STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND
PEOPLE OF THE TOWNSHIP
OF WEST BLOOMFIELD
Plaintiff,
vs,
KEVIN AARON LANDAU,
Defendant,
________________________________/
NICCOLAS J. GROCHWOSKI. (P63188)
Attorney for Plaintiff
30700 Telegraph Road, Suite 3420
Bingham Farms, MI 48025-4590
(248) 540-3360
—————————————————–
ARTHUR H. LANDAU (P16381)
Attorney for Defendant
29777 Telegraph, Suite 2500
Southfield, MI 48034
(248) 948-0893
_________________________________/
MOTION FOR RECONSIDERATION
NOW COMES Defendant. KEVIN AARON LANDAU. By and through his attorney. ARTHUR H. LANDAU, and in support of his motion for reconsideration of this Court’s Order affirming the 48th District Court’s Order denying defendant an evidentiary hearing on the admissibility of Datamaster results and on the officer’s failure to advice Defendant of his chemical test rights, says as follows:
1. This is an OUIL case, presently pending in 48th District Court before Judge Diane Dickow D’Agostini.

2. 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.

3. The Honorable Rac Lee Chabot, Oakland County Circuit Court Judge, on April 2, 2007, ordered a stay of proceeding in 48th District Court until this appeal has been decided.

4. On April 18, 2007, Judge Chabot granted defendant’s application for leave to appeal.
5. On May 15, 2007, defendant filed a Brief with Judge Chabot an November 29, 2007. After oral argument. Judge Chabot denied defendant’s appeal of the decision of 48th District Court denying an evidentiary hearing.

6. As part of the Court’s decision of November 29, 2007, a 90 day stay of proceedings was granted to pursue an appeal.

7. At the hearing before this Court on November 29, 2007, Judge Chabot cited the case of People v Anstev, 475 Mich 436 (2006), as requiring this Court to deny Defendant’s appeal.

8. On January 24, 2008, the Court of Appeals issued the following Order, which is attached to this motion. “The Court orders that the application for leave to appeal is denied for failure to persuade the Court of the need for immediate appellate review.”

9. However, in People v Anstey, supra. At page 450, the Supreme Court held that when a Defendant argues before trial that he or she was deprived of a reasonable opportunity for an independent chemical test, the trial court must determine after an evidentiary hearing if necessary, whether defendant was deprived of this statutory right and if there was a violation to inform the jury of the violation and instruct the jury to determine the weight to give to it.

10. The Supreme Court in Anstey at page 450, held;
“The jury should be permitted to weigh the police officer’s wrongful conduct as well as the statutory right that the officer denied. When the defendant argues before trial that he or she was deprived of a reasonable opportunity for an independent chemical test, the trial court must determine, after an evidentiary hearing if necessary, whether the defendant was in fact deprived of this statutory right. If the court determines that a statutory violation occurred, then it is free, upon request of defense counsel, to inform the jury of this violation and instruct the jury that it may determine what weight to give to this fact. Such a jury instruction is an appropriate consequence for the violation of a mandatory statutory right to a reasonable opportunity for an independent chemical test because it will accord meaning to the right created test because it will accord meaning to the right created in subscription 6(d) without creating a remedy that the Legislature did not intend. A jury instruction will also presumably deter police officers from violating that right in the future.”
11. As such, Anstey, supra, addresses the need for an evidentiary hearing prior to trial to determine if a Defendant has been deprived of his statutory right to be advised that he has a reasonable opportunity for an independent chemical test by someone of his own choosing. Defendant has asserted from the beginning of this case that he was never advised of his chemical test rights by the police officer.

12. In addition, it appears that Anstey does not address whether an evidentiary hearing should be held in order to establish a proper foundation for admission of Datamaster results.

13. 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 arrest and whether he was advised of his chemical test rights. Without such an evidentiary hearing it is impossible for Defendant to properly prepare for trial.

14. The Court of Appeals in the instant case said it was premature to appeal at the present time, leaving in to Oakland County Circuit Court and 48th District Court to do justice. If Defendant is denied an evidentiary hearing on these issues prior to trial, he will have no reasonable opportunity to prepare for and have a fair trial in 48th District Court, and it will be too late for any meaningful appellate review.

15. Even this Court in its decision on November 29, 2007, denying Defendant’s request for an evidentiary hearing prior to trial in referring to Anstey, agrees with Defendant saying, “Sounds crazy to me but that’s the law.”

16. However, Anstey does provide Defendant with the right to an evidentiary hearing on these issues.

17. In the event this Honorable Court denies Defendant’s motion, defendant respectfully requests the opportunity to file an Application for Leave to Appeal to the Michigan Supreme Court, citing the Anstey case and respectfully requests a further stay of proceedings while Defendant exhausts his appellate remedies to the Michigan Supreme Court.

WHEREFORE, Defendant respectfully request that his motion be granted.

Respectfully submitted,

________________________________
Arthur H. Landau (P16381)
Attorney for Defendant
29777 Telegraph, Suite 2500
Southfield, MI 48034

Date: February 12, 2008