Troy District Judge Invalidates Driving While High Law

52-4 District Judge
Kirsten Hartig

By: Timothy P. Flynn

This ruling is going to get some attention in high places.  Troy District Judge Kirsten Nielsen Hartig has ruled that Michigan's motor vehicle code provision criminalizing the operation of a motor vehicle with the presence of a controlled substance [marijuana] violates the equal protection clause of the Michigan and United States Constitutions.

The case, People v Sulaka, arose in 2010 when the accused was allegedly speeding and, when pulled-over, could not produce a drivers license.  In the process of making an arrest for this seemingly innocuous violation, the Troy Police officer detected the odor of marijuana coming from the car and took Sulaka to the hospital for a blood draw which yielded a trace amount of THC.

Our friend, Superlawyer Neil Rockind, argued that the controlled substance provision of the motor vehicle code improperly created a strict liability crime, improperly shifted the burden of proof from the prosecutor to the accused, and unconstitutionally created two classes of people treated differently under the law.

Judge Hartig was persuaded to invalidate the motor vehicle code on equal protection grounds.  Here's how the idea works: there are two classes of people subjected to the controlled substance provision of our motor vehicle code.  One group of drivers have medical marijuana cards and are permitted to have THC in their blood stream while driving, so long as the level does not impair their ability to drive [so says the Michigan Supreme Court in a recent case dealing with the medical marijuana act].  The other group of drivers has no such pot card and are strictly liable for operating a vehicle with any amount of THC in their blood.

In her ruling, Judge Hartig relied on a case from the Georgia Supreme Court that held that the effects of legally used marijuana [i.e. medical marijuana here in Michigan] are indistinguishable from the effects of illegal marijuana consumption: the driver is still buzzed under either set of circumstances.  Therefore, no rational public safety interest is served by creating these distinct classes of drivers thus, the equal protection clause of our Constitution is offended.

The case has already made one trip to the Oakland County Circuit Court for the prosecutor's appeal of Judge Hartig's initial dismissal of the case.  Oakland Circuit Judge Colleen O'Brien relied on the now-reversed Court of Appeals decision in the People v Koon case, which ruled that even drivers with medical marijuana cards violated the motor vehicle code when driving with THC in their bloodstream.  [The Law Blogger's take on the Koon case is here.]

Of course, the Oakland County Prosecutor has again appealed Judge Hartig's second dismissal so the case seems destined to grind further through the appellate process.  Regardless of how Judge O'Brien rules in the [second] appeal of right, both sides are heavily invested in this case and can be expected to apply for further discretionary appeal to the Michigan Court of Appeals.

We shall see whether the Court of Appeals will grant leave in light of our High Court's ruling in the Koon case.  At some point, our legislature needs to address the disconnect between the motor vehicle code and the medical marijuana act.

Unlike alcohol, which utilizes a blood-alcohol threshold for driving, there is no similar scale for drivers who recently smoked marijuana.  As long as there are lawyers like Rockind out there to skillfully protect the rights of the accused, this will continue to be a problem for the courts.  Perhaps its time for the legislature to act on this issue instead of leaving it up to local law enforcement, prosecutors and municipal judges.

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Posted in: Judge Kristen Nielsen Hartig,Michigan Court of Appeals,Michigan Medical Marijuana Act,motor vehicle code,Neil Rockind,Oakland County Circuit Judge Colleen O'Brien,People v Koon

Kelsey's Law Bans Cell Phone Use for Teen Drivers

Kelsey Raffaele killed at 17

As of today, Michigan roads have become a little bit safer.  On January 8^th, 2013 Governor Rick Snyder signed into law Public Act 592 of 2012, also known as Kelsey’s Law.  The new law, which takes effect today, is named in honor of Kelsey Raffaele, 17, of Sault Ste. Marie, who died tragically in a cellphone-related automobile crash in 2010.

The law bans 16 and 17 year old drivers with a level 1 or a level 2 driver’s license under Michigan’s graduated licensing system from using a handheld phone while driving. 

A level 1 driver has the most restrictions, while a level 2 driver only has a few restrictions –such as the number of passengers allowed and limits on nighttime driving.  A teen who is at least 17 and has at least six months of driving experience as a level 2 driver may qualify for a level 3 license- the typical, unrestricted MI driver's license.

Violation of the law is a primary offense, meaning police can pull over a young driver for no other reason than being on a cell phone.  However, both the governor’s office and law enforcement spokespersons signaled that, in most cases, Kelsey’s Law will be enforced only after detection of another moving violation; this will effectively making enforcement of the law secondary.

A violation of the law will result in a civil infraction with a fine to be determined by the local jurisdiction, and could cause the level 1 or 2 driver’s license period to be extended.  No points will be assigned to the driver's record and drivers will not be punished for using a vehicle's integrated hands-free phone system or for using cell phones to report an emergency.

 

Officers say that Kelsey's Law is not about punishing teenagers driving on a probationary license, but all about saving lives.  We here at the Law Blogger could not agree more.

Nationally, car crashes are the leading cause of death for young drivers.  In 2011, 154 fatal crashes in Michigan were caused by a driver under 21. So far this year, there have been more than 300,000 crashes due to cellphones in the US, and not all of these crashes are attributable to teen-drivers.

While an all-out cell phone ban for all drivers would be overreaching, we do believe teen-drivers often learn behaviors from their parents, who may be multitasking [talking, texting and e-mailing] while driving.  We note that it is illegal in Michigan for any driver to text while driving and believe it’s important for parents to set a good example.

Michigan roads are a bit safer today thanks to Kelsey’s Law.  Yet, one has to wonder how much safer Michigan roads could be if experienced drivers took heed of the new law, even though it does not apply to them.

As the bumper sticker says, “Get off the phone and drive!”

www.clarkstonlegal.com

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Posted in: criminal defense lawyer,Kelsey Raffaele,motor vehicle code,Roberto Bihar,texting

Automated Vehicles and the Motor Vehicle Code

According to Bryant Walker Smith, a fellow at Stanford's Center for the Internet and Society, automated vehicles have been "just 20-years away" since the 1930s.  Lately, however, data giant, Google, and some of the OEMs have started taking the concept seriously.

So serious, in fact, that automated vehicles are now out there folks. 

This has led Mr. Smith to publish a comprehensive study on the legalities of automated vehicles.  Smith concludes that, although automated vehicles are "probably" legal from the national regulatory prespective of the National Highway Traffic Safety Administration, state laws will "complicate" the transition to automated vehicles.

Why automated vehicles anyway?  Many motorists enjoy, at least to some extent, the driving process.  Smith's answers are: safety and saved lives.  If done correctly, there are also long-term cost savings embedded into the notion of automated vehicles; savings of fuel and time.

Smith's comprehensive study takes a detailed look at the three states [California, of course, Florida, and Nevada] that already have included "automated vehicle" provisions in their motor vehicle codes.  The study even includes a comprehensive model bill for progressive state legislators to consider.  Apparently, New Jersey, Arizona, Hawaii (?), Oklahoma, and the District of Colombia all have bills under active consideration.

One legal issue that comes to our simple mind over here at the Law Blogger is the actus reus [i.e. intentional bad act] requirement that a criminal law must contain to pass constitutional muster.  While we do understand the philosophy behind the "implied consent" concept underpinning many provisions of a motor vehicle code, we are compelled to ask, can a human be cited for acts undertaken by a machine?

This could be a small town lawyer's dream.  Imagine the cornucopia of defenses available for any potential automated motor vehicle code.  And if the legislatures go the "strict liability" route, the deep thinking consitutional lawyers will be well-fed.

Also, we cannot forget the product liability inquiry of who is responsible when [not if] something goes wrong, and someone is injured or killed.  Automated vehicles, if they proliferate, will produce a brand new branch of products liability tort law.

It will be interesting to see how far these fancy cars get along the respective legislative highways of the fifty states.  One thing is for sure: the process has begun.

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Posted in: automated vehicle,California,Google,lawyer,motor vehicle code,strict liability,tort