Michigan Court of Appeals Rules State Clerk Must Testify in DWLS Cases

In a 2-1 decision, the Michigan Court of Appeals recently ruled that a certificate mailed to a state driver, notifying him of his suspended license, is "testimonial" as that term is used in the constitution thus, the Secretary of State must produce it's clerk at a trial for driving on a suspended license.

The case, People v Nunley, arose in a district court in Washtenaw County.  The prosecutor attempted to introduce notice of the defendant's suspension, without calling a clerk from the Secretary of State's office to lay the proper foundation for the entry of that key document.

Both the district court and the circuit court denied the prosecutor's request to admit the document of suspension; a key element in any DWLS case.

The Court of Appeals panel reasoned that because the prosecutor must establish that the motorist received notice as an element of the crime, it held that introduction of the actual notice document, without producing the necessary foundational witness, violated the accused's right under the Sixth Amendment to the U.S. Constitution to confront and cross examine all witnesses.

In a well-reasoned 7-page dissent, Presiding Judge Henry Saad concluded that the notice was not "testimonial" under the analysis of seminal U.S. Supreme Court caselaw.  Judge Saad characterized the notice as merely "administrative" and emphasized that, when the notice was sent to Mr. Nunley, no crime had yet been committed [i.e. Nunley had yet to drive on his newly suspended license].  As such, the notice could not be testimonial in nature.

The result of this decision is that the prosecutor must now secure the appearance of the state clerk from Lansing in order to obtain a DWLS conviction.  Should the administrative costs of securing a conviction alter the analysis of the accused's constitutional right to confrontation of witnesses?  We think not.

The Washtenaw County Prosecutor has promised further appeal to the Michigan Supreme Court.

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Texting While Driving Soon Illegal in Michigan

Distracted driving takes lives.  Many adults have experienced that sick feeling of guilt and relief when you realize you've crossed over the center-line because you were checking your cell phone.

For most of us, we swerve back to our lane, hoping for the best and, statistically, you're fine; you continue to your meeting or appointment.  Others, however, are not so lucky.  Many injuries and deaths result as the incidents of distracted driving sweep over our state's roadways.

The cause is the now-ubiquitous cell phone and our seemingly insatiable need to "stay-in-touch" with everyone and everything at all times.  The electronic criminal lawyer posted on this subject last spring, speculating that it would not be long before the law catches up with our irresponsible habits.

The Michigan Senate has already passed the main legislation and Governor Granholm has indicated she plans to sign the legislation immediately into law.

The proposed fines are $100 for a first offense and $200 for a second offense.  The House of Representatives are now working-out how violations will be recorded by the Secretary of State on a driver's master driving record.

Stay tuned and put your cell phones down when you are driving.

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