Judging Traffic (May 2018):


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Circuit Court Errs in Statutory Interpretation

The Court of Appeals of the State of Michigan rendered an opinion in People v. Mikulen on April 24, 2018.  Mr. Mikulen was observed driving with a “corroded, obscured license plate.”  After he was stopped to investigate that issue, the officer smelled alcohol, an impaired driving investigation began, which lead to Mr. Mikulen being charged with “OVI” or “operating a motor vehicle while intoxicated.”  

Mr. Mikulen was tried by a jury in a Michigan district court, which is a limited jurisdiction court.  The jury was instructed as to the offense of OVI and the lesser included offense of “OWVI” or “operating a motor vehicle while visibly impaired.”  He was ultimately convicted of the lesser included offense of OWVI.  It is important to note that the officer testified that the defendant “was not driving in an erratic, improper, or impaired manner.” On appeal to the circuit court the appellate judge determined that because there was no evidence submitted to the jury to suggest that the defendant was actually driving in an manner consistent with being intoxicated, the OWVI charge should not have been submitted to the jury and he vacated the conviction. 

The issue on appeal to the Court of Appeals of the State of Michigan was whether the OVWI statute requires proof that the defendant was actually driving in a manner that is consistent with alcohol intoxication.  The appeals court held the following: 

The offense of OWVI does require proof that a person’s ability to operate a motor vehicle was visibly impaired, MCL 257.625(3), and we hold that this evidentiary mandate demands that a prosecutor present evidence describing or depicting actions, conduct, characteristics, or movements of the person during the pertinent time period, revealing an impaired ability relevant to operating a vehicle. Such evidence would be visual or observational in nature, thereby giving meaning to the term “visibly,” as used in MCL 257.625. And the visibility of an impairment, under the grammatical construct of MCL 257.625(3), goes to the visibility of a driver’s ability to operate a vehicle, not the visibility of the vehicle’s movements or driving itself.4 If there is no evidence that a defendant was actually operating his or her vehicle in an impaired or erratic manner, a prosecutor can nevertheless seek to establish that the defendant’s ability to operate the vehicle was visibly impaired by evidence of, for example, the defendant failing a sobriety test, the defendant stumbling out of a vehicle and unable to walk without falling over, or the defendant speaking incoherently or in a confused manner. 5 Again, the best evidence showing that a defendant’s ability to operate a motor vehicle was visibly impaired would likely be testimony that the defendant’s vehicle was observed swerving or moving in some improper fashion, but such evidence is not absolutely required to obtain a conviction for OWVI.

This is a very interesting case because whole opinion turns on how “visibly” is defined within the statute.     

Alternative Solution to Distracted Driving

Summer Galitz, a 2018 J.D. candidate recently published an article in the University of Miami Law Review titled Killer Cell Phones and Complacent Companies: How Apple Fails to Cure Distracted Driving Fatalities. Although the concept of putting the onus on cellphone manufactures to build their devices in a way that they can’t be used while driving is not new, Ms. Galitz does an excellent job of developing the argument. In her view, this may be the only viable solution and the technology to effectuate this has been available for a number of years. She argues that it will take federal legislation for cell phone manufactures to implement the technology. This article is well worth taking the time to read. The abstract to the article states:

With an astounding 1.6 million car crashes occurring each year due to cell phone use while driving, it is clear that the United States is suffering from a serious epidemic of pervasive cell phone use while driving. Although a majority of Americans clearly understand the hazards and dangers involved in texting while driving, cell phone addiction continues to keep drivers glued to their phones. Apple has a tool at its disposal to ensure that drivers no longer use their cell phones while they are driving, yet it has failed to implement its technology. Apple's Driver Handheld Computing Device Lock-Out patent, granted in April 2014, would disable all distracting functions on a driver's phone through a lock-out mechanism. As one of the world's greatest social influencers, Apple has the power and the responsibility to change the culture behind texting and driving, and implementation of its patent would be a great step toward eliminating deadly distracted driving caused by cell phone use.

Because people are dependent on and addicted to their cell phones, it is irrational to believe that cell phone owners can, or will, take the initiative to stop using their cell phones while driving. And studies have shown that public service announcements and state bans and enforcement efforts largely have not helped. For this reason, the onus should be placed on the federal government to force Apple and other phone manufacturers to implement life-saving lock-out technology. Both automobile and cell phone manufacturers have the means to change the way we drive for the better, and with the help of the federal government, these new safety requirements that disable drivers’ cell phones when in a moving car can finally be realized. While Apple has exacerbated the distracted driving problem by creating the smartphone, the powerful tech giant has also created the solution. It is time Apple puts its solution to use.

The Fourth of Six Video on Impaired Driving Issues for Judges

The fourth of six videos produced by the National Center for State Courts and ABA Judicial Outreach Liaisons, supported by NHTSA, about issues in traffic adjudication. The remaining videos will be released throughout 2018. In this video titled Pretrial Supervision, judges discuss the issues surrounding pretrial supervision, and balancing public safety needs with the due process rights of DWI defendants. All four videos are available here.

The Constitutionality of Preliminary Breath Tests

In 2017, the North Dakota Supreme Court considered the issue of whether pre-arrest preliminary breath tests or PBTs violated the 4th Amendment prohibition against unreasonable searches and seizures in Barrios-Flores v. Levi, 2017 ND 117, 894 N.W.2d 888. The high court had previously determined that post arrest warrantless breath testing did not violate the 4th Amendment. In Barrios-Flores v. Levi the high Court determined that warrantless PBTs did not violate the 4th Amendment and said searches only need to be supported by reasonable suspicion and not probable cause. This case is important because North Dakota joins a majority of states that have reached the same conclusion.

Nick Surma published a law review article in the most recent edition of the North Dakota Law Review titled, Searches and Automobiles- Grounds or Cause: Assessing the Constitutionality of Warrantless Pre-Arrest Breath Tests and the Grounds on Which Such Tests May Be Requested. In his article, he fully describes the reasoning behind the North Dakota Supreme Court opinion in Barrios-Flores v. Levi and it is clear that from his perspective the high court was conscious of the need for highway safety as well as the important role that PBTs play in that process. The article is well written and worth reading. The abstract to the article states:

In Barrios-Flores v. Levi, the North Dakota Supreme Court held warrantless pre-arrest breath tests are not an unreasonable search under the Fourth Amendment. Additionally, the court found that under N.D.C.C. § 39- 20-14, and based on the decisions of other state courts, law enforcement may request a preliminary screening test based on reasonable suspicion that a driver’s body contains alcohol. This decision hinges on the United States Supreme Court’s decision in Birchfield v. North Dakota, which held that warrantless breath tests given incident to an arrest do not violate the Fourth Amendment. In Barrios-Flores, the North Dakota Supreme Court found that preliminary breath tests bear a similar lack of intrusiveness as a breath test administered incident to an arrest. The court also found that nothing in Birchfield changes its previous analysis in State v. Baxter, which allowed preliminary breath tests to be administered on the basis of reasonable suspicion that a driver’s body contains alcohol. Barrios-Flores analyzes an issue involving the constitutionality of warrantless breath tests that Birchfield did not. Its holding is important for many involved in DUI proceedings including defendants, defense attorneys, and courts. North Dakota has tried to combat drunk driving through a number of different means. The court’s holding clearly does not want to impede upon or restrict these measures. Therefore, the court held that warrantless pre-arrest breath tests do not violate the Fourth Amendment, and they may be requested based on reasonable suspicion that a driver’s body contains alcohol.

Webinar: Building a Relationship with Your State Highway Safety Office

The National Center for DWI Courts (NCDC) is pleased to announce registration is now open for a free webinar: Building a Relationship with Your State Highway Safety Office.  The webinar will be held Thursday, May 24, 2018 at 2 pm ET.  Registration is required.  

This presentation will discuss the role of the Michigan Office of Highway Safety Planning in funding DWI courts and assisting with the development, implementation and further training of these programs. It will provide DWI court teams insight into the importance of a good working relationship with their state Highway Safety Office.

Click here to register!

About the presenter:

Christy Sanborn has served as the Impaired Driving Program Coordinator for the Michigan Office of Highway Safety Planning since 2015. Her responsibilities include oversight of NHTSA impaired-driving grant funding for countermeasures designed to reduce impaired driving-related crashes, as well as supporting Michigan OHSP programming in such areas as sobriety courts, Traffic Safety Resource Prosecutors, Judicial Outreach Liaisons and training for the criminal justice community.

Child Neglect Based on Impaired Driving

The Court of Appeals of Virginia rendered an opinion in Camp v. Commonwealth on May 8, 2018.  Ms. Camp was observed driving with two flat tires and she nearly struck a police officer's vehicle while making a turn.  The police officer followed her to an apartment complex.  Ms. Camp had two children in her vehicle and it was immediately apparent she was extremely intoxicated.  Standard arrest procedures were followed which included a blood draw based on a warrant and blood testing.  Ms. Camp’s BAC was .25 but there was evidence at trial that it was likely much higher while driving as there was some delay getting her blood drawn.  Ms. Camp was ultimately convicted of two counts of felony child neglect pursuant to Code § 18.2-371.1(B), a generalized child neglect statute. 

Virginia Code § 18.2-371.1(B)(1) provides:

[a]ny parent, guardian, or other person responsible for the care of a child under the age of 18 whose willful act or omission in the care of such child was so gross, wanton, and culpable as to show a reckless disregard for human life is guilty of a Class 6 felony.

The issue on appeal was whether the evidence established that appellant committed a “willful act or omission in the care of such child [that] was so gross, wanton, and culpable as to show a reckless disregard for human life.”  The court determined that driving with a BAC that is .25, representing more than 3 times the legal limit with children under the age of 18 exposes those children to more than a mere possibility of injury, they were in fact likely to be injured.  Further, the factual circumstances of driving with 2 flat tires and nearly crashing support this conclusion.  This conclusion is consistent with 2 prior Virginia cases with nearly identical fact patterns.  Therefore,  Court of Appeals of Virginia affirmed the convictions. 

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