STATE OF MICHIGAN
6TH JUDICIAL CIRCUIT COURT FOR THE COUNTY OF OAKLAND
PEOPLE OF THE STATE OF MICHIGAN
v
KEVIN A. LANDAU,
Defendant.
______________________________________/
APPEAL
BEFORED THE HONORABLE RAE LEE CHABOT, CIRCUIT COURT JUDGE
Pontiac, Michigan – Thursday, November 29, 2007
APPEARANCES:
For the Plaintiff: NICCOLAS J. GROCHOWSKI (P63188)
30700 Telegraph Road, Suite 3420
Bingham Farms, MI 48025
(248) 540-3366
For the Defendant: ARTHUR H. LANDAU (P16381)
29777 Telegraph Road, Suite 2500
Southfield, MI 48034
(248) 948-0893
TRANSCRIBED BY: Theresa’s Transcription Service
Sally Fritz, CER #7594
P.O. Box 21067
Lansing, Michigan 48909-1067
Theresa’s Transcription Service, P.O. Box 21067
Lansing, Michigan 48909-1067, 517-882-0060
TABLE OF CONTENTS
WITNESSES: PLAINTIFF PAGE
None
WITNESSES: DEFENDANT
None
OTHER MATERIAL IN TRANSCRIPT:
None
EXHIBITS: INTRODUCED ADMITTED
None
Theresa’s Transcription Service, P.O. Box 21067
Lansing, Michigan 48909-1067, 517-882-0060
Pontiac, Michigan
Thursday, November 29, 2007 – 9: 41: 10 a.m.
THE CLERK: Calling case People versus Landau,
Docket number 07-DA8602-AR.
- GROCHOWSKI: Morning, your Honor.
Niccolas Grochowski for the People of West Bloomfield.
- LANDAU: And good morning your Honor. For the record my name is Arthur Landau. I’m counsel for the defendant in this matter.
THE COURT: Okay.
- LANDAU: Today’s scheduled for oral argument. I am principally relying upon the brief that I have submitted to the court.
THE COURT: Yes.
- LANDAU: If the court –
THE COURT: I got those.
- LANDAU: — has any questions I’d be most happy to go ahead and answer them but I would like to reiterate the fact that a motion for chemical tests and to challenge the chemical test and the advice of chemical test rights was filed in 48th District Court. As your Honor is aware this is an OUIL case and we are contesting, number one, the fact that the arresting officer did not advise the defendant of his chemical test rights as mandated by MCL 257.625(a) and (b). The defendant contested he never was advised of his chemical test rights and therefore was not at liberty to go ahead and exercise any of those rights.
People v Castle indicates that if those chemical test rights were not advised of, then the case must be dismissed. And that’s 108 Mich App 353 (1981).
In addition, your Honor, we are contesting the authenticity of the DataMaster results. I believe that we have to have an evidentiary hearing prior to trial to determine whether or not the DataMaster was properly administered, namely that the operator was properly qualified, that the methods and procedures used in administering the test were in accordance with the Michigan State Police manual for doing that, that a reasonable time elapsed between the time of arrest and the time of giving the chemical test, and the reliability of the DataMaster itself.
We don’t know whether or not, in fact, it was properly administered and whether or not the test was, in fact, a reliable DataMaster result. And in order for the chemical test results to be admissible in evidence those four foundational requirements under People v Krulikowski, that’s 60 Mich App 28 (1975) must first be determined. And under MCLA 257.625(a) and (b) it mandates that a defendant be given his chemical test rights at the time the test is being given to him.
And MCLA 257.625(a) and (b) says, I’m quoting to begin with that, “the arresting officer must advise a person being arrested of — for OUIL of the following test rights.” And it says, “shall be advised,” which is reiterated by the case law in People v Castle and so on, that number one, and I’m quoting, “that if he or she takes a chemical test of his or her blood, urine or breath administered at the request of a peace officer, he or she has the right to demand that a person of his or her own choosing administer one of the chemical tests.”
And two, “he has to be advised that the results of the test are admissible in the judicial proceeding as provided under the act,” obviously together with other admissible evidence. These rights were not given to the defendant. He asserts they were not given.
An informal discussing with the arresting officer that I had, he didn’t know whether he gave them to him or not. And that’s what he said to me. He said, I don’t know if I gave them to him or not. And I think we have to have an evidentiary hearing because an evidentiary hearing on both of these issues could very well be dispositive of the case may never go to trial.
And, and what I’m asking for, your Honor, is that if we’re not allowed to have an evidentiary hearing of this kind to determine these things, then if we go to trial it’s too late. It’s simply too late. These, these are critical items in the defendant’s defense in order to either dispose of the case or properly prepare for trial. And a trial is just simply too late.
And very frankly, your Honor, in 48th District Court before this Judge I don’t think I’m going to get a fair trial. And I’ve never said that before in my entire legal career but I don’t think I can get a fair trial before this Judge. And I, I would ask the court to allow the evidentiary hearing because it could very well be dispositive of the case. It’s something comparable to like a – in a felony case where you’re contesting the legality of the search and seizure and you have to have an evidentiary hearing to determine whether or not, in fact, it was legal, whether or not all proper procedures were followed in the arrest and in the seizure because that could very well be dispositive of the case.
Or in a Walker hearing where somebody is contesting the voluntariness of his confession, the same thing. If the confession is — was involuntary, then obviously the confession is going be suppressed, that even could be dispositive of the case. Or at least will not allow the admission of evidence that is otherwise inadmissible.
And there’s not much of a difference in a case like this. This could be dispositive of the case and what we’re asking for, your Honor, is a hearing prior to trial because we are contending that defendant was not advised of his chemical test rights, that an informal conference with the officer — he indicated he doesn’t know if he advised him of his chemical test rights at that time.
Also, there was a tape that was taken and for some mysterious reason – I believe a tape was made of the arrest itself, which really doesn’t show much. And then they go into the station and then when he administers the test and is talking to the defendant, that tape is mysteriously gone. It’s a blank. All we see is a wall. And, your Honor, why that is, I can’t answer it. I can conjecture but I’d much rather not conjecture.
And what I am saying, your Honor, is this is a critical part of, of the defendant’s case in this matter. I would ask that the 48th District Court be reversed and that there be an evidentiary hearing.
Also, your Honor, if the court does see fit to grant our motion I would ask that the court retain jurisdiction of the case once the hearing is held because, again, as of — or, or remand it to a different District Court for a hearing because I don’t think I can get fair hearing before this Judge. Thank you.
THE COURT: Okay. Thank you.
- GROCHOWSKI: Thank you, your Honor. Your Honor, as you know on an appeal we’re limited to the review of the brief limited record that was created in this case and the motion that was filed by defense counsel in this case. If we review the motion, and with all due respect to defense counsel, his brief goes way beyond the scope of his original motion and the scope of the brief record created at the District Court, your Honor. If we take a look at his brief motion he basically, in his first paragraph, well, even before that cites a discovery rule 6.201 that, that really doesn’t have anything to do with the motion, it’s a discovery rule applicable to felonies only and specifically not applicable to misdemeanor cases as pursuant to Michigan Supreme Court Administrative order 1993-03. So I found that kind of peculiar with regard to the beginning of that motion.
He indicates that in his motion the prosecution has a duty to establish a proper foundation for admission of the DataMaster test results. I agree that we have a duty to lay a proper foundation at trial but not beforehand, your Honor.
What he’s asking the court to order is that we basically have a preliminary exam to determine whether or not the People can lay a foundation for admission of evidence, which we believe in – believe we’d be able to do, no problem, but that’s – by giving a blank statement that, hey, they have to prove it at trial so I want them to approve it ahead of time. Doesn’t necessarily raise a question of law for a Judge to determine in a case.
I’m not here saying today or claiming that he’s not entitled to an evidentiary hearing, I’m saying that in the form and fashion that he presented his arguments to the court in this case, he’s not entitled to an evidentiary hearing. I’ve never heard of somebody saying, well, your Honor, he has to, he has to admit that evidence into trial so I want you to determine whether it’s admissible or not. He’s not specifically challenged any particular rule violation. He has today, your Honor, he claims that the officer — today, he claims that the officer never read him chemical test rights. That was never brought up in the original motion nor do I believe it was brought up on the Record at the original court hearing where the Judge denied his request for the evidentiary hearing.
In number two he says the prosecution has a duty to provide defendant with exculpatory evidence. Your Honor, we happily provided the defense counsel every single thing we have in our possession with regard to this case, including going above and beyond that DataMaster logs, the defendant’s advice of rights, a copy of which was given to him at the time, and everything else which would normally come with that.
In number three, the arresting officer has the duty to provide the defendant with his chemical test rights. I’m not sure what he was claiming by that. Whether he’s claiming as he is today that they were never read to him. I read that as saying, we’re obligated to provide to him a copy of it, which we have done, your Honor.
And then he goes into again, these, these – the administrative rules for admission of the DataMaster test. And, quite frankly, he’s not challenged anything in the lower court that would lead a Judge to waste the time and have an evidentiary hearing. And some of those claims are no longer legitimate claims with regard to, lets say it was given within a reasonable time frame. As your Honor probably well knows, there’s recent court case law that basically says that that’s no longer necessarily a requirement. It goes to weight but it doesn’t necessarily go to the admissibility of the DataMaster results.
And more frankly, after post-wager cases, really the only requirement to satisfy a simple relevance for admission of the DataMaster results under MRE 401 and 402. So I find it quite odd that we’re here today to basically prove my case before the trial. It – the defendant has absolutely every right at trial to object to the admission of the DataMaster results. Every case that talks about admitting DataMaster results is a challenge after the trial. The attorney during the trial objects to the admission for lack of laying a foundation, relevance and reliability and then it’s appealed to the higher court. But I’ve not quite heard — if your Honor was to rule this way, it would essentially indicate that in every misdemeanor drinking and driving case, that we would have an obligation such as a preliminary exam to prove that the DataMaster results are admissible.
I think, and again your Honor, I think it’s the form in which it was presented to the District Court in this case that does not lend itself to an evidentiary hearing in this matter. This is somewhat the first time I’ve heard – and when I read his brief, which was not discussed at the lower court level, that the defendant in this case is claiming the officer did not read him his DataMaster – or DataMaster test re – or chemical test rights. Which, in the report it clearly states he did. Maybe at the time he had this informal conversation he just didn’t recall because he hadn’t reviewed his report. But he certainly indicated to it in the report. We certainly have the hard copy at the police department, your Honor. Defense counsel was provided with that copy. So I see it as a waste of the court’s time, your Honor, with regard to how it was presented.
- LANDAU: Your Honor, I am assuming that – well, strike that. If counsel would have read the motion hearing, every single item that I brought up in my brief I argued at that hearing. I have a copy of that motion here and every single thing in my brief was argued at that hearing. He obviously has not read the transcript of this motion because if he did, he would have seen that all of the arguments contained in my brief were contained in this motion and I argued the DataMaster and lack of advice of chemical rights at length in this motion on February 12th. So to go ahead and assert that this was not brought up at the motion hearing is absolutely wrong.
Everything in this, in this transcript and in the brief is argued at that motion. So where he comes up with what he’s saying, I don’t know.
But in addition, your Honor, the arresting officer indicated to me that the following morning after the arrest – the arrest was at 12:22 a.m., the following morning after the arrest is – he recalls giving him his advice of chemical test rights. The following morning. That’s eight hours later. That’s way beyond the time that a person can exercise the rights to which he’s entitled under MCL 257.625(a) and (b).
So, counsel is, is mistaken relative to what has transpired, relative to what was argued at that motion, because I argued these issues at length on February 12th at that motion. Thank you, your Honor.
THE COURT: Okay. This is defendant’s appeal on leave granted from the 48th District Court. Defendant is charged with OUIL in the 48th District. Defendant filed a motion seeking an evidentiary hearing prior to the trail in order to challenge the admissibility of the DataMaster test results. The trial court denied the request for an evidentiary hearing and indicated a decision in the admission of the results would be made at the time of trial.
Defendant filed an application for leave to appeal to this court, which was granted. The prosecution has filed a response to the appeal note – indicating there is nothing to support defendant’s contention that an evidentiary hearing is mandated prior to trial.
Defendant first alleges the prosecution must lay the proper foundation before the DataMaster results can be introduced into evidence. This is a correct statement of the law and is set forth in People v Krulikowski, 60 Mich App 28, a (1975) case. However, there is nothing presented to indicate the prosecution must lay the proper foundation prior to trial.
I and my legal staff were unable to locate any support for that position in independent research, not just relying on the briefs.
Thus, defendant’s claim of error in the trial court’s refusal to grant an evidentiary hearing is without merit.
Defendant also argues the trial court erred in not conducting an evidentiary hearing on a second basis. Defendant alleges the arresting officer failed to read his chemical test rights to him thus depriving him of the right to seek an independent blood alcohol test after submitting to the DataMaster. Defendant contends that if the testimony at the hearing shows the officer failed to administer the chemical test rights, he’s entitled to a dismissal of the charge.
However, the Michigan Supreme Court held in People v Anstay (ph), 476 Mich 436, a (2006) case, that the appropriate remedy for failure to provide the chemical test rights is not dismissal of the charges but rather a jury instruction that the defendant’s right was violated and the jury can determine how much significance to attach to that fact.
Thus, the denial of an evidentiary hearing prior to the trial to determine the admissibility of the DataMaster results is not reversible error.
This court is going to affirm the District Court.
- LANDAU: Your Honor —
THE COURT: Sounds crazy to me too but that’s the law.
- LANDAU: Your Honor, could we have a stay while we appeal it to the Court of Appeals?
- GROCHOWSKI: Your Honor, you know, I respect his right to, to explore his issues even though I disagree with his position.
THE COURT: Right.
- GROCHOWSKI: However, this case is now getting extremely old. I forget when the offense date was. It’s, it’s coming up on almost a year now I believe, if not more than a year, and quite frankly in a misdemeanor case, trying a case over a year old becomes extremely difficult. So I’d ask the court to deny that request so we can actually get to the District Court and try the matter and be done with it. So based on the age of the case, I would object.
THE COURT: what kind of stay were you asking for?
- LANDAU: Pardon me?
THE COURT: What kind of stay are you asking for, how long?
- LANDAU: I’m asking for a stay to file and application for leave to appeal, your Honor, to the Court of Appeals. I would ask – I could have that application into the Court of Appeals, your Honor, within say three weeks. The Court of Appeals usually takes about two – two months, something like that, to make decisions on the application for leave. So I would ask your Honor for a three month stay.
- GROCHOWSKI: Again, with all due respect to Mr. Landau, unfortunately I think he’s a little personally involved with this moreso than any other attorney would be.
THE COURT: That’s what happens at District Court.
- GROCHOWSKI: Well, with regard to who the defendant is in this case.
THE COURT: I understand.
- GROCHOWSKI: And I quite frankly see this as maybe an attempt, and I apologize if I assume wrong, but it — I almost view this as a vexatious appeal to somehow delay the proceedings in order to somehow gain whatever advantage may be gained by doing so. So again, I have to object to that, your Honor. That, in my clerkship with the Court of Appeals it’s going to take several months before they get to this and –
- LANDAU: That isn’t true. I do a lot of appellate work, your Honor.
THE COURT: Okay. Okay. I’ll grant a 90 day stay.
- LANDAU: Thank you, your Honor.
THE COURT: Thank you.
- GROCHOWSKI: Should I prepare an order, your Honor?
THE COURT: Yes.
(At 10:02:05 a.m., hearing concluded)
Theresa’s Transcription Service, P.O. Box 21067
Lansing, Michigan 48909-1067, 517-882-0060
CERTIFICATION
This is to certify that the attached electronically recorded proceeding, consisting off eighteen (18) pages, before the 6th Judicial Circuit Court, Oakland County in the matter of:
PEOPLE OF THE STATE OF MICHIGAN
v
KEVIN A. LANDAU
_______________________________/
Location: Circuit Court
Date: Thursday, November 29, 2007
was held as herein appeared and that this is testimony from the original transcript of the electronic recording thereof, to the best of my ability.
I further state that I assume no responsibility for any events that occurred during the above proceedings or any inaudible responses by any party or parties that are not discernible on the electronic recording of the proceedings.
__________________________
Sally Fritz, CER #7594
Certified Electronic Recorder
Dated: December 27, 2007
Theresa’s Transcription Service, P.O. Box 21067
Lansing, Michigan 48909-1067, 517-882-0060