STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND

PEOPLE OF THE TOWNSHIP OF WEST BLOOMFIELD,

Plaintiff-Appellee,
CASE NO: 07-DA8602-AR
vs                                                                                                        Hon: Rae Lee Chabot

KEVIN AARON LANDAU,

Defendant-Appellant,

__________________________________/
Sherman & Sherman, P.C.
BY: NICCOLAS J. GROCHOWSKI, ESQ. (P63188)
Township Prosecuting Attorney
30700 Telegraph Road, Suite 3420
Bingham Farms, MI 48025-4590
(248) 540-3366 TELEPHONE
(248) 540-5959 FAX

ARTHUR H. LANDAU, ESQ. (P16381)
Attorney for Defendant
29777 Telegraph Rd., Suite 2500
Southfield, MI 48035
(248) 948-0893 TELEPHONE
____________________________________/

 

PLAINTIFF – APPELLEE’S BRIEF ON APPEAL

TABLE OF CONTENTS

INDEX OF AUTHORITIES……………………………………………………………………………………………………………………….… iii

Cases…………………………………………………………………………………………………………….………….…. iii

Other Authorities……………………………………………………………………………………………..…………. iii

STATEMENT OF BASSIS OF JURISDICTION………………………………………………………………………………. 1

STATEMENT OF QUESTIONS INVOLVED………………………………………………………………………………….. 2

STATEMENT OF FACTS…………………………………………………………………………………………………………..… 3

STANDARD OF REVIEW……………………………………………………………………………………………………………. 4

ARGUMENT……………………………………………………………………………………………………………………………… 5

1. The Trial Court did not commit reversible error in denying the Defendant’s Motion for an evidentiary hearing…………………………………………………………………………………………………. 5

RELIEF………………………………………………………………………………………………………………………………… 7

ii

INDEX OF AUTHORITIES

Cases

People v. Krulikowski,
60 Mich. App. 28, 230 N.W.2d 290 (1975)………………………………………………………………………… 5

People v. Hackett,
421 Mich. 388, 365 N. W. 2d 120 (1984)…………………………………………………………………………… 6

People v. Williams,
191 Mich. App. 269, 477 N.W.2d 877 (1991)…………………………………………………………………….. 6

Other Authorities

MCR, 7.210(A)……………………………………………………………………………………………………………………………. 5

MCR, 6.201………………………………………………………………………………………………………………………………….5

Administrative Order 1999-3……………………………………………………………………………………………. 5

iii

STATEMENT OF BASIS OF JURISDICTION

Plaintiff-Appellee accepts the Statement of Basis of Jurisdiction contained in Defendant-Appellant’s Brief as complete and correct.

1

STATEMENT OF QUESTIONS INVOLVED

Plaintiff-Appellee accepts the Statement of Questions Involved contained in Defendant-Appellant’s Brief as complete and correct.

2

STATEMENT OF FACTS

On or about January 12, 2007. Defendant-Appellant filed a Motion to Challenge Chemical Tests and Memorandum of Law with the District Court, attached hereto as Exhibit 1. On January 15, 2007, the Plaintiff-Appellee filed its response to the Motion, attached hereto as Exhibit 2. On February 12, 2007 the District Court Judge denied the Defendant-Appellant’s motion and set the matter for trail. The Defendant-Appellant then filed this interlocutory appeal.

3

STANDARD OF REVIEW

Appellee/Defendant accepts the Statement of Facts contained in Appellant/Plaintiff’s Brief as complete and correct.

4

ARGUMENT

1. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR IN DENYING THE DEFENDANT’S MOTION FOR AN EVIDENTIARY HEARING.

Review here is limited to the record developed by the trial court. MCR 7.210(A). Therefore, the sole issue to be decided is whether or not the Defendant-Appellant is entitled to an evidentiary hearing based only on his Motion and the response and the brief record created at the District Court.

The Defendant-Appellant’s original Motion, attached as Exhibit 1, although entitle “Motion to Challenge Chemical Tests” actually requests information from the People pursuant to MCR 6.201. However, MCR 6.201 is a discovery rule that the Michigan Supreme Court has clearly stated in Administrative Order 1999-3, that MCR 6.201 does not apply to Misdemeanor cases and there is no mandatory disclosure required of the prosecution and is inapplicable to a Motion to Challenge Chemical Tests.

None the less, the Defendant-Appellant’s Motion then has some paragraphs citing the criteria for laying a foundation for the admission of an Evidential Breath test, as set forth in the Defendant-Appellant’s Memorandum of Law, citing People v. Krulikowski, 60 Mich. App. 28 (1975). The Motion then requests from the court a hearing and determination of certain facts. On its face, the Defendant-Appellant’s Motion is nothing more than a demand of the People to lay a foundation for the admissibility of the Evidential Breath test prior to trial. The Motion alleges no error of law but rather demands findings of fact by the trial judge not by the jury. The proper time and place to argue whether or not a proper foundation is made for the admission of evidence is at the time of trial. Plaintiff-Appellee can find no authority what so ever that establishes a requirement to lay a proper foundation for admission of evidence prior to trial. Moreover, all of the Michigan authority discussing admission of evidence are reviewing the case on appeal after the trial, not before, and reviewing whether or not the trail court correctly decided to admit evidence or not.

The Defendant-Appellant’s Motion fails to set forth any errors or questions of law and fails to set forth any claim of error at all. As the Supreme Court stated in People v. Hackett, 421 Mich. 338, (1984) evidentiary hearings should not be utilized as a fishing expedition. See also, People v. Williams 191 Mich.App. 269, (1991). The effect of Defendant-Appellant’s Motion is a request for such a “fishing expedition” upon the court. Furthermore, already overly busy courts and prosecutors would be forced, in essence, to have two trials on the same case if this Honorable Court were grant the Defendant-Appellant’s requested relief. This is an unnecessary and unreasonable burden upon the criminal justice system.

The Defendant-Appellant’s Motion does not set forth any questions of law or even any disputable questions of fact. Although, the Defendant-Appellant argues questions of fact in his Brief on Appeal, this Honorable Courts review is limited to the record created at the District Court. The Defendant-Appellant has included additional claims and arguments in this appeal that were not presented or argued at the lower court. Defendant-Appellant’s additional arguments beyond his original Motion are without merit and cannot be considered because they were not part of the original record. Furthermore, had the Defendant-Appellant raised a question of fact in this original Motion, it is clearly established that questions of fact are to be decided by the trier of fact, in this case the jury, not the court before hand.

5

RELIEF REQUESTED

Plaintiff-Appellee respectfully requests that this Honorable Court affirm the decision of the trial court and remand the matter for trial.

Respectfully submitted,

SHERMAN & SHERMAN, P.C.

________________________________
Niccolas J. Grochowski (P63188)
Attorneys for Appellee/Plaintiff
30700 Telegraph Rd., Suite 3420
Bingham Farms, MI 48025-4590
(248) 540-3366 Telephone
(248) 540-5959 Fax
Dated: June 4, 2007

7

STATE OF MICHIGAN
IN THE 48^TH DISTRICT COURT
FOR THE COUNTY OF OAKLAND

PEOPLE OF THE CITY WEST BLOOMFIELD
Plaintiff,

Case No. 06-WB83588
Hon. Diane Dickow D’Agostini

V

KEVIN AARON LANDAU
Defendant.

___________________________________/
NICCOLAS J. GROCHOWSKI
Attorney for Plaintiff
30700 Telegraph Rd., Ste. 3420
Bingham Farms, MI 48025
248.540.3366

__________________

ARTHUR H. LANDAU (P16381)
Attorney for Defendant
29777 Telegraph Rd., Suite 2500
Southfield, MI 48034
248.948.0893
____________________________________/

 

MOTION TO CHALLENGE CHEMICAL TESTS

NOW COMES defendant, KEVIN A. LANDAU, through his attorney, ARTHUR H. LANDAU, and states in support of this motion:

MCR 6.201, requests the following information from the People:

1. The prosecution has the duty to establish a proper foundation for admission of Datamaster test results in a drunk driving case.
2. The prosecution has a duty to provide Defendant with any exculpatory evidence.
3. The arresting officer has a duty to provide Defendant with his chemical test rights.
4. The legal authority for the above-mentioned statements is set forth in the attached memorandum of law.

Defendant requests the court to

1. Order a hearing at which Defendant may challenge any chemical tests performed on him at the time of his drunk driving arrest. Defendant requests that the hearing be scheduled before trail on the following issues:
2. Whether the person performing the test was qualified to do so.
3. Whether the proper methods and procedures as promulgated by the Michigan State Police were followed in administering the test
4. The reliability of the testing device.
5. Order the testifying police officers to produce appropriate police Datamaster logs and Datamaster training manuals to substantiate their anticipated claim that the tests were performed properly and according to regulations.
6. Request the presence of the arresting officer(s) to determine if all statutory chemical test rights were afforded Defendant at the time of arrest.

Dated: January 8, 2007

________________________
Arthur H. Landau (P16381)
29777 Telegraph Rd. Suite 2500
Southfield, MI 48034
248.948.0893

 

STATE OF MICHIGAN
IN THE 48^TH DISTRICT COURT
FOR THE COUNTY OF OAKLAND

PEOPLE OF THE CITY OF WEST BLOOMFIELD
Plaintiff,

Case No. 06-WB83588
Hon. Diane Dickow D’Agostini

v

KEVIN AARON LANDAU
Defendant

__________________________________/
NICCOLAS J. GROCHOWSKI
Attorney for Plaintiff
30700 Telegraph Rd., Ste. 3420
Bingham Farms, MI 48025
248.540.3366
____________________

ARTHUR H. LANDAU (P16381)
Attorney for Defendant
29777 Telegraph Rd., Suite 2500
Southfield, MI 48034
248.948.0893
__________________________________/

 

MEMORANDUM OF LAW

People v, Krulikowski, 60 Mich App 28, 230 NW2d 290 (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 prosecutor must establish the qualifications of the Breathalyzer operator, the method or procedure followed in administering the test, and the reliability of the testing device. Although there are not yet any reported cases establishing the proper foundation for admitting Datamaster test results, the analysis should be the same.

Should the testimony at the requested hearing establish that these requirements were not followed, the drunk driving charge should be dismissed. To the accused, the chemical test is as much an instrument of exculpation as it is inculpation. If the police fail to administer the chemical test properly, a tremendous hardship results for Defendant. Because alcohol in the blood dissipates quickly, the accused is left with no way of gathering favorable evidence later if police negligence has prevented the administration of a proper chemical test. See Brady v State of Maryland, 373 US 83 (1963).

Should the testimony further establish that the arresting officer(s) failed to provide Defendant his chemical test rights, MCI.A 257.625a, MSA 9.2325(1), dismissal of all drunk driving charges is likewise required. People v Castle, 108 Mich App 353, 310 NW2d 379 (198); People ex rel Scodeller v Clem, 47 Mich App 517, 209 NW2d 689 (1973); People v Burton, 13 Mich App 203, 163 NW2d 823 (1968); see also People v Koval, 371 Mich 453, 124 NW2d 274 (1963).

Dated: January 11, 2007

________________________________
Arthur H. Landau (P16381)
29777 Telegraph Rd. Suite 2500
Southfield, MI 48034
248.948.0893

STATE             OF                    MICHIGAN

IN THE DISTRICT COURT FOR THE 48^TH JUDICIAL DISTRICT

PEOPLE OF THE TOWNSHIP OF WEST BLOOMFIELD,

Plaintiff,
CASE NO: 06WB83588
-vs-                                                                                                      Hon: Diane D’Agostini

KEVIN AARON LANDAU,

Defendant.

__________________________________________/
Sherman & Sherman, P.C.
BY: NICCOLAS J. GROCHOWSKI, ESQ. (P63188)
Township Prosecuting Attorney
30700 Telegraph Road, Suite 3420
Bingham Farms, MI 48025-4590
(248) 540-3366 TELEPHONE
(248) 540-5959 FAX

ARTHUR H. LANDAU, ESQ. (P16381)
Attorney for Defendant
29777 Telegraph Rd., Suite 2500
Southfield, MI 48035
(248) 948-0893 TELEPHONE

___________________________________________/

PEOPLE’S RESPONSE TO
DEFENDANT’S MOTION TO CHALLENGE CHEMICAL TESTS

NOW COMES Plaintiffs, the Township of West Bloomfield, by and through its Attorneys, SHERMAN & SHERMAN, P.C., by Niccolas J. Grochowski, Esq., (P63188) and in response to the Defendant’s Motion, states as follows:

1. Defendant’s Motion alleges various factual issues with regard to the administration of the Defendant’s DataMaster test.
2. Defendant’s Motion is a demand that the People establish a foundation for the admissibility of the DataMaster results before the actual trial is conducted in this case.
3. The People have no obligation to prove any elements of a crime prior to the trial. The effect would amount to having two trials, which is unnecessary and an unreasonable burden upon the People and this Honorable Court.
4. There is no right to have evidentiary hearing to determine if the People will be able to lay a foundation for the admission of evidence prior to the trail. The presiding Judge can only determine this at the actual trial by reviewing whether or not the people have laid the proper foundation through testimony.

 

WHEREFORE, the Prosecution respectfully requests this Honorable Court to deny the Defendant’s Motion and set the matter for trial.

Respectfully submitted,

SHERMAN & SHERMAN, P.C.

BY: ____________________________________
Niccolas J. Grochowski (P63188)
Township Prosecuting Attorney
30700  Telegraph Road, Suite 3420
Bingham Farms, MI 48025-4590
(248) 540-3366 Telephone

Dated: January 15, 2007