Effective May 2014, Enrolled House Bill no 5154 makes significant changes to the manner in which an important legal right in felony drunk driving cases is fulfilled. But first, some background into the felony drunk driving preliminary exam, based on an excellent article written by Cooley Law professor Lew Langham.[i]
Currently, every criminal defendant charged with a felony in Michigan is entitled to a preliminary examination, also known as a probable-cause hearing. Once a prosecuting attorney brings criminal charges against a defendant, the State has the burden—at a preliminary examination—of convincing a district-court judge that the defendant should be bound over to stand trial on the felony charge(s) at the circuit-court level. Specifically, the State must prove that a crime has been committed and that there is probable cause to believe that this accused criminal defendant committed that specific crime.[ii]
In Michigan, the defendant is entitled to a preliminary examination within fourteen days of arraignment. If the defendant waives the preliminary examination, then the court must bind the defendant over for trial on the charges set forth in the complaint. If the preliminary examination does occur, then the court must make a probable-cause finding before binding the accused defendant over for trial. After considering the evidence, if the court determines that there is probable cause to believe that an offense not cognizable by the district court has been committed and that the defendant committed it, then the court must bind the defendant over for trial. But if the court determines that probable cause does not exist to believe either that an offense has been committed or that the specific defendant committed that specific crime, then the court must dismiss the charge(s) and free the wrongfully accused defendant. Such a dismissal is without prejudice, so the prosecutor may initiate a subsequent prosecution for the same offense.[iii]
Historically, Michigan has recognized the importance of preliminary examinations. The Michigan Constitution of 1835 allowed for indictment by grand jury only, and a preliminary examination was required if a suspect was to be held before the grand jury convened. And in 1859, the Michigan Legislature passed Public Act 138, which recognized “the increased importance of the preliminary examination.”[iv]
Defense attorneys note that “[t]he judges who preside over the preliminary examinations are the gatekeepers to the criminal justice system” and that preliminary examinations “serve to weed out cases that are [either] without merit or overcharged. “Eliminating[v] preliminary examinations would only serve to destroy a system that has provided due-process protections for individuals charged with a felony by aggressive prosecutors.
Under the new preliminary exam / drunk driving law, the magistrate shall permit the testimony of any witness, except the complaining witness, an alleged eyewitness, or a law enforcement officer to whom the defendant is alleged to have made an incriminating statement, to be conducted by means of telephonic, voice, or video conferencing. The testimony taken by video conferencing shall be admissible in any subsequent trial or hearing as otherwise permitted by law
Now, if a person testifies from outside the courtroom (regardless of whether by audio or video) there is cross-examination, and in many ways it may be argued that this is substantially the same as if the person was in court. However, the quality of that cross-examination will suffer because there is no way to cross-examine a gesture, and expression, or some other form of body language that is not observed.
Also, the mechanics of impeachment, especially with exhibits, etc. will necessarily be more difficult and cumbersome, and therefore less effective.
Another important change is that if the prosecutor seeks to introduce a hearsay document (as permitted by the new amendments), and the sponsoring witness is not the author, there is no way to cross-examine on it. Also, the new eliminates the authentication requirement, which otherwise would require calling a witness to confirm that (for example), DataMaster logs admitted as business records are in fact a business records.
The most important expansion in the use of documents is in Sec. 11b(1)(d), which provides:
Except for the police investigative report, a report prepared by a law enforcement officer or other public agency. Reports permitted under this subdivision include, but are not limited to, a report of the findings of a technician of the division of the department of state police concerned with forensic science, a laboratory report, a medical report, a report of an arson investigator, and an autopsy report
Apparently, the bill sponsors were determined to make it easier for police experts, such as breath test operators and forensic technicians, to get their conclusions/opinions/laboratory reports into the record without actually having to appear for live testimony.
For the time being, criminal procedure in Michigan’s misdemeanor drunk driving cases remains unchanged. But for Michigan’s most serious drunk driving crimes, the job of the prosecutor just got a whole lot easier.
If you have been arrested in Michigan for a felony drunk driving, contact Patrick Barone of the Barone Defense Firm today for your FREE no obligation case evaluation!
___________________________________________[i] Langham, Preliminary Examination Reform: In Fairness We Trust or a Waste of Time and Resources? Cooley Law Review, [Vol. 28:2 2011]. [ii] Id. [iii] Id. at 233 [iv] Id. at 237 [v] Id. at 242