashes in 2009 tested positive for drugs (illegal substances as well as medications).
  • “Drugged driving is a much bigger public health threat than most people realize.” Gil Kelikowske, Director of National Control Drug Policy.
2007 national roadside survey
2007 National Roadside Survey
  • What about the other 86.2%
    • Prescription and Over-the-Counter
      • Stimulants
      • Sedatives
      • Anti-Depressants
      • Narcotics
available drugs
Available Drugs

Marihuana

B.C. Bud

Diverted pharmaceutical drugs

K2/Spice

Ketamine

Ambien

problem
Problem
  • Officer stops for OWI
    • No bad driving
    • Appears to be impaired
    • Performs SFST properly
    • .001 on the preliminary breath test
    • Decide to arrest or not?
legal issues
Legal Issues
  • Reasonable Suspicion
    • To Stop
    • To Administer Field Sobriety Test
  • Proper Administration of the SFSTs
    • Substantial Compliance
  • Probable Cause for Arrest
  • Roadside Questioning/Miranda
  • Sufficiency of Evidence to Prove Elements of the Offense
drug evaluation and classification program
Drug Evaluation and Classification Program
  • As of December 2010, Michigan is a Drug Recognition Expert (DRE) State.
  • First DRE Class is April-May, 2011, sponsored by OHSP.
  • Three-Phase Training Program:
    • Pre-School (drug terminology)
    • DRE School (30 modules of instruction)
    • Certification Training (average 120 hours)
advanced roadside impaired driving enforcement aride
ADVANCED ROADSIDE IMPAIRED DRIVING ENFORCEMENT (ARIDE)
  • Program was developed by NHTSA with input from the IACP.
  • It was created to address the gap in training between the Standardized Field Sobriety Testing (SFST) and the Drug Evaluation Classification (DEC) Program.
  • It provides officers with the opportunity to develop advanced skills and knowledge that will assist them in identifying alcohol and drug impaired drivers.
slide41

Course Objectives

  • Properly administer & articulate the SFSTs;
  • Describe the relationship of drugs to impaired driving incidents;
  • Observe, identify and articulate the observable signs of drug impairment;
  • Recognize medical conditions which may mimic signs of impairment.
goals of aride
GOALS OF ARIDE
  • Able to determine if an individual is under the influence of a drug or drugs other than alcohol, or the combined influence and other drugs, or suffering from some injury or illness that produces similar signs to alcohol/drug impairment.
  • Identify the broad category or categories of drugs inducing the observable signs and symptoms of impairment.
why aride
Why ARIDE?
  • Better identification of drugged drivers
  • Better arrests
  • Better prosecutions
  • Saved lives
why dres are so important
Why DREs Are So Important
  • Law Enforcement Can Spot the Signs
    • Across Colorado, there are specially trained law enforcement officers known as Drug Recognition Experts (DRE).  These officers have the ability to detect physical signs of drug impairment. DREs are viewed as one of the most effective law enforcement tools in efforts to reduce drugged driving.  Remember:  You can’t hide driving under the influence of drugs!
michigan roadside drug testing
Michigan-Roadside Drug Testing

Michigan drivers could become the first in nation subject to roadside drug testing under a bill recently introduced in the legislature.

The legislation would authorize police to administer a roadside saliva test for illegal drug use, just as they do breath tests for alcohol.

According to NHTSA, there is currently no accurate and reliable way to measure the level or degree of driving impairment associated with the use of drugs.

upcoming aride classes
Upcoming ARIDE Classes
  • April 10-11th, Kalamazoo County
  • May 8-9th, Mount Pleasant
  • June 12-13th, Traverse City
  • July 10-11th, Auburn Hills
  • Contact Kelly Goynes at goynesk@michigan.gov.
what is prohibited under the act
What is ProhibitedUnder the Act?
  • Smoking marihuana “in any public place”
  • Smoking marihuana on any form of public transportation
  • Any use by a person who has no serious or debilitating medical condition
  • Operating, navigating, or being in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marihuana
  • Any use or possession in a school bus
  • Any use or possession on the grounds of any preschool, primary, or secondary school
  • Any use or possession in any correctional facility
other michigan laws
Other Michigan Laws

MCL 333.26427(e) reads that:

“All other acts and parts of acts inconsistent with this act do not apply to the medical use of marihuana as provided by this act.”

operation of a motor vehicle
Operation of a Motor Vehicle

Although the Act prohibits the operation of any motor vehicle while under the influence of Marihuana; it does not make reference to Michigan’s current OUID Per Se Law.

people v koon november 16 2010 grand traverse county circuit court
People v. Koon, November 16, 2010, Grand Traverse County Circuit Court

The Circuit Court ruled that:

“The MMMA, which supersedes MCL 257.625, states that qualified patients are proscribed from operating a motor vehicle while under the influence of marihuana. Therefore, evidence of impairment is a necessary requirement.”

slide54
People v Koon,No. 301443, July 22, 2011
  • The Michigan Court of Appeals granted the People’s Application for Leave to Appeal.
  • Judge O’Connell would have peremptorily reversed the circuit court's order of November 16,2010, and remanded for further proceedings:

“Prior to the passage of the MMMA, Michigan law prohibited operation of a motor vehicle with any amount of marihuana in the body. MCL 257.625(8). The MMMA did not change the law.”

slide55
People v Feezel,No. 138031 (Mich. Sup. Ct., June 8, 2010)
  • The Court ruled that 11-Carboxy-THC (“TCOOH”) is not a derivative of marihuana.
  • In doing so, the Feezel Court removed 11-Carboxy-THC (“TCOOH”) from the list of Schedule 1 “controlled substances” that can be considered under MCL 257.625(8).
ouid law in michigan
OUID LAW in Michigan

If any amount of a schedule one controlled substance (e.g. marihuana) or cocaine in body, the Prosecutor does not need to prove that suspect was under the influence or impaired. MCL 257.625(8). If it is not a schedule one or cocaine, the Prosecutor must prove operating under the influence or impaired. MCL 257.625(1).

11-Carboxy THC (“TCOOH”) is not a schedule 1 controlled substance -- the prosecution can not charge a defendant for OUID Per Se if the defendant only has 11-Carboxy THC (“TCOOH”) in his/her system. People v. Feezel, No. 138031 (Mich. Sup. Ct., June 8, 2010).

enclosed locked facility
Enclosed, Locked Facility

A closet, room, or other enclosed area equipped with locks or other security devices that permit access only by a registered primary caregiver or registered qualifying patient. MCL 333.26423(c).

people v king shiawassee circuit court september 30 2009
People v. King, Shiawassee Circuit Court, September 30, 2009

Chain-link dog kennel behind the house, 6 feet tall, but had an open top and was not anchored to the ground.

Marihuana plants growing inside defendant’s unlocked living room closet.

Defendant charged with two counts of manufacturing marihuana.

Defendant asserted affirmative defense under Section 8 of the Act.

Prosecutor argued that the Defendant failed to comply with the Act because marihuana plants not in an enclosed, locked facility.

The Circuit Court agreed with the Defendant and dismissed the case.

people v king 9 30 09
People v. King, 9/30/09

The Shiawassee County Circuit Court ruled that “The Defendant was present at the time of the arrival of the police and he was there at the time the police searched the property. Therefore, the Defendant was acting as the security device by limiting access to the marihuana.”

slide60
People v King,No. 294682 (Mich. App., February 3, 2011)
  • “The kennel had a lock on the chain-link door, but had no fencing or other material over the top and it could be lifted off the ground.”
  • “Enclosed area” follows the word “closet” and “room,” both of which have specific limited meanings and which have the common characteristic of being stationery and closed on all sides.
slide61
People v King,No. 294682 (Mich. App., February 3, 2011)
  • Trial court’s conclusion that defendant acted as a “security device” for the marihuana growing inside his home is pure sophistry and belied by defense counsel’s unsurprising admission at oral argument that, at times, defendant left the property, thus leaving the marihuana without a “security device” and accessible to someone other than defendant as the registered patient.”
michigan attorney general s position june 28 2011
Michigan Attorney General’s Position-June 28, 2011
  • The Attorney General opined that “The Michigan Medical Marihuana Act, prohibits the joint cooperative cultivation or sharing of marihuana plants because each patient’s plants must be grown and maintained in a separate enclosed, locked facility that is only accessible to the registered patient or the patient’s registered primary caregiver.”