Articles Posted in Traffic

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m-59 pciture

Unfortunately, a rear end automobile accident is not always avoidable. Rear end accidents can occur because of slippery/icy roads, distracted driving (texting) or inattentiveness to existing traffic conditions.  Traffic tickets issued for rear end accidents are one of the most common traffic tickets that we see every day on our Macomb County District Court dockets. Anyone that drives regularly on M-59/Hall Road, on either the Sterling Heights side, or the Utica/Macomb Township and Shelby Township side, will probably witness a rear end accident at some point in time.

Crain’s Business Detroit, May 3, 2015, had this say about the situation on M-59/Hall Road:  “Slogging through stop-and-go traffic on northern Macomb County’s main east-west thoroughfare — four lanes deep in exhaust and exhaustion — it’s easy to understand why some locals have dubbed it “Hell Road.”

A basic premise in Michigan is that a person is required to have control of a motor vehicle at all times. For this reason, a person that is involved in a rear end accident can expect to get hit with a ticket known as “fail to stop within assured clear distance” (abbreviated on the ticket as FTSACD). The offense of FTSACD is found in the Michigan Traffic Offense Code at MCL 257.627(1) and is a civil infraction which carries 2 points on one’s driving record. MCL 257.627 is the statute that covers FTSACD and also the traffic violation for failing to use due care and caution. The statute reads as follows:

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COP CAR
Since 2003, the State of Michigan collects Driver Responsibility Fees against driver’s when excessive points are abstracted on a person’s driving record (Category 1 Offenses). Fees are also collected for specific offenses, regardless of points (Category 2 Offenses). Drunk driving is an example of an offense categorized under Category 2.  For example, a person who is convicted for Operating While Intoxicated is required to pay $1,000.00 per year for 2 years for a total of $2,000.00. A conviction for the lower drinking and driving offense of “impaired driving” requires $500.00 per year for 2 years in fees.

These fees have been called a “death penalty for drivers” by State Rep. Joe Haveman (R-Holland). Haveman favors legislation which would phase out all driver responsibility fees and he has called the law a “cash grab” for the state at the expense of motorists, who can lose their license for non-payment.

Traffic tickets are handled in the district Courts. In the district courts where we appear frequently, including : 37th District (Warren/Centerline), 38th District (Eastpointe), 39th District (Roseville/Fraser), 40th District (St. Clair Shores), 41-A District (Sterling Heights, Shelby Township, Macomb Township, Utica), 41-B District (Clinton Township, Harrison Township, Mount Clemens), 42-1 District(Romeo/Washington Township), 42-2 District (New Baltimore/Chesterfield Township), 72nd District (Marine City/Port Huron Divisions), 44th District (Royal Oak), many individuals are driving without a license and without insurance. They just cannot afford all of costs associated with traffic tickets and Driver Responsibility Fees.

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hot pursuit.jpgIn the second part of our 3 part series on searches, this blog will discuss the rules governing automobile searches. The following needs to be considered when a motorist is pulled over and subsequently searched;

Was the stop a traffic stop or a stop based on suspicion of criminal activity?
Was any search justified?
Was the scope of the search justified?

As alluded to in our prior post, being in an automobile affords individuals much less 4th Amendment protection than being in their home. Police can search a car without a warrant under the ‘automobile exception’. Such searches must be supported by probable cause. According to case law, the general population doesn’t have a reasonable expectation of privacy within their automobile because it is operated upon public roadways and is highly regulated by the government. Thus, automobiles upon public roadways are subject to a much lower expectation of privacy than a private home – other drivers, and police officers, can see directly into the majority of traveling cars. It should also be noted warrantless searches may be conducted pursuant to a valid inventory search after the seizure of an automobile.

Police can stop a motorist either for violation of the motor vehicle code or based on the hunch of criminal activity. Where the officer actually observes a traffic violation they are allowed to make a stop. However, it is often a traffic stop that allows the police to make an arrest for a more serious crime. The police can run a background check during a traffic stop, if that check shows outstanding warrants the police may then arrest that individual and search their vehicle. Moreover, the police do not need a warrant in order to run a license check of a vehicle.

Police may expand the scope from a brief detention to issue a traffic ticket where there is a fair probability of contraband/evidence in the vehicle based on the totality of the circumstances. If a law enforcement official see’s, say for example a bloodied weapon, in plain sight during a traffic stop they may immediately seize that weapon. Another scenario, one that regularly plays out in this office, is where an officer smells alcohol or marijuana during a traffic stop. The smell of marijuana justifies a search of the motor vehicle. Similarly the odor of intoxicants allows the police to conduct roadside sobriety tests.

Where there is no traffic violation, law enforcement may make an investigative stop where they believe criminal activity is taking place. Where there is probable cause that a crime is being committed police may stop an automobile without a warrant (for example where a car is described as leaving the scene of a recently committed crime). Probable cause can be premised on as little as an anonymous tip. Depending what the probable cause is for (meaning a stolen vehicle versus a bag of drugs) will dictate the initial scope of the permissible search. Practically speaking, the police will likely find a way to search the entire car through one of the warrant exceptions. Further, probable cause will typically give pretty wide latitude in terms of what portions of the car can be searched absent a warrant. Police can, for example, open a container if they have reason to believe there is evidence of a crime in that container. However, the search needs to be somewhat logical. That’s to say that police likely do not have the authority to search a purse if they stop an automobile under suspicion that it’s harboring illegal immigrants.

Beneath is some case law regarding automobile searches.

– The police may not search an automobile if the stop was solely for the purpose of seeing the motorist’s license.
– The police may search a car incident to a custodial arrest.
– The police may not search a car where a ticket is issued for a traffic offense provided that’s the reason the car was stopped.
– Police may search a car made at the end of a hot pursuit of a crime scene.
– Police may search a car believed to be stolen.
– The police may allow a dog to sniff an automobile during a legitimate traffic stop.
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interlock ignition device.jpg

In Michigan, a common sanction by both the courts and the Secretary of State is the required installation of an interlock ignition device on the defendant’s (or petitioner’s) automobile. Colloquially referred to as a ‘blow and go’, these devices can be a tremendous headache for those required to install them. In our experience, there are a number of situations where these devices are compelled to be installed on our clients’ vehicles. These scenarios include;

– A ‘superdrunk’ conviction,
– Certain drunk driving convictions with aggravating circumstances,
– As a mandatory condition of a restricted license upon a successful license appeal,
– And certain crimes which may have resulted from an underlying drinking problem.

1) What is an interlock ignition device?

The cell-phone sized device is installed so it connects to an automobile’s ignition system, usually inside of the glove compartment. After installation, the driver is must blow into the device before the car will start.

2) Where can these devices be installed and how much do they cost?

Many locations in Southeast Michigan offer install services for the ignition interlock device:

American Interlock 800.580.0504 Michigan Interlock, LLC 888.786.7384 National Interlock Service 888.294.7002
New Horizon Interlock, Inc 800.597.5054 Smart Start Michigan 888.234.0198
Prices vary from company to company, but range from $50 to $200, based upon the make and model of the car. The device also holds a monthly rental fee, which can be as high as $100.00.

3) How do these devices work?

According to igntioninterlockdevice.org, the driver blows about 1.5 litres of air into the device, which is located on the car’s dashboard. Drivers can also be subjected to “rolling tests”, which require the driver to use the device once the car is moving. If the driver fails one of these “rolling tests” the device sounds a warning, which may consist of flashing lights or honking horn and will sound until the ignition is turned off (the ignition will not automatically shut off while moving). Each device contains a computer chip, which requires monthly downloads. The information is sent to the overseeing court and analyzed for blood alcohol content levels as well as attempts at tampering with the device.

4) When required by the State in a driver’s license restoration case, what will result in a violation?

The State of Michigan has divided violations into two main categories:

Minor Violations

-After the trial period, the driver fails three start-up tests (car will not start)
-If the driver fails to have the device serviced within 7 days of his/her scheduled date
Major Violations

-Failure of a “rolling test”, which is either failing to take the test when prompted or the result is greater than 0.25% and a subsequent sample is greater than 0.25%
-An arrest or conviction for drunk/drugged driving -Tampering with the Blood Alcohol Ignition Interlocking Device -Circumventing the device, by allowing a passenger to blow into the device -Three minor violations within the monitoring time (required time for device to be installed)
-Removing the device without having it re-installed within 7 days (unless Secretary of State approves)
-Operating a vehicle without a properly installed device
In the State of Michigan, a minor violation will result in a three-month extension before another driving license appeal can be requested. Major violations will cause the original driver’s license revocation to be immediately reinstated, which means the driver will no longer be able to operate any vehicle, even with an ignition interlock device installed.

5) Are these devices reliable?

Despite widespread implementation of ignition interlock devices many have doubts as to their reliability. Significant issues arise out of false positive results, which could be caused be a number of daily-use products. They include mouthwash (because of its minimal alcohol content), some medicines, and even some beverages.
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New-Baltimore-42nd-District-Div-2

The 42-2 District Court located at 35071 23 Mile Road, New Baltimore, MI  48065.  Judge William H. Hackel III is the presiding Judge for the Court.

The Court’s physical jurisdiction encompasses the City of New Baltimore, Chesterfield Township, New Haven and Lenox Township. The water-front City of New Baltimore is located in the heart of Anchor Bay.

The Police Agencies of the 42-2 District Court

There are several police agencies within the 42-2 District Court jurisdiction: Chesterfield Township Police, New Baltimore Police, Michigan State Police (I-94) and the Macomb County Sheriff’s Department. Because of its coastline, the presence of the Michigan Department of Natural Resources and United States Coast Guard is also necessitated in this region.

Chesterfield Township Gets More DUI Cases, Retail Fraud and Traffic Tickets 

chesterfield-township

Chesterfield Township generates the most activity for the 42-2 District Court based upon its geographic size, density, major retail centers (see image above) and vehicular traffic. This is true for all matters heard in the 42-2 District Court such as drunk driving cases, criminal cases and traffic tickets. In 2016, Chesterfield Township administered 166 breath or blood tests in connection with operating while intoxicated arrests compared to 43 tests administered in the City of New Baltimore.

Criminal Cases in the 42-2 District Courts: Provisions of Law to Get Dismissals Available!

Our firm has represented clients charged with just about every imaginable misdemeanor and  felony crime in the 42-2  District Court. The following is list of some of the most prevalent cases that we regularly see on the 42-2 District Court’s docket:

 Judge William Hackel III has been on the bench at the 42-2 District Court since 2009. The 42-2 District is a conservative district.  Judge Hackel runs a tight ship and his Court is run very efficiently.  Judge Hackel does have certain preferences for his Courtroom. One of his preferences is appropriate attire and he will compliment an individual that wears a shirt and tie when appearing before him. He also likes to see the presence of family members in the courtroom. Individuals that are placed on probation are expected to abide by ‘house rules’ and Judge Hackel will advise family members to contact him if there is incorrigibility at home.

Getting out on bond, bond conditions: If you are arrested or arraigned on a criminal matter in the 42-2 District Court, you will appear either before a magistrate or judge.  Insofar as possible, it is always advisable to have an attorney present for arraignment purposes. An attorney can make a considerable difference at an arraignment hearing by advocating for a personal bond (where no money needs to be posted) or a for a low cash/10% bond arrangement. Judge Hackel and his magistrate will listen to an attorney’s remarks regarding bond which can save potentially thousands of dollars that a bondsman would otherwise take.  In addition to the cash component of bond, the Court can also impose bond conditions upon a person’s release from jail. Drug and alcohol testing are common bond conditions for those charged with any crime involving drugs or alcohol. A ‘no-contact order‘ is assured in assault cases, domestic violence, sex crimes and all other crimes involving a victim. In retail fraud cases, the accused party may be instructed to refrain from entering the establishment where the alleged shoplifting occurred. A motion for a hearing can always be filed to modify bond conditions, remove a no-contact order or eliminate travel restrictions.

Misdemeanor or Felony Classification: In Michigan, the district courts have full jurisdiction to dispose of misdemeanors through sentencing. A misdemeanor is classified as an offense that carries up to 1 year in jail.  Felony cases are another matter. A felony is classified as a crime that can carry more than 1 year in jail. A felony case is initiated in the district court for the arraignment, probable cause conference and preliminary examination. A felony that is not resolved in the district court will be moved to the circuit court for further proceedings. In certain cases, a felony can be reduced to a misdemeanor and can remain in the district court. Accomplishing reduction of a felony to a misdemeanor, thus avoiding a felony conviction, is considered a huge victory.

The outcome of a criminal case in the 42-2 District Courts, as well as other Macomb County District Courts, is dependent upon many components.  The most significant factors that can have a bearing on the disposition of a case are:

  • Prior criminal history of the accused party.
  • Cooperation with the police.
  • Whether another party was injured, or property was damaged.
  • The ability of the accused party to provide restitution for damages to the injured party.
  • Whether the offense is a ‘policy case’ (crimes against senior citizens, children).

The 42-2 District Court presides over a diverse range of criminal cases which can be attributed to its distinct, shopping, suburban, rural and waterfront areas. In our experience, criminal cases can be resolved favorably at the 42-2 District Court. All of these special provisions of law are possible in the 42-2 District Court which can result in a dismissal of a criminal matter:

  • HYTA for youthful offenders (age 17 to 23)
  •  MCL 333.7411 for first time drug offenders
  • MCL 769.a for domestic violence.
  • Delayed Sentence or Deferral

Even individuals that have a prior criminal record will be given respect and consideration for plea deals to get a dismissal under certain circumstances.

Drunk Driving Cases in the 42-2 District Court

As I previously mentioned, Chesterfield Township nets more DUI cases than any other municipality within the 42-2 District Court. The City of New Baltimore comes in second place.

For most first time drinking and driving offenders, jail is not likely absent aggravating circumstances. A person without any prior drinking and driving offenses can expect to get an OWI reduced to ‘operating while impaired’ in the 42-2 District. It is extremely difficult and rare, but not impossible, to get a drinking and driving offense reduced to a non-criminal offense. If a person is charged with Super DUI (BAC .17 or greater) a deviation may need to be filed to get a plea bargain to a lower offense.

1st offense drinking and driving: Judge Hackel will consider non-reporting probation for a period of less than 1 year for first time offenders. In addition to probation, a person convicted for a first drinking and driving offense (operating while impaired) is looking at:

  • Probation for 1 year or less
  • Fines and costs approximately $1,200.00
  • Restricted license for 90 days
  • Attend an alcohol or substance abuse program
  • Possible drug testing, alcohol testing, AA meetings
  • 4 points on driving record

There are other mandatory and discretionary sanctions associated with a drinking and driving conviction including: driver responsibility fees, probation oversight expenses and vehicle immobilization. The Court can also order installation of an ignition interlock system on any vehicle driven by a person convicted of a drinking and driving offense.

A repeat drinking and driving offender may be looking at a longer period of probation, up to 2 years, with the possibility of some jail time.  There are many steps that we can recommend to those charged with a repeat drinking and offense offense to reduce the likelihood of incarceration in almost every Macomb County District Court.

The 42-2 District Court Probation Department: 35071 23 Mile Road, New Baltimore, MI  48065

The 42-2 District Court has its own probation department located in the courthouse.

It is within the judge’s discretion whether to place an individual on probation after being convicted of a criminal or drunk driving offense. In many cases that qualify as isolated incidents, we may be able to convince the judge that probation, also known as community supervision, is not necessary. When probation is imposed, the judge may require reporting or non-reporting probation.  The maximum period of probation that can be imposed in the district courts is 2 years. However, our experience is that probation is rarely imposed for more than 1 year for most first-time offenders and Judge Hackel will often consider less than 1 year for most first offenders.

Traffic Violations in the 42-2 District Court: Reduced to Avoid Points and Record of any Conviction!

Several police agencies have an active presence monitoring the activity of vehicular traffic within the jurisdiction of the 42-2 District Court.  Like other district courts in Macomb County, I would say that traffic tickets are on the top of the list of types of cases that are litigated at the 42-2 District Court. When resolving a traffic matter in the 42-2 District Court, we are often able to negotiate a reduction or avoid points. A substantial reduction in a traffic ticket occurs when it is reduced to an offense such as impeding traffic or double parking. A traffic ticket that is reduced to impeding traffic or double parking does not carry any points and will never appear on a person’s driving record! We are also able to get favorable results for individuals charged with misdemeanor traffic offenses such as driving while suspended, reckless driving and leaving the scene of an accident. Unfortunately, most individuals that receive a traffic ticket do not hire a lawyer and wind up with a record and points that will have an impact on insurance premiums for several years. The path of least resistance, paying the ticket, can be much costlier in the long run.

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