Criminal Law

Detroit Free Press Articles Regarding Michigan Drunk Driving Raise Sentencing Issues

July 25, 2011 | Abdo Law Firm

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You should read the series in the Detroit Free which began on July 24, 2011 pertaining to drunk driving laws and sentencing in Michigan especially if you are someone that has a few drinks before operating a motor vehicle in the Metro Detroit area. In Michigan, a conviction for drunk driving can occur if the offender’s blood alcohol content is .08% or greater, regardless of intoxication. The prosecutor is only required to prove that the offender had operated a vehicle with an illegal blood alcohol content. Ignorance of the law is not a defense. In addition, it is not a defense to a drunk driving case that the offender was sober or able to operate his vehicle safely.

I can say the articles are long overdue which warn offenders that jail is a possible consequence in some jurisdictions for a first offense involving drunk driving (DUI). The articles also cover the financial side of drinking and driving which can run up to $10,000.00 after factoring in attorney fees, fines, court costs, financial responsibility fees, substance abuse counseling and motor vehicle insurance.

On July 24, 2011, the Detroit Free Press reported that “Arrest location could determine the outcome for a drunken-driving penalty.” As a criminal defense attorney with representative cases in Macomb and Oakland Counties, I can say that this article touches a nerve with the criminal defense bar. The article fairly depicts Judge Kim Small (48th District Court, Oakland County) as a Judge that will invariably impose at least 2 weeks in jail for a first offender convicted of drinking and driving. In contrast, Judges in Clinton Township (Macomb County) and Clarkston (Oakland County) agree that jail is not always the answer and will use substance abuse counseling extensively when someone is convicted of drinking and driving. In my experience, the imposition of jail is reserved by most Judges for offenders who violate probation or commit repeat offenses. Judge Small is not in this camp.

There is really no way to say if Judge Small is motivated by politics or really believes that she is doing the right thing when she gives a first time offender jail for impaired driving. (See Detroit Free Press article on July 25, 2011, “Oakland County judge among toughest in nation on 1st-time drunken driving offenders.” On the political side, she presides in one of the highest net worth jurisdictions in the United States. Her voters may believe that she is keeping them safe and preserving their property values by taking a tough stance on drinking and driving. On the other hand, many of the individuals sentenced in her Court are residents in the community where she presides. Clearly, she gains no votes or political advantage by incarcerating her own constituents.

You would be hard pressed to find any criminal defense attorney that is in favor of strict uniform sentencing that fails to consider the unique case facts and circumstances of the individual who is convicted of a criminal or drinking and driving offense. At least one attorney is quoted in the Detroit Free Press article who will not represent clients who are charged with drunk driving in Judge Small’s court.

The real question is whether Michigan should adopt uniform sentencing for offenders convicted of drunk driving. While Michigan has adopted Sentencing Guidelines for felony cases, there are no such guidelines for misdemeanors. The Sentence Guidelines take an offenders prior criminal record along with aggravating/mitigating offense variables into consideration. In addition, the Michigan Sentence Guidelines provide that a Judge may depart from the guidelines sentence range only where there are substantial and compelling reasons to do so. The Michigan Sentence Guidelines favor individualized sentencing with some limitations and confines.

The very nature of the legal system in the United States depends upon fairness and due process, not strict liability, uniform sentencing or mandatory jail for drinking and driving convictions. A private criminal defense lawyer remains the only advocate for the rights of the accused versus the vast financial resources and manpower of the government to prosecute an individual. The very idea of uniform sentencing puts more power in the hands of the government and lawmakers and removes power from individuals and their private attorneys.
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42-2 District Court: Jurisdiction Covers Drunk Driving, Criminal and Traffic Cases for New Baltimore, Chesterfield Township, New Haven and Lenox Township

July 20, 2011 | Abdo Law Firm

The 42-2 District Court located at 35071 23 Mile Road, New Baltimore, MI 48065. Judge William H. Hackel III is the presiding Judge for the Court.

The Court’s physical jurisdiction encompasses the City of New Baltimore, Chesterfield Township, New Haven and Lenox Township. The water-front City of New Baltimore is located in the heart of Anchor Bay.

The Police Agencies of the 42-2 District Court

There are several police agencies within the 42-2 District Court jurisdiction: Chesterfield Township Police, New Baltimore Police, Michigan State Police (I-94) and the Macomb County Sheriff’s Department. Because of its coastline, the presence of the Michigan Department of Natural Resources and United States Coast Guard is also necessitated in this region.

Chesterfield Township Gets More DUI Cases, Retail Fraud and Traffic Tickets

Chesterfield Township generates the most activity for the 42-2 District Court based upon its geographic size, density, major retail centers (see image above) and vehicular traffic. This is true for all matters heard in the 42-2 District Court such as drunk driving cases, criminal cases and traffic tickets. In 2016, Chesterfield Township administered 166 breath or blood tests in connection with operating while intoxicated arrests compared to 43 tests administered in the City of New Baltimore.

Criminal Cases in the 42-2 District Courts: Provisions of Law to Get Dismissals Available!

Our firm has represented clients charged with just about every imaginable misdemeanor and felony crime in the 42-2 District Court. The following is list of some of the most prevalent cases that we regularly see on the 42-2 District Court’s docket:

Domestic Violence
Retail Fraud (1st, 2nd 3rd degree)
Drunk Driving (OWI, Super Drunk Driving with .17 or more, OWI 3rd)
Drug Crimes (mostly possession analogues, marijuana, heroin)
Assault Crimes (misdemeanors and felony assault)
Traffic Crimes (DWLS, leaving scene of accident, reckless driving)
Disorderly Conduct (public intoxication, urinating in public)
Embezzlement & False Pretenses
Credit Card Fraud & Uttering and Publishing

Judge William Hackel III has been on the bench at the 42-2 District Court since 2009. The 42-2 District is a conservative district. Judge Hackel runs a tight ship and his Court is run very efficiently. Judge Hackel does have certain preferences for his Courtroom. One of his preferences is appropriate attire and he will compliment an individual that wears a shirt and tie when appearing before him. He also likes to see the presence of family members in the courtroom. Individuals that are placed on probation are expected to abide by ‘house rules’ and Judge Hackel will advise family members to contact him if there is incorrigibility at home.

Getting out on bond, bond conditions: If you are arrested or arraigned on a criminal matter in the 42-2 District Court, you will appear either before a magistrate or judge. Insofar as possible, it is always advisable to have an attorney present for arraignment purposes. An attorney can make a considerable difference at an arraignment hearing by advocating for a personal bond (where no money needs to be posted) or a for a low cash/10% bond arrangement. Judge Hackel and his magistrate will listen to an attorney’s remarks regarding bond which can save potentially thousands of dollars that a bondsman would otherwise take. In addition to the cash component of bond, the Court can also impose bond conditions upon a person’s release from jail. Drug and alcohol testing are common bond conditions for those charged with any crime involving drugs or alcohol. A ‘no-contact order‘ is assured in assault cases, domestic violence, sex crimes and all other crimes involving a victim. In retail fraud cases, the accused party may be instructed to refrain from entering the establishment where the alleged shoplifting occurred. A motion for a hearing can always be filed to modify bond conditions, remove a no-contact order or eliminate travel restrictions.

Misdemeanor or Felony Classification: In Michigan, the district courts have full jurisdiction to dispose of misdemeanors through sentencing. A misdemeanor is classified as an offense that carries up to 1 year in jail. Felony cases are another matter. A felony is classified as a crime that can carry more than 1 year in jail. A felony case is initiated in the district court for the arraignment, probable cause conference and preliminary examination. A felony that is not resolved in the district court will be moved to the circuit court for further proceedings. In certain cases, a felony can be reduced to a misdemeanor and can remain in the district court. Accomplishing reduction of a felony to a misdemeanor, thus avoiding a felony conviction, is considered a huge victory.

The outcome of a criminal case in the 42-2 District Courts, as well as other Macomb County District Courts, is dependent upon many components. The most significant factors that can have a bearing on the disposition of a case are:

Prior criminal history of the accused party.
Cooperation with the police.
Whether another party was injured, or property was damaged.
The ability of the accused party to provide restitution for damages to the injured party.
Whether the offense is a ‘policy case’ (crimes against senior citizens, children).

The 42-2 District Court presides over a diverse range of criminal cases which can be attributed to its distinct, shopping, suburban, rural and waterfront areas. In our experience, criminal cases can be resolved favorably at the 42-2 District Court. All of these special provisions of law are possible in the 42-2 District Court which can result in a dismissal of a criminal matter:

HYTA for youthful offenders (age 17 to 23)
MCL 333.7411 for first time drug offenders
MCL 769.a for domestic violence.
Delayed Sentence or Deferral

Even individuals that have a prior criminal record will be given respect and consideration for plea deals to get a dismissal under certain circumstances.

Drunk Driving Cases in the 42-2 District Court

As I previously mentioned, Chesterfield Township nets more DUI cases than any other municipality within the 42-2 District Court. The City of New Baltimore comes in second place.

For most first time drinking and driving offenders, jail is not likely absent aggravating circumstances. A person without any prior drinking and driving offenses can expect to get an OWI reduced to ‘operating while impaired’ in the 42-2 District. It is extremely difficult and rare, but not impossible, to get a drinking and driving offense reduced to a non-criminal offense. If a person is charged with Super DUI (BAC .17 or greater) a deviation may need to be filed to get a plea bargain to a lower offense.

1^st offense drinking and driving: Judge Hackel will consider non-reporting probation for a period of less than 1 year for first time offenders. In addition to probation, a person convicted for a first drinking and driving offense (operating while impaired) is looking at:

Probation for 1 year or less
Fines and costs approximately $1,200.00
Restricted license for 90 days
Attend an alcohol or substance abuse program
Possible drug testing, alcohol testing, AA meetings
4 points on driving record

There are other mandatory and discretionary sanctions associated with a drinking and driving conviction including: driver responsibility fees, probation oversight expenses and vehicle immobilization. The Court can also order installation of an ignition interlock system on any vehicle driven by a person convicted of a drinking and driving offense.

A repeat drinking and driving offender may be looking at a longer period of probation, up to 2 years, with the possibility of some jail time. There are many steps that we can recommend to those charged with a repeat drinking and offense offense to reduce the likelihood of incarceration in almost every Macomb County District Court.

The 42-2 District Court Probation Department: 35071 23 Mile Road, New Baltimore, MI 48065

The 42-2 District Court has its own probation department located in the courthouse.

It is within the judge’s discretion whether to place an individual on probation after being convicted of a criminal or drunk driving offense. In many cases that qualify as isolated incidents, we may be able to convince the judge that probation, also known as community supervision, is not necessary. When probation is imposed, the judge may require reporting or non-reporting probation. The maximum period of probation that can be imposed in the district courts is 2 years. However, our experience is that probation is rarely imposed for more than 1 year for most first-time offenders and Judge Hackel will often consider less than 1 year for most first offenders.

Traffic Violations in the 42-2 District Court: Reduced to Avoid Points and Record of any Conviction!

Several police agencies have an active presence monitoring the activity of vehicular traffic within the jurisdiction of the 42-2 District Court. Like other district courts in Macomb County, I would say that traffic tickets are on the top of the list of types of cases that are litigated at the 42-2 District Court. When resolving a traffic matter in the 42-2 District Court, we are often able to negotiate a reduction or avoid points. A substantial reduction in a traffic ticket occurs when it is reduced to an offense such as impeding traffic or double parking. A traffic ticket that is reduced to impeding traffic or double parking does not carry any points and will never appear on a person’s driving record! We are also able to get favorable results for individuals charged with misdemeanor traffic offenses such as driving while suspended, reckless driving and leaving the scene of an accident. Unfortunately, most individuals that receive a traffic ticket do not hire a lawyer and wind up with a record and points that will have an impact on insurance premiums for several years. The path of least resistance, paying the ticket, can be much costlier in the long run.

Probation: Modification of Conditions or Early Termination In Macomb County District and Circuit Courts

June 30, 2011 | Abdo Law Firm

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In Michigan, when an individual is sentenced for a crime, the Court may place the person on probation for a specified term. The maximum term of probation that may be imposed for a misdemeanor is 2 years and 5 years for most felony cases. All persons convicted of a felony are monitored by the probation office assigned by the Circuit Court. In Macomb County, the probation department is located at 32 Market Street, Mt. Clemens, Michigan. Some of the District Courts, including the 40th District in St. Clair Shores, the 38th District in Eastpointe, the 41-A District which covers Sterling Heights and Shelby Township, the 41-B District in Clinton Township, have their own probation departments.

Typically, the terms of probation after sentencing include regular meetings with a probation officer, alcohol testing, drug testing, and counseling. Probation can be disruptive to one’s daily routine and compliance with numerous conditions can interfere with home, school and employment.

Our firm receives calls almost daily from clients who are on probation and want to get out of the system. I find myself using a line from the movie Jerry Maguire when someone calls our law firm and wants to get off probation; “HELP ME HELP YOU.” The following will explain what I mean.

Our firm will go to bat for the person who has substantially complied with the terms of probation. A probation order can only be modified or amended by the sentencing Judge. This means that a motion and a hearing must be scheduled to request relief from probation conditions. It is up to the client to supply positive information which will be included in a motion and advocated at a hearing. Your probation officer may be your best witness at a hearing to modify probation. A client wishing to get out of the system must impress the probation officer by being punctual, completing all programs and having a good attitude. Don’t be the person who is late for probation meetings, fails drug tests and gives the probation officer a hard time and then expect the probation officer to get on board with your plight to have your probation modified. Remember the movie Jerry Maguire, life improved for the aspiring pro football player (Cubba Gooding, Jr.) when his attitude improved.

We usually like our clients to have served at least ½ of the total term of probation before we will file a motion to terminate probation. In other words, if someone gets two (2) years of probation, a motion to terminate probation may be considered after one (1) year of compliance. The Court may entertain outright termination of probation, amending probation from reporting to non-reporting or modification of conditions.
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Part 1: Domestic Violence Cases in Macomb and Oakland County, Michigan, Investigation, Arrest and Statements by the Accused

June 19, 2011 | Abdo Law Firm

In this 3 part series, I describe different scenarios and possible outcomes for domestic violence cases in Macomb and Oakland County. When our attorneys get a call for a domestic violence case, we know that the incident involves a relationship or marriage. Domestic violence cases also arise when an assault occurs between siblings or between parents and children. There is strong public policy associated with domestic violence cases in Michigan which places a great deal of pressure upon law enforcement and the courts. When someone is charged with domestic violence, the government takes over the case, the court can enter a no-contact order and there are numerous obstacles to getting the charge dismissed even with the victim’s consent. The penalties and stigma associated with a domestic conviction are huge.

Most domestic violence investigations or charges are initiated when a spouse or girlfriend calls 9-1-1 and reports that they were physically assaulted. A case can also be initiated when the person who was allegedly assaulted contacts the police within a few days after the incident. The police will take a statement and photographs if there are any visible bruises or injuries. The police may arrest the suspected party based upon the statement of the alleged victim or contact the suspect to for an interview. In most cases, the police will press charges even if the suspect denies the incident or claims self-defense.

A person suspected of domestic violence should refrain from making a statement to the police. First of all, the person making the statement is probably in an angry and emotional state of mind. This rarely lends itself to a rational statement. Second of all, the suspected party may admit to incriminating conduct such as intoxication or an argument which can be used against the suspect at trial. There is also the risk that the police will write a report which misinterprets or is contrary from the suspect’s statement. Lastly, most of our clients charged with domestic violence are first time offenders who have never been charged with a crime and do not comprehend law enforcement interrogation tactics. For these reasons and more, our law firm routinely advises our clients to exercise their 5th Amendment right to remain silent, hire a lawyer and have the lawyer contact the law enforcement agency.

Restrictions for Criminals Placed on Probation In Michigan; Nighthawks Make Random Visits For Violators In Some Michigan Counties

May 25, 2011 | Abdo Law Firm

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In Michigan, probation cannot exceed 2 years for misdemeanors and 5 years for felonies. Probation is determined at the time of sentencing and may include a component of incarceration. For example, our firm recently represented someone who was convicted of a felony, drunk driving third offense. The offender had 6 total drinking and driving convictions on his record and faced 1-5 years in prison. The Court was persuaded by the defendant’s employment and decision to begin a substance abuse treatment program. The defendant was sentenced to 2 years probation with the first 30 days in jail the Macomb County Jail; the minimum period of incarceration allowed by Michigan statute for felony drunk driving.

The least restrictive type of probation is called non-reporting or unsupervised. This means that the Defendant must be on good behavior during a period of probation and will be discharged at the end of probation provided the person does not violate any criminal laws. In addition, the Court may attach some conditions with non-reporting probation such as not leaving the State of Michigan without approval and attending an appropriate program (AA meetings or anger management).

Probation may also be supervised or reporting. The Court has broad power to place limitations and restrictions on otherwise legal behavior for a person who gets probation. For example, someone placed on probation may be prohibited from entering into a strip club or from using a computer. The image which is attached to this page is a copy of the probation conditions which are possible in Macomb County. Failure to abide by any of these provisions can result in termination of probation and incarceration.

Some counties, including Oakland and Ingham, employ a program known as Operation Nighthawk to monitor the behavior of those who are placed on probation. Operation Nighthawk is a program whereby probation officers along with law enforcement officers randomly visit probationers, usually after hours, to verify compliance. In an article which appears in the Ingham County Legal News, 55th District Court Judge says, “Unannounced sweeps by our probation office with local law enforcement officers are the backbone of Operation Nighthawk. NIGHTHAWK encourages probationers to follow their probation orders.”
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Part 3: Domestic Violence Cases in Macomb and Oakland County; Court Process, Victim Failing to Appear in Court, Victim Providing a Contrary Statement

May 20, 2011 | Abdo Law Firm

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Once a domestic violence case is in the system, the court will send out notices to the attorney and to the victim. A domestic violence case is a criminal offense which is classified as a misdemeanor in Michigan. The case will be scheduled in the district court for various court dates including: arraignment, pretrial conference, trial and sentencing.

If the case is not resolved by plea bargain after a pretrial conference, the accused may demand a trial. A jury trial or bench trial may be requested. A bench trial is a trial before the judge without a jury. I favor bench trials in certain domestic violence cases because a judge is able to focus on the admissible relevant evidence and discount the drama and side shows.

Clients often ask me if the case can be dismissed if the victim does not show up for court. An attorney cannot ethically advise anyone to ignore a court notice or subpoena. In addition, once someone is charged with domestic violence, the case is pursued by the government and the police may admit the police report as evidence in the event that a victim fails to appear in court for trial. However, our attorneys would make a motion to dismiss the case if the victim fails to appear for one or more trial dates. A judge may consider granting the dismissal without prejudice. When a dismissal is granted without prejudice, the case may be reinstated in the future by the victim. When a case is dismissed with prejudice, it can never be reinstated.

Once in a while, it will come to our attention during the pendency of a domestic violence case that the victim is willing testify that he or she made false statements to the police or that the police report is inaccurate. In this scenario, we try to preserve any exculpatory statements by obtaining a written or recorded statement from the victim. Here are some possible legal maneuvers which can occur when a victim provides a conflicting statement, especially one which is favorable for the defense. An attorney can use the victim’s subsequent written statement at trial for impeachment purposes if the victim attempts to recant the same. When we can admit the statement, it may discredit or weaken the victim’s testimony to the extent that the judge or jury cannot find the defendant guilty beyond a reasonable doubt. On the other hand, the prosecutor may try to introduce evidence to indicate that the victim was threatened or coerced to provide a favorable statement for the accused. In addition, I have seen prosecutors in Macomb and Oakland County threaten victims with charges of filing a false police report when they attempt to change their earlier statements which were made to law enforcement officers at the time of the alleged incident.
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Part 2: Domestic Violence Cases in Macomb and Oakland County, No-Contact Orders, Dismissals for First Offenders

May 20, 2011 | Abdo Law Firm

500_1188330532_533138_45768535[1].jpg Once arrested, a person charged with domestic violence will be held in jail, usually about 10 to 20 hours. Upon release, the person may have to post a bond which will be held by the court.

Almost anyone charged with domestic violence in Macomb County, as well as Oakland County, will be ordered to have no-contact with the victim. This is true even if the victim and the person charged are married and live in the same residence. Another scenario is when the alleged victim is not on the title or deed to the real estate, such as a live in girlfriend or boyfriend. Again, the person charged, or the owner of the residence, may be prohibited from returning to his or her own residence while the victim is present. A “no-contact” order as a condition of bond continues until it is lifted or removed by the district court judge. The district court judge may also continue the “no-contact” order as a condition of sentencing. A “no-contact” order can be lifted with the victim’s consent which usually requires an appearance before the judge with both parties present. An attorney can often expedite a hearing to remove a “no-contact” order if both parties consent.

The path of least resistance for a person charged with domestic violence is to plea pursuant to MCL 769.4a. Our firm has been able to successfully negotiate a plea bargain pursuant to MCL 769.4a in every Michigan district court where we practice, including Macomb, Oakland and Wayne County. This Michigan law allows for a person who is charged as a first offender to have the domestic violence case dismissed after a one (1) period of probation. The conditions of probation will vary, depending upon the court, but will usually include the following components:

MMMA Remains Controversial as Ann Arbor and Huntington Woods Begin to Regulate

May 4, 2011 | Abdo Law Firm

Recently Ann Arbor and Huntington Woods have provided some guidance in Michigan’s fractured, complex, and incredibly controversial Medical Marijuana Act. In Ann Arbor, while the city did not weigh in on whether or not to allow additional dispensaries (currently it has 20), it decided that cultivation facilities do not need licenses. Council Member Stephen Kunselman echoed the sentiments of the MMMA and said that he hoped to maintain caregiver confidentiality. Kunselman stated he doesn’t want the city to gather information that could wind up in the possession of the feds. Additionally, the city decided not to differentiate between residential and non-residential grow facilities. However, Ann Arbor DID limit the amount of plants to 72. This sheds light on a question frequently posed to us, whether grow cooperatives are permitted under the MMMA.

Somewhat similarly, Huntington Woods adopted regulations for those growing marijuana as caregivers. It decided to prohibit these businesses from being run out of homes. Further, the city has delineated certain districts where these businesses must be located. Additionally, like any other business operating within the city, caregivers will have to submit a site plan to the Planning Commission for approval. However, unlike Ann Arbor, Huntington Woods stated that dispensaries are not embraced by the state law. It should be noted that both of these communities that are opening up the discussion about medical marijuana are communities where the Act was passed by margins in excess of 70%.

However, this does not mean that the dispute over the law’s many uncertainties is close to being resolved. Recently, in an article that Abdo Law was quoted in, a Livingston Dispensary was raided. Additionally, the recent raid on Oakland County dispensaries raises serious questions about whether patients and caregivers need to be concerned about interference from the Feds. Moreover, a Dearborn judge recently decided that the entire MMMA was unconstitutional and denied to motion to dismiss a possession case.

So, on one hand we have communities beginning to regulate medical marijuana, and on the other there are communities ignoring the law outright. It is our position that more clarification is needed at the state level. Otherwise, well-intentioned patients and caregivers are going to be placed in jeopardy.
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42-1 District Court in Romeo Lists Fines and Costs For Drunk Driving and Criminal Cases

April 5, 2011 | Abdo Law Firm

The 42-1 District Court, located in the City of Romeo, has posted a list of possible fines and costs for various crimes. The list also contains a warning as follows: ALL FINES AND COSTS ARE DUE AT THE TIME OF SENTENCING, WE DO NOT GIVE TIME TO PAY. This warning is followed by strong language that failure to pay fines and costs will result in jail time.

The approximate range of fines and costs for a first offense Operating While Intoxicated (OWI) or Impaired Driving (OWVI) in the Romeo District Court is from $1,000.00 to $1,500.00. For a second offense, the range jumps to $1,500.00 to $2,500.00. This does not include other costs such as probation oversight expenses, substance abuse screening, driver responsibility fees, police/municipal response costs, random testing and substance abuse counseling. The driver responsibility fee for OWI is $1,000.00 per year for 2 years and for $500.00 per year for 2 years upon conviction of Impaired Driving.

The fines and costs for drinking and driving offenses in the 42-1 Court in Romeo tend to be on the high side but are consistent with fines and costs imposed in other courts such as the 41-B District Court, Clinton Township, which is also located in Macomb County. Information about other district courts located in Macomb County can be found at the county’s website.

Macomb Township man sentenced to prison after drunk driving accident in Harrison Township causes death

April 4, 2011 | Abdo Law Firm

A Macomb County resident was recently sentenced to serve 9-15 years in prison after pleading no contest to charges stemming from a drinking and driving hit and run which caused the death of a pedestrian. The defendant plead no contest to failing to stop at the scene of an accident, manslaughter with a motor vehicle and operating a motor vehicle while impaired causing a death. The charges of manslaughter with a motor vehicle and operating a motor vehicle while impaired causing a death carry a maximum of 15 years in prison. However, the defendant avoided a second degree murder case which could carry up to life in prison.

The case arises out of an incident which occurred on May 9, 2010. A man who left Gino’s Surf in Harrison Township struck a pedestrial walking along the side of the road. The accident was not reported until approximately 12 hours after the accident. Based upon the information provided, the police eventually found the victim in a ditch where the driver said he thought the accident occurred.

When the driver voluntarily turned himself in at the Macomb County Sheriff’s Department, he did not have any alcohol in his system according to an article in the Macomb Daily on July 14, 2010. However, the Macomb Prosecutor’s office was prepared to present witnesses who could testify as to the driver’s intoxication when he left Gino’s.