Tuesday, May 17, 2011

OUIL Appeal - Michigan Destroys Blood and Violates Due Process is Claimed

This case comes to DAD through the watchful eyes of Michigan lawyer Michael Nichols (my what a busy boy Mike!). In People v. Reid, --- N.W.2d ----, 2011 WL 1775888 (Mich.App.), the defendant challenged his DUI conviction alleging that he was denied his right to an independent analysis of his blood sample due to the destruction the blood 6 months post arrest. The defendant wasn't charged with OWI until 21 months following his arrest. He also argued that his due process rights to a speedy trial were violated by the delay in charging him, when as a result of a 60 day retention policy, a video of his arrest was destroyed well prior to the charges being filed.
On appeal, the court acknowledged that his arrest occurred 21 months following his blood draw, and that his blood was destroyed while the charges were still pending. The court found that the destruction was not improper, since the defendant had 6 months following the arrest to still ask for a preservation of the sample. "We conclude that defendant had more than an ample opportunity to have his blood sample independently tested and, therefore, the trial court did not abuse its discretion in denying defendant's motion to suppress the test results."
As far as the speedy trial violation was concerned, the court apparently employed a Barker v. Wingo SCOTUS analysis (i.e. length of delay, reasons for delay, assertion of rights by defendant, and prejudice resulting from delay). Again the court found no violation, even though the tape was destroyed 19 months prior to the charges being filed (so that defendant never had a chance to seek preservation):
"Defendant also argues that the prosecutor gained a tactical advantage in the delay in bringing charges because the prosecutor knew that the Michigan State Police would have long since destroyed the videotape of the traffic stop, thus depriving defendant of potentially exculpatory evidence from the videotape. But this argument also fails. First, defendant merely speculates that this is the reason for the delay. Indeed, defendant is unable to establish that a videotape ever even existed. The arresting officer, Trooper Bommarito, testified that he could not recall whether the police car that he was driving that evening had a video camera. Based upon the fact that there was a blank space under “video” on his police report, he concluded that there “might not have been a video” because the normal practice is to write the car number in that spot if the car is equipped with video. He further testified that, even if a video had existed, it would have been taped over after 60 days. A second officer, Trooper Rowe, who arrived at the scene at approximately the time defendant's vehicle was stopped, did have a car with video. But that video was presumably turned in and taped over under the 60–day rotation policy.

But defendant does not show that the prosecution deliberately waited to bring charges so that the tapes would be lost. Indeed, the prosecutor did not merely wait two months to bring charges, but almost two years. Not only is it mere speculation that the videotape would have been helpful to defendant and further speculation that the prosecutor waited to bring charges until any such tape was reused under the 60–day rotation policy, that speculation falls apart in light of the fact that the prosecutor then waited an additional 18 months or so to bring charges. It would seem that if the prosecutor's motivation in delaying the charges was to wait for any videotape to be reused, the charges would have been brought much sooner than was the case.

For the above reasons, we conclude that defendant has not shown a due process violation arising from the delay in charging him."

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