STATE OF MICHIGAN
IN THE CIRCUIT FOR THE COUNTY OF OAKLAND
PEOPLE OF THE TOWNSHIP
OF WEST BLOOMFIELD,
Plaintiff-Appellee, Circuit Court
No.
vs.
48th District Court
KEVIN AARON LANDAU, No, 06-WB83588
Defendant-Appellant.
____________________________________/
BRIEF OF DEFENDANT-APPELLANT
* * *
ORAL ARGUMENT REQUESTED
Arthur H. Landau (P16381)
Attorney for Defendant-Appellant
29777 Telegraph, Suite 2500
Southfield, MI 48034
(248) 948-0893
TABLE OF CONTENTS
PAGE(S)
Index to Authorities………………………………………………………………………………………………… iii
Statement of the Basis of Jurisdiction……………………………………………………………………… iv
Statement of Relief Sought……………………………………………………………………………………… v
Statement of Issue Involved……………………………………………………………………………………. vi
Statement of Facts…………………………………………………………………………………………………. 1
Argument
Applicable Standard of Review 3
DID THE TRIAL COURT COMMIT REVERSIBLE
ERROR IN DENYING DEFENDANT’S MOTION
FOR AN EVIDENTIARY HEARING TO CHALLENGE
CHEMICAL TEST AND ADVICE OF CHEMICAL
TEST RIGHTS? 3
Relief Requested…………………………………………………………………………………………………… 6
Proof of Service
INDEX TO AUTHORITIES CITED
CASES PAGE(S)
Brady v State of Maryland, 373 US 83 (1963) 4
People v Castle, 108 Mich App 353 (1981) 4, 5
People v Krulikowski, 60 Mich App 28 (1975) 3, 4
People v Tipolt, 198 Mich App 44, 46 (1993) 4
People v Wager, 233 Mich 1, 4 (1988) 4
Other Authorities:
MCLA 257.625(a) and (b) 1, 3, 4, 5
iii
STATEMENT OF THE BASIS OF JURISDICTION
Oakland Country Circuit Court has jurisdiction pursuant to MCR 7.103(A)(1) and 7.103(B)(1)-(5).
iv
STATEMENT OF RELIEF SOUGHT
Defendant-appellant respectfully requests that the Order of 48th District Court Judge Diane Dickow D’Agostini, in this matter be reversed and that and evidentiary hearing on the chemical test and advice of chemical test rights be scheduled at a date prior to any scheduled trial date.
v
STATEMENT OF ISSUE INVOLVED
DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN DENYING DEFENDANT’S MOTION FOR AN EVIDENTIARY HEARING TO CHALLENGE CHEMICAL TEST AND ADVICE OF CHEMICAL TEST RIGHTS?
Defendant-Appellant contends that the answer is “Yes”.
Plaintiff-Appellee contends that the answer is “No”.
vi
STATEMENT OF FACTS
In this matter, defendant was arrested in West Bloomfield Township on November 22, 2006, at approximately 12:22 a.m., for operating a vehicle under the influence of intoxicating liquor. Defendant was compliant with the officer’s requests at the scene and when taken to the police station he consented to talking an evidential breath alcohol test, the result of that chemical test being 15. Defendant asserts that he was not advised of his chemical test rights either prior to, at the time of, or immediately subsequent to the Breathalyzer at the station, as required by MCLA 257.625(a) and (b).
The case is presently pending in 48th District Court before Judge Diane Dickow D’Agostini, being case number 06-WB83588. On January 12, 2007, defendant filed a Motion to Challenge Tests, requesting an evidentiary hearing on the qualifications of the chemical test operator, the methods and procedure used in administering the evidential breath alcohol test (Datamaster), the time lapse and condition of defendant between his arrest and the chemical test, the length of time the Datamaster operator observed defendant prior to the test, whether the testing device was reliable and whether defendant was advised of all his chemical test rights under MCLA 257. 625(a) and (b).
On February 12, 2007 Judge D’Agostini denied defendant’s motion for an evidentiary hearing to challenge chemical tests and for failure to advise defendant of his chemical test rights, the written Order being entered by the court on March 22, 2007.
On March 28, 2007, defendant filed a Claim of Appeal in Oakland County Circuit Court from the trial court’s Order of March 22, 2007, denying defendant’s motion for an evidentiary hearing relative to the evidential breath alcohol test and defendant’s assertion that he was not advised of his chemical test rights. The Honorable Rae Lee Chabot, Oakland County Circuit Court Judge, on April 2, 2007, ordered a stay of proceedings in 48th District Court until this appeal has been decided.
On April 18, 2007, the Court granted Defendant’s Application for Leave to Appeal.
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ARGUMENT
DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN
DENYING DEFENDANT’S MOTION FOR AN EVIDENTIARY
HEARING TO CHALLENGE CHEMICAL TEST AND ADVICE
OF CHEMICAL, TEST RIGHTS?
APPLICABLE STANDARD OF REVIEW
Defendant-Appellant assets that he has a right to an evidentiary hearing prior to trial to determine whether the four (4) foundational requirements have been met for admission into evidence of the chemical test results and on his claim that he was not advised of his chemical test rights as mandated by MCLA 2.57.625(a) and (b). The standard of review is clear error in denying the evidentiary hearing. People v Krulikowski, 60 Mich App 28 (1975); MCLA 257.625(a) and (b).
ARGUMENT
The Prosecution has the duty to establish a proper foundation for admission of Datamaster test results in a drunk driving case. The arresting officer also has a duty to provide defendant with his chemical test rights. Defendant contends that it is a critical right of defendant to have an evidentiary hearing prior to trial at which defendant may challenge any chemical tests performed on him at the time of his drunk driving arrest and detention. Defendant requests that an evidentiary hearing be scheduled before trial on the following issues:
- whether the person performing the test was qualified to do so;
- whether the proper methods and procedures as promulgated by the Michigan State Police were followed in administering the test;
- the reliability of the testing device;
- whether defendant was advised of all statutory chemical test rights at the time of arrest and detention.
“People v Krulikowski, 60 Mich App 28 (1975), establishes the prosecutor’s duty to establish a proper foundation for admitting Breathalyzer test results in a drunk driving case. It held that the prosecution must establish the qualifications of the Breathalyzer operator, the method or procedure folled in administering the test, and the reliability of the testing device.”
In People v Krulikowski, supra, the Court went on to say that should the testimony at the requested hearing establish that these requirements were not followed, the drunk driving charge should be dismissed. As the Court said in Krulikowski, to the accused, the chemical test is as much an instrument of exculpation as it is inculpation. If officers fail to administer the chemical tests properly, a tremendous hardship results for defendant. Since alcohol in the blood quickly dissipates an accused is left with no way of gathering favorable evidence later if police negligence has prevented the administration of a proper chemical test. Brady v State of Maryland, 373 US 83 (1963).
Further, should the testimony further establish that the arresting officer failed to provide defendant his chemical test rights, MCLA 257.625(a) and (b), dismissal of all drunk driving charges is required, People v Castle, 108 Mich App 353 (1981)
In People v Wager, 233 Mich 1, 4 (1988), the Court of Appeals ruled;
“In order for chemical test results to be admitted into evidence, the prosecutor must meet four foundational requirements: (1) the operator administering the test was qualified, (2) the proper method or procedure was followed in administering the rest, (3) the test was performed within a reasonable time after the arrest, and (4) the testing device was reliable.”
Failure to meet any of the foundational requirements will preclude the use of the test results.
People v Tipolt, 198 Mich App 44, 46 (1993).
Further, MCLA 257.625(a) and (b) require that a person arrested for operating a vehicle under the influence of intoxicating liquor shall be advised of the following chemical test rights:
“(i) If he or she takes a chemical test of his or her blood, urine, or breath administered at the right to demand that a person of his or her own choosing administer 1 of the chemical tests.
(ii) The results of the test are admissible in a judicial proceeding as provided under this act and will be considered with other admissible evidence in determining the defendant’s innocence or guilt.
(iii) He or she is responsible for obtaining a chemical analysis of a test sample obtained at his or her own request.
(iv) If he or she refuses the request of a peace officer to take a test described in subparagraph (i), a test shall not be given without a court order, but the peace officer may seek to obtain a court order.
(v) Refusing a peace officer’s request to take a test described in subparagraph (i) will result in the suspension of his or her operator’s or chauffeur’s license and vehicle group designation or operating privilege and in the addition of 6 points to his or her driver record.”
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If the testimony establishes that the arresting officer failed to provide defendant with his chemical test rights under MCLA 257.625(a) and (b), dismissal of the drunk driving charge is required. People v Castle, 108 Mich App 353 (1981).
Defendant asserts that he was not advised of any of his chemical test rights as required by MCLA 257.625(a) and (b).
Defendant contends that an evidentiary hearing prior to trial is critical and may be dispositive of the case or may preclude chemical test results from being admitted at trial.
As such, defendant-appellant respectfully requests that the decision of the 48th District Court denying an evidentiary hearing be reversed.
4
RELIEF REQUESTED
WHEREFORE, Defendant-Appellant respectfully requests that the Order of 48th District Court Judge Diane Dickow D’Agostini, in this matter be reversed and that an evidentiary hearing on the chemical test and advice of chemical test rights be scheduled at a date prior to any scheduled trial date.
Respectfully submitted,
__________________________
Arthur H. Landau (P16381)
Attorney for Defendant-Appellant
29777 Telegraph, Suite 2500
Southfield, MI 48034
(248) 948-0893
Date: May 14, 2007
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