I’m looking in my crystal ball this evening preparing for a case set for pre-trial tomorrow morning. This is a case where a motorist was arrested for violating Michigan’s “any amount” law, which prohibits driving with any amount of marijuana in his or her system. The driver is a Medical Marijuana Card holder who had not consumed any marijuana in several hours. The Medical Marijuana Act requires a police officer to determine that an MMMA card holder is “under the influence” as opposed to merely showing a presence of the drug.
I’ve just completed my review of the videos and police reports, and I predict a big, huge dismissal and subsequent § 1983 case against the Northville Township Police Department and the arresting officer, Jeremy Huston. The facts of this case are outrageous from start to finish.
After my client, NW, hired me professing her innocence, we revoked her consent to test her blood. Based upon a preliminary review of the facts and circumstances, this certainly appeared merited, and we notified the various prosecutors and parties that NW was revoking her consent for further testing. We simply demanded that, if they had probable cause, the various state government actors should go and obtain a search warrant. This is not unreasonable under the 4th Amendment.
Dr. Michele Glinn, head of the Michigan State Police (“MSP”) Toxicology Unit, sent me a nice letter explaining that the MSP do not require a warrant to test a person’s blood. This is contrary to all prevailing law.
The prosecutor wrote me back, and he also explained that Ms. NW has no right to contest the testing of her blood, even in the absence of a warrant. Searches in the absence of a warrant are unreasonable per se.
Heck, maybe I’m just full of it, right? Maybe NW was so clearly intoxicated that the officer had probable cause. Maybe that whole search warrant thing is just a legal formality. But I seem to recall the US Supreme Court holding something akin to:
“We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. . . . We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.”
Chimel v California, 395 US 752, 761 (1969). [Emphasis added.]
Well folks, I have the patrol car video in my possession, and it shows a few things that clearly conflict with the police report.
First off, Northville Township Police Officer Jeremy Huston stopped NW’s car for no reason. He claimed that she was driving slow, 10-15 mph under the speed limit. It did not appear that she was driving slowly, but it is not against the law to drive slow. In People v Parisi, 393 Mich 31 (1974), the Michigan Supreme Court held that driving slowly was not a crime, holding “the . . . reason offered [to justify the traffic stop] was that the car was going 25 mph in a 45 mph zone. Given the absence of a minimum speed requirement, erratic driving, interference with traffic or some other reason of substance, we must conclude that this alone was not sufficient to warrant a stop.” See also, People v Roache, 237 Mich 215 (1927) [Driving slowly and looking at the police officer would not lead “‘a prudent and careful person, having due regard for the rights of others’ to have reasonable and probable cause to believe that liquor was being unlawfully transported in defendant’s automobile”.]
Officer Huston also claims that NW crossed the centerline twice during his brief recording. Officer Huston may have crossed the centerline, but NW remained in her lane, safely operating her motor vehicle during the entire duration of the video.
After reviewing the video, every common citizen would conclude that Police Officer Jeremy Huston lacks a “due regard for the rights of others.” But again… I’m a defense lawyer. Maybe Officer Huston saw something I cannot see.
Well, the real proof is in the singular field sobriety test employed by Officer Huston to make his arrest decision. Officers require probable cause to make an arrest. It is another 4th Amendment protection. Officer Huston employed the horizontal gaze nystagmus (HGN) test to formulate probable cause. He reports all clues, albeit improperly, and the video tape reveals that he recklessly performed this test. Quite frankly, Officer Huston could have never detected the clues he reported finding, because he never even checked for them. The HGN test was more akin to waiving a magic finger before NW’s face. This eye test requires roughly a minute to perform and fourteen passes before the suspect’s eyes. He completed the evaluation in 15 seconds and only 1 and 1/2 passes!
If a person is under the influence of depressants (including alcohol), inhalants, or PCP, the person will exhibit “nystagmus.” Nystagmus is a jerking in the eyes. According to Officer Huston, NW exhibited jerking eyes.
According to the federal government, drug recognition experts, and even the manual that Officer Huston trained out of during his brief field sobriety testing seminar, marijuana does not cause nystagmus. As I have previously written, “Traditionally, Michigan police officers have received extremely poor drugged driving training, and many officers are chagrined to discover that marijuana does manifest in signs of impairment that they are trained to detect. For example, the horizontal gaze nystagmus test (HGN), a favored field sobriety test for alcohol intoxication, should result in no clues of impairment.” http://blog.owidefenselaw.com/?p=194 Oops!
Oh, as a final note: Illegally performed blood testing has so far revealed that NW had NOTHING in her system.
If you think that people cannot be unlawfully stopped, unlawfully arrested and unlawfully charged with driving drunk, you are absolutely wrong. Just check out the story of Larry Bishop from July 2010. http://www.duimaze.com/dui_testimonials.html