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Prosecute the Crime; Sentence the Defendant

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Volume 12, Issue 2 June 2012 Prosecute the Crime; Sentence the Defendant By: Erin Inman Prosecute the crime; Sentence the person. This nugget of wisdom was handed down to me from one of my mentors when
Volume 12, Issue 2 June 2012 Prosecute the Crime; Sentence the Defendant By: Erin Inman Prosecute the crime; Sentence the person. This nugget of wisdom was handed down to me from one of my mentors when I was a new prosecutor. It has become my personal mission statement and guided me throughout my career. This mission statement is a simple idea, yet it encompasses the complex responsibilities involved in being a good prosecutor. To me, good prosecutors are not merely those who have the highest conviction rate or make the best arguments to the jury. Good prosecutors are those who tailor their actions to achieve what is best for society including victims and their families, the community at large, and criminals themselves. What is best for one, however, is often at odds with what is best for others. The good prosecutors strive to reconcile these conflicting interests. Naturally, as a new prosecutor I wanted to be one of the good ones. But, when I fully understood what was involved I was overwhelmed. Should I use my prosecutorial discretion to lessen the charge of an otherwise good kid with a bright future, or should I throw the book at him because our laws are clear and the consequences were foreseeable to him? What to do with impaired driving (DUI) offenders was especially puzzling to me. Most cases did not involve a victim, yet the inherent danger of the crime was the same with Should I use my prosecutorial discretion to lessen the charge of an otherwise good kid with a bright future, or should I throw the book at him because our laws are clear and the consequences were foreseeable to him? or without a victim; people are killed and/ or injured by DUI offenders, and anyone can be a victim. My idealistic notions of justice further confused my thinking. Lady Justice is blind and she balances truth and fairness. How could I claim justice was blind and my actions were fair if I treated a high school boy differently from a 55 year old man when they each committed a DUI? I was struggling with these ideas when I sought the advice of another prosecutor whom I admired. We were on the phone and I could hear him shake his head and smile. Erin, prosecute the crime, and sentence the person. That s what I do, and it seems to work best. 1 As soon as he said it I felt my burden lift. At that moment I knew how to approach each case fairly and justly. The course to justice became much more navigable. Prosecute the crime; Sentence the person. Prosecute the Crime; A Straightforward Task for Lawyers Ever since that day I have asked myself two over-arching questions when reviewing DUI cases. First, what actions did the offender take? Second, what sentence would best rehabilitate the offender while protecting the victims and the community at large? The first question looks more objectively at the actions of the offender, while the second question takes into account the subjective attributes of each individual case. If a person committed a DUI, I pursued a conviction for the crime of DUI irrespective of their circumstances. When making sentencing recommendations or (Continued on page 6) Inside this Issue OHSP Summer Focus...2 Significance of People v. Koon...3 National Sobriety Testing.4 Group Honored for Drug Recognition Expert...5 For Your Information Thank you Mike Weber, Richland County Attorney. Page 2 OHSP summer focus on belts, impaired driving, and motorcycle safety Michael L. Prince, Michigan Office of Highway Safety Planning Director I am utilizing this issue of the Safety Network News to announce major programming efforts to address three key traffic safety problem issues in the summer of Unbelted Traffic Fatalities: Buckling up is the fastest, cheapest, and best method of reducing traffic fatalities, injuries, and their economic costs. Without the use of seat belts, most safety features in today s motor vehicles are less effective. However, since 2003, (two years after the establishment of Michigan s primary seat belt law), 2,238 people have died unbelted in traffic crashes in our state. With a usage rate of 94.5 percent, more than five of every 100 front seat occupants are not wearing a seat belt. This is completely unacceptable for a state that holds the all-time national safety belt use record of 97.9 percent and that led the nation in seat belt use for two consecutive years. To reverse this trend, the Michigan Office of Highway Safety Planning (OHSP) is implementing an aggressive effort to increase seat belt use this coming summer. OHSP is funding one of the largest seat belt campaigns ever in 2012 with $1.1 million of overtime patrols focusing on enforcement of the state s seat belt law. At the same time, we are urging a zero tolerance OHSP is funding one of the largest seat belt campaigns ever in 2012 with $1.1 million of overtime patrols focusing on enforcement of the state s seat belt law. approach for seat belt violations by all law enforcement agencies. A major public information and education effort will be launched, including television and radio advertising, to drive home the message to all motorists that the state seat belt law is being strictly enforced and the fine is $65. Regardless of what you hear, this is not about revenue generation. If it was, we would not publicize our enforcement efforts and ask for voluntary compliance. This is a hollow argument that ignores the fact it would be more beneficial for revenue generation to avoid publicity altogether. The fact is, we prefer voluntary compliance of all traffic laws. That is and always will be our goal. Alcohol/Drug Impaired Driving: While the trend for alcohol-involved fatalities continues downward, druginvolved fatalities were up in 2010 by 29 percent. For 2012, OHSP will fund training for more than 1,200 officers in alcohol and drug detection techniques and training updates for an additional 1,400. The goal is to ensure every deputy, officer, and trooper enforcing traffic laws has completed the basic Standardized Field Sobriety Testing course. Many more are taking the next level of training, Advanced Roadside Impaired Driving Enforcement. Recently we graduated the second Drug Recognition Expert (DRE) School, bringing the number of police officers trained as DREs in Michigan to 29. High-visibility enforcement will take place in 26 counties this year and will be supported through $2.4 million in federal The Green Light News traffic safety dollars, with a $750,000 paid ad campaign around the Labor Day holiday to close out the summer. In addition, $600,000 in grant funding will support the initiation or expansion of up to 16 sobriety courts. Sobriety courts are proven to be one of the most effective methods to reduce recidivism of impaired drivers by addressing the underlying issue of addiction. Motorcycle Crash Injuries and Fatalities: More than 10 percent of Michigan s traffic fatalities annually involve motorcycles. Driving these numbers down is going to require emphasis in two areas, rider training and promoting use of high-visibility protective equipment, including helmets, within the rider community. In support of the Department of State s Motorcycle Safety Training Program, OHSP has provided more than $360,000 to purchase 90 new training motorcycles for the state s fleet to improve the quality experience of the state s Basic Rider Course. We will also continue providing support for the Advanced Rider Course (ARC). Basic and advanced rider training is critical to improve the level of crash avoidance skills within the riding community. In 2011, Michigan led the nation in enrollment for the ARC, and we are looking forward to that continuing in OHSP is exploring a campaign to promote the use of high-visibility protective riding gear to reduce crashes. No one intentionally pulls out in front of a motorcycle. They do it because they don t see the rider. An aggressive campaign to increase the use of highvisibility protective gear can only reduce crashes, fatalities, and injuries. We are looking forward to a safe summer of successful traffic safety programming. Enjoy what our wonderful state has to offer and remember that the only acceptable number of fatalities on our roadways is zero. The Motor Vehicle Code serves the purpose of promoting traffic safety. 1 The Motor Vehicle Code prohibits the operation of a motor vehicle by a person who has the presence of a Schedule 1 controlled substance in his or her body, regardless of the manner in which the person is operating. 2 Marijuana is a Schedule 1 controlled substance. 3 The Motor Vehicle Code also proscribes the operation of a commercial vehicle if the operator s bodily alcohol content is.04 or higher 4 and operators less than 21 years of age are prohibited from operating with bodily alcohol content regardless of how the motor vehicle is operated. 5 It is a lack of scientific understanding of the effects specific quantities of marijuana have on driving ability that prompted the Michigan Legislature to enact a per se drug law prohibiting The Significance of the People v. Koon Michigan Court of Appeals decision! By Kenneth Stecker In essence, a person shall not operate a motor vehicle with any amount of Schedule 1 controlled substance, which includes marihuana ( THC ), in the person s body. driving a motor vehicle with any amount of certain substances in one s body, including marijuana. There are other states that have enacted a per se drug violation similar to the alcohol per se law in Michigan. Laws in Arizona, Georgia, Illinois, Iowa, Indiana, and Nevada have been challenged and found to be a proper exercise of legislative authority. 6 In Bennett v. State, the Indiana Court noted as follows: A fat ban on driving with any proscribed controlled substance in the body, whether or not capable of causing impairment, is permissible. 7 It is permissible because, unlike alcohol, there is no acceptable level of drug use that can be quantified so as to distinguish between users who can drive unimpaired and those who are presumptively impaired. 8 Consequently, the court held, Our legislature could have reasonably concluded that no level of Schedule 1 or Schedule 2 controlled substances can be acceptably combined with driving a vehicle. 9 In People v. Koon, the charges against the defendant, Rodney Koon, arise out of an incident which occurred on February 3, 2010, in which Koon was stopped by a Grand Traverse County Sheriff s Office deputy for speeding. During the traffic stop, the deputy detected the odor of marijuana coming from the vehicle. The defendant told the deputy that he had consumed marijuana earlier that day. A blood sample was taken and sent to the Michigan State Police crime laboratory for testing. A toxicology report indicated the presence of 10 ng/ml THC in defendant s body. Based on the toxicology report, the defendant was charged with violating the Michigan Motor Vehicle Code by operating a motor vehicle with any amount of Schedule 1 controlled substance in his body. On November 16, 2010, the Grand Traverse County Circuit Court issued an opinion ruling that Michigan Compiled Law (8) conflicts with Section (e) of the Michigan Medical Marijuana Act such that medical marijuana cardholders are permitted to operate a motor vehicle after using marijuana if it is used for medical purposes. 1 Motor Vehicle Code, 1949 Public Act Michigan Compiled Law (8) 3 Michigan Compiled Law (1)(c) 4 Michigan Compiled Law M(1) 5 Michigan Compiled Law (6)(a) 6 Williams v. Nevada, 118 Nev 536, 50 P3d 1116 (2002) 7 Bennett v. State, 801 NE2d 170 (2003) 8 Id. At Id. Therefore, the prosecutor is required to prove as an element of the offense that the defendant s impairment was due to the use of the marijuana. In essence, the circuit court found that the Michigan Medical Marijuana Act supersedes Michigan Operating Under the Influence Drugs Per Se Law. The Green Light News (Continued on page 7) Page 3 Page 4 The Green Light News National Sobriety Testing Resource Center and Drug Recognition Expert Data System Impaired driving has long been identified as a significant traffic safety and public health concern. In recent decades, our understanding of impaired driving has increased and shifted from a simple traffic violation to a serious societal issue. Like many public safety issues, impaired driving is continuously changing, requiring rapid analysis of emerging trends to meet the challenges this subject presents. Increasing numbers of drivers and vehicles on our roadways mean a higher number of potentially impaired drivers behind the wheel. With this in mind, increased focus has been placed on drug impaired driving. Emerging trends that impact this problem include an aging population, increasing numbers of prescriptions being issued, and rapidly shifting types of illicit drugs. This situation has required law enforcement, prosecutors, and toxicologists to adjust their approaches and tactics to address drug impaired driving. The National Highway Traffic Safety Administration (NHTSA) has responded with a broad range of research, enforcement, and data collection tactics. The Office of National Drug Control Policy (ONCDCP) has identified data collection for drug impaired driving as a significant priority area of concern. To help meet the challenge, NHTSA funds and operates the National Sobriety Testing Resource Center and DRE Data System. This web-based system is available to certified law enforcement officers, highway safety personnel, and prosecutors to serve as a common point of information and communication among professionals charged with combating impaired driving. By Wilfrid K. Price in August of 2010 and has provided users with a reliable and secure site to obtain information and capture Drug Evaluation Classification program data resulting from field evaluations of drug impaired driving suspects. At present, the DRE Data system contains records on more than 265,000 drug impaired driving evaluations from around the country over the past several years. As new DRE States come on line, the evaluators within the state typically begin the process of capturing data on each evaluation they conduct. These records are updated with the results of toxicology testing that is conducted on collected samples from suspected drug impaired drivers. The result is an extremely robust data set that can reveal trends at the local, State, and national levels. The system also provides the individual DRE user with a rolling log function that captures critical work indicators for each evaluation conducted, the opinions rendered by the DRE, and results of toxicology screening that is conducted. These records can prove valuable when prosecuting drug impaired driving cases to demonstrate the law enforcement officer s experience and proficiency at arriving at informed opinions regarding drug impairment based on their training. One of the many benefits of the system is that the rolling log can graphically depict a DRE s work history and accuracy in forming opinions. This can be critical to establishing the credibility of the individual officer and the State s DRE program in prosecuting drug impaired driving cases. The system was designed and is operated to collect drug impaired driving information, without collecting personal identifying information (PII) on suspects. As a result, there are no suspect names, dates of birth, or other identifiers in the system. The reason for this is to ensure compliance with established federal regulations, and follow guidance from NHTSA on the function of this particular data system. There is also a need to ensure fairness and confidentiality for all subjects, but particularly those situations where evaluations or In 2009, NHTSA contracted with Syneren Technologies to consolidate two existing information and data systems into a single point of contact and functionality. The resulting site was launched (Continued on page 8) Group honored for establishing Drug Recognition Expert Program in Michigan The Drug Recognition Expert (DRE) Program Steering Committee will be honored at the Governor s Traffic Safety Advisory Commission (GTSAC) annual awards luncheon Wednesday at the Kellogg Conference Center in East Lansing for establishing a DRE training program and hosting the state s first DRE school. Each year the commission honors organizations, programs and individuals for outstanding contributions to traffic safety. The awards luncheon is part of the 17th Annual Michigan Traffic Safety Summit. One long-term service and five 2011 traffic safety achievement awards are being presented. Although Michigan has experienced a decrease in alcohol-related crashes, fatalities and arrests, it has noted an increase in drug involvement in traffic crashes and injuries. In 2010, druginvolved fatalities increased by 29 percent with 153 motorists killed in crashes involving drugs. Some of that increase can be attributed to expanded testing requests. DREs are trained to recognize signs of impairment in drivers under the influence of drugs other than, or in addition to, alcohol and to identify the category or categories of drugs causing the impairment. They conduct a 12-step evaluation process to make this determination. The state s first DRE class was held in April 2011, with 15 officers graduating from the intensive, three-week course. A second class was completed in March 2012, with 14 DREs trained. The members of the DRE Program Steering Committee are: Michigan State Police Sgt. Perry Curtis, Grand Blanc Township Police Officer Wes Evans, Auburn Hills Police Officer Jeramey Peters, Michael Harris of the Office of Highway Safety Planning, For Your Information Prosecutor s Encyclopedia Ken Stecker of the Prosecuting Attorney s Association of Michigan and Deborah Savage, who retired from the Office of Highway Safety Planning. The GTSAC was formed in 2002 to serve as the state s forum for identifying key traffic safety challenges and developing and implementing plans to address those issues. The GTSAC is comprised of representatives from the departments of: Community Health, Education, State, State Police and Transportation, as well as Office of Services to the Aging, Office of Highway Safety Planning and the Office of the Governor. There are also three representatives from local government appointed by the Governor. The Prosecutor s Encyclopedia (PE) is a new resource that combines 21st Century technology with team work. PE takes mutual assistance to a new level by combining authority and commentary in one easy to access, free resource that everyone can use and update. PE is Wikibased, but differs from other well known Wiki products in that it is open only to prosecutors and cannot be anonymously edited. The PE contains every reported federal and state court decision from 1970-present, powered by VersusLaw; features videos of forensic experts testifying in some of the highest profile cases throughout the United States; auto-detects case citations and hyperlinks to cases; and serves as a nationwide directory of prosecutors and Expert Witnesses. The PE also contains thousands of Expert Witness transcripts, commentary from fellow Prosecutors, Case Summaries, and discussions. More content and cases are added each week. Check it out! Prosecutors Encyclopedia: Contains every reported federal and state court decision from 1970-present, powered by VersusLaw. Features videos of forensic experts testifying in some of the highest profile cases throughout the United States. Auto-detects case citations (in prosecutors articles, and hyperlinks to cases). Serves as a nationwide directory of Prosecutors and Expert Witnesses. PE Contains: Thousands of Expert Witness transcripts Commentary from fellow Prosecutors Case Summaries Discussions More content and cases are added each week How to Join PE: 1. Go to: 2. Click request an account. 3. Complete the user information form. 4. Once you are approved, begin collaborating and start contributing! 5. If you run into an iss
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