Disparate Sentences for NBA Stars' Drunk Driving Convictions in Oakland County

A well-respected blog on sentencing picked-up on the infamous NBA drunk driving cases coming out of the 48th District Court in Bloomfield Hills, MI. The blog noted the difference between Jalen Rose's straight-forward OWI conviction [he did 14-days in the OCJ]; and the weapons charge component to Big Ben Wallace's OWI charge, recently resolved in the Oakland County Circuit Court before Judge Shalina Kumar.

Here is what the blog had to say about the two cases:

On the surface, it would appear that Wallace committed a (much?) worse offense but ultimately got a (much?) lighter sentence than Rose.  Of course, maybe there are some specific differences in the cases not obvious on the surface that justify this seeming disparity.  And, perhaps more importantly, the mere fact that can be (and often is) a lot of "low-level" sentencing disparity in this arena does not, in an of itself, necessarily establish that the applicable sentencing law is either unjust or ineffective.

Reading this blog post and being a local criminal defense attorney, I could not resist posting the following comment:

Great blog, DAB. This comment is from a criminal defense attorney in Oakland County, MI, where this Ben Wallace and Jalen Rose stuff went down. First, it is a suburb of Detroit; not in the "D", as we say. Also, Bloomfield Hills, where the district court is seated for that area, is a posh tony burb. (i.e. there are NBA stars driving around partying).

This comment seeks to shed some light on the "disparity" in the sentencing for the two NBA stars. Rose had the misfortune of driving drunk within the jurisdiction of the 48th District Court and to have his case randomly assigned to Judge Kim Small. Judge Small has made national headlines over the years for her drunk driving sentences; they often involve some jail time, even for first offenders with no criminal history. Currently, a group of high-end defense lawyers have challenged Judge Small, seeking to have her disqualified from all drunk driving cases on the basis that she is not fair or impartial, and that her "one-size-fits-all" sentencing policy (i.e. jail for all offenders), violates the "individualized sentencing" mandated by Michigan statute.
This is why Jalen Rose went to jail last summer. 

In the case of Ben Wallace, the big fella was OWI while packing some loaded cold steel in his Cadillac, upping his game to the felony level, and thereby "just passing through" the 48th District Court. Fortunately for him, although he too was randomly assigned to Judge Small, his attorneys executed a "fast break", waiving the preliminary exam, and binding Wallace over to the trial court. Once there, probation was available all day long. Good bye Judge Small; hello Judge Shalina Kumar. 

Unlike Rose, however, Wallace will have a felony weapons conviction on his record. Last year, Wallace spoke of going to law school. This probably puts the kabosh on that notion.
Here is a link to our local blawg coverage of Big Ben.

Sometimes an accused's notoriety helps his cause; sometimes it hurts the case.

www.waterfordlegal.com

info@waterfordlegal.com

Miss Michigan "Super Drunk" Candidate in Highland Park

Former Miss Michigan Rima Fakih

Oops, busted.  Former Miss Michigan and Miss USA Rima Fakih, 26, of Dearborn, MI, allegedly was cited at 2:15 am in Highland Park for driving with a blood alcohol content of .20.

Unfortunately for the beauty queen, this qualifies her for a charge under Michigan's relatively new "super drunk" law.  While Fakih, like most other motorists, will be initially charged with a standard "operating while intoxicated" offense, there is the potential for the "super drunk" charge if her BAC is greater than .17.

This "super drunk" charge subjects drivers to stiffer penalties.  Those penalties include a one-year license suspension for first-time "super drunks"; an increase in the potential maximum jail sentence from 93-days to 180-days; higher fines; and mandatory use of an "ignition interlock" device.

The super drunk law also features the longest alcohol rehabilitation treatment requirement on the books; one-year.

If convicted as a "super drunk", Fakih's driver's license will be suspended by the Secretary of State for one-year.  After a 45-day "hard suspension" where all driving privileges are suspended, she can apply for restricted driving privileges for the balance of the year provided, however, that an " ignition interlock" device is installed in her vehicle.

If allowed to plead to an ordinary "operating while intoxicated" charge, the hard suspension may only be for 30-days, depending on Fakih's master driving record, and there will be no interlock requirement.

Installing an interlock device will cost her about $50 and up to $100 per month to maintain.

So we will just have to wait and see whether this beauty queen's celebrity [perhaps "infamy" is a better word] will aid her cause, or hurt her case.  It is unknown at this time whether she was charged under local ordinance or state law; or whether the local prosecutor will elect to charge her under the "super drunk" law or with just plain old ordinary OWI.

www.waterfordlegal.com

info@waterfordlegal.com

Saved by the Gun

Ben Wallace

What a difference one-year makes.  Last year, our law firm's web site carried a tweet in our news feed about Big Ben attending law school.

Last weekend, any plans the big fella had of convincing a state bar to issue a law license in his name just became more complicated.  Wallace, recently retired from the Detroit Pistons, and a former Chicago Bull and Cleveland Cavalier, was arrested in Bloomfield Township on Saturday night.

News reports have Wallace failing field sobriety tests and submitting to a breath test allegedly resulting in a .14 blood alcohol content.  The legal limit in Michigan is .08; the year-old "SuperDrunk" threshold is .17.

An unloaded pistol allegedly was found in Wallace's Cadillac.  This could actually help him out.

Apparently, Wallace's case was randomly assigned to 48th District Judge Kim Small; known for her harsh sentences for first time offenders of Michigan's drunk driving laws.

Drunk driving is a misdemeanor if a first offense; misdemeanors stay in the district courts where they originate.  Carrying a concealed weapon, on the other hand, is a felony.  Felonies are bound over for trial, or resolution via plea, at the county circuit court.

Judge Small was all over the national headlines this summer when she sentenced former NBA star, Jalen Rose, to nearly a month in the Oakland County Jail.   Would Big Ben have received the same fate?  We'll never know now.

Wallace will most likely plead guilty to both the felony and the misdemeanor and get probation rather than any jail time.  Carrying the unlicensed pistol may have saved the big fella several weeks of sensory deprivation in the Oakland Hotel.

Update:
I was in the halls of the Oakland County Circuit Court on Tuesday when Big Ben was being sentenced by Judge Shalina Kumar.  As predicted, he received probation.

Here's a post to an outstanding criminal law blog that captures the perspective of these local NBA stars' convictions from the national level.

www.clarkstonlegal.com

info@clarkstonlegal.com

Fab Five Continues to Disappoint UM Fans

For all their hype, the men behind the Fab Five continue to disappoint fans, supporters and alumni of the University of Michigan.

First it was Chris Webber's phantom time-out vs North Carolina in the 1993 Final Four game.  Then the premature abandonment of the University of Michigan Basketball Program by the headliners of the group, Webber and Jalen Rose.  Next, the final four banners were removed from Chrysler Arena due to the Ed Martin booster scandal.

This month, it's two criminal convictions right here in Oakland County; one for Jalen Rose, who's doing 20-days in the Oakland County Jail on a sentence from 48th District Judge Kim Small; the other is for charges of felony child support against Jimmy King.  According to the Michigan Attorney General, King owes nearly $18,000 in child support arrears.  He was arrested in Detroit.

Both men are currently detained in the OCJ.

Attorney General Bill Schuette was quoted in the Detroit Free Press as saying, "when it comes to child support, no matter who you are, you have to play by the rules."

It's a shame that these men have never played by the rules; it's a shame that they continue to cast a pall over the University of Michigan.

www.clarkstonlegal.com

info@clarkstonlegal.com

Breathalyzer May Be Required in Michigan Bars

There is a bill pending in the Michigan Senate which, if passed, will require bars and restaurants that serve alcoholic beverages to make self-operated breathalyzers available to patrons.  The bill, sponsored by Senator Bert Johnson of Highland Park, was submitted to the Senate Committee on Regulatory Reform on June 1, 2011.

Presumably, the legislative wisdom associated with such a law would be to provide bar patrons with some immediate feedback relative to their blood alcohol level.  There is a large body of published analysis, however, impugning the accuracy of these devices.  For example, if any alcohol or a variety of other agents are present in your breath sample, the results will be distorted.

One advantage of this law is that if patrons discovery they are "Super Drunk", with a blood alcohol in excess of .17, they would presumably not risk the enhanced penalties by venturing onto the roadways.

In a court of law, the preliminary breath test (PBT) results generated from such devices are not deemed admissible in court.  Like field sobriety test results, the PBT can generally only be used to demonstrate whether there was probable cause to support a drunk driving arrest.

These machines cost anywhere from $250 to $950.  Every bar, restaurant, or entertainment venue will have to purshase a series of these devices.  Resources will be devoted to operating and maintaining the breathalyzers by the waitstaff at each speakeasy.  Liability steming from this legislative requirement will result in lawsuits.

On the other hand, the more awareness that is raised about drinking and driving, the better.  The question is whether the costs imposed on restauranteurs, then passed on to patrons, is worth it.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

Michigan's Super Drunk Law After Six Months

It's still too early to tell if Michigan's new "Super Drunk" driving law is having an effect on making our roadways safer.  The law took effect last November.

Some following the law have noted that due to plea deals, many convicted of this law are going to rehab rather than jail.  One of the provisions of the law was to double the jail term from 90 to 180 days for convicted super drunk drivers.

According to Eaton County district judge Harvey Hoffman, an early proponent of the new law, more folks are jumping into sobriety courts, or extended rehabilitation programs.   Judge Hoffman cites chronic jail overcrowding as a chief factor in sentencing super drunks to rehabilitation over a six-month jail bit.

Of course, here in Oakland County, there is no such thing as a plea bargain and the prosecutor no longer participates in district sobriety courts.  If you are charged under the Super Drunk law, you will not get an offer to reduce the charge to impaired driving, even if it is your first offense.  Your fate will be in the hands of your sentencing judge.

By comparison, the Eaton County prosecutor has a new policy in super drunk cases of approving a plea reduction to impaired in exchange for the accused's assent to enter into a sobriety court program, forcing the offender to come to terms with their drinking problem. 

The 0.17 blood alcohol level which triggers the new law is not an outrageously high BAC.  On average, the BAC of an arrested driver is 0.16; very close to the super drunk threshold.

So the best thing to do is simply stay off the roads when you've had too much to drink; that way, we're all safer.  If you cannot do that, go on ebay and purchase a "Big Blue Book" as a compulsory 12-step program may be in your future.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

"Super Drunk" Driving Law Takes Effect Today

If your Halloween plans for today include any heavy drinking, think twice before getting behind the wheel.

Persons caught operating a motor vehicle after bing-drinking, or with a high tolerance for alcohol, will face stiffer penalties starting today.  If a driver's blood alcohol (BAC) is measured at more than .17 grams per 100 milliliters, (more than double the legal limit) then the new enhanced penalties will apply.

Those penalties include a one-year license suspension for first-time "super drunks"; an increase in the potential maximum jail sentence from 93-days to 180-days; higher fines; and mandatory use of an "ignition interlock" device.  The new law also features the longest alcohol rehabilitation treatment requirement on the books; one-year.

Once a conviction under this new law is abstracted to the Secretary of State, the driver's license will be suspended for one-year.  After a 45-day "hard suspension" where all driving privileges are suspended, a person can apply for restricted driving privileges for the balance of the year provided, however, that an " ignition interlock" device has been installed in the vehicle.  Under the old law, the hard suspension was only for 30-days and there was no interlock requirement.

Installing an interlock device will cost you about $50 and up to $100 per month to maintain.

Also, there are new penalties created under the Super Drunk law relative to operating an "interlocked" vehicle with a BAC of more than .025.  If a driver's probation is violated in this fashion, the Secretary of State will double the driver's license restriction by imposing a new 365-day suspension from the date of violation.

Beware if you lend your vehicle to a convicted Super Drunk on probation.  The new law requires impoundment and immobilization of any vehicle driven by a person under interlock restriction that is caught operating a vehicle without the device.  The owner of the vehicle is responsible for impoundment and storage costs.

Only time will tell whether this new law results in safer roadways.  There is no doubt that the tougher drunk driving laws implemented over the past 20-years have reduced (but not eliminated) drunk-driving related injuries and deaths.

One concern from within the trenches is how county prosecutors will use the new law in their charging decisions at district court.  Last year, the Oakland County Prosecutor stopped offering the lesser included offense of impaired driving to those charged with drunk driving.  This blog wonders whether a Super Drunk first offender will be offered a plea under the standard "Operating While Intoxicated" law, thereby avoiding the new interlock costs and restrictions as well as the other enhanced penalties.

If such plea reductions are not tendered under appropriate circumstances, the new law could result in many unnecessary jury trials.

www.clarkstonlegal.com

info@clarkstsonlegal.com

The New "Super Drunk" Law Takes Effect this Halloween

This year, Halloween falls on a weekend.  If you are making party plans that include any heavy drinking, think twice before getting behind the wheel.

Persons caught operating a motor vehicle after bing-drinking, or with a high tolerance for alcohol, will face stiffer penalties beginning October 31, 2010.  If a driver's blood alcohol (BAC) is measured at more than .17 grams per 100 milliliters, (more than double the legal limit) then the new enhanced penalties will apply.

Those penalties include a one-year license suspension for first-time "super drunks"; an increase in the potential maximum jail sentence from 93-days to 180-days; higher fines; and mandatory use of an "ignition interlock" device.  The new law also features the longest alcohol rehabilitation treatment requirement on the books; one-year.

Once a conviction under this new law is abstracted to the Secretary of State, the driver's license will be suspended for one-year.  After a 45-day "hard suspension" where all driving privileges are suspended, a person can apply for restricted driving privileges for the balance of the year provided, however, that an " ignition interlock" device has been installed in the vehicle.  Under the old law, the hard suspension was only for 30-days and there was no interlock requirement.

Installing an interlock device will cost you about $50 and up to $100 per month to maintain.

Also, there are new penalties created under the Super Drunk law relative to operating an "interlocked" vehicle with a BAC of more than .025.  If a driver's probation is violated in this fashion, the Secretary of State will double the driver's license restriction by imposing a new 365-day suspension from the date of violation.

Beware if you lend your vehicle to a convicted Super Drunk on probation.  The new law requires impoundment and immobilization of any vehicle driven by a person under interlock restriction that is caught operating a vehicle without the device.  The owner of the vehicle is responsible for impoundment and storage costs.

Only time will tell whether this new law results in safer roadways.  There is no doubt that the tougher drunk driving laws implemented over the past 20-years have reduced (but not eliminated) drunk-driving related injuries and deaths.

One concern from within the trenches is how county prosecutors will use the new law in their charging decisions at district court.  Last year, the Oakland County Prosecutor stopped offering the lesser included offense of impaired driving to those charged with drunk driving.  This blog wonders whether a Super Drunk first offender will be offered a plea under the standard "Operating While Intoxicated" law, thereby avoiding the new interlock costs and restrictions as well as the other enhanced penalties.

If such plea reductions are not tendered under appropriate circumstances, the new law could result in many unnecessary jury trials.

www.clarkstonlegal.com
info@clarkstsonlegal.com

Driving While Distracted by Cell Phone

Has the time come for drivers to give-up cell phones while operating their vehicles? In Michigan, more municipalities and jurisdictions are saying, "maybe". The cell phone lobby, however, says, "not yet", and continues to block state-wide cell phone bans.

Despite the efficiencies achieved by the now-ubiquitous cell phone, Royal Oak, Southfield and other jurisdictions have considered outlawing this form of "multitasking". Many other Oakland County municipalities have enacted "driving while distracted" provisions which enhance the fines assessed when a cell phone factors into a traffic violation.

Many would say, "it's about time." Even the cell phone lobby may be coming around. A recent Sunday New York Times front-page article describes how the Cellular Telecommunications and Internet Association recently changed its position opposing cell phone bans, to a more "neutral" stance. The Sunday Times article, which summarizes the scientific data compiled about distracted driving, can be found at the following link: http://tinyurl.com/mq6r4x

Although mounting statistics compare cell phone driving to drunk driving, eight states have enacted legislation that prevent municipalities from passing ordinances that prohibit cell phone use. Other states like California, New York and New Jersey, have banned hand-held devices while driving. Royal Oak and Southfield may be next.

If you have suffered injuries from a driver distracted by a cell phone, or have had a traffic citation enhanced because of it, contact us to discuss your options.

Update:  See comment below regarding an OP update.