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August 13, 2011

Michigan judge now assailed for sentencing toughness on drunk drivers

Regular readers may recall the buzz and interesting debates surrounding drunk driving sentences in Michigan late last month in the run-up and aftermath of ESPN commentator Jalen Rose's state sentencing on this offense.  This new piece from the Detroit Free Press, which is headlined "Oakland County judge challenged on drunken-driving jail sentences," reports on an interesting epilogue to the story:

A Bloomfield Hills attorney and a Wayne State University law professor are challenging 48th District Judge Kimberly Small's policy of sending first-time drunken drivers to jail, saying she is violating the defendants' constitutional rights and should be barred from hearing such cases.

In a motion filed Wednesday in 48th District Court in Bloomfield Township, attorney Robert Larin and professor Kenneth Mogill argued that Small violates the constitutional rights of defendants by sentencing almost all first-time drunken drivers to jail, often for weeks.

Small, the motion says, is legislating from the bench and is creating mandatory jail time when Michigan law does not require it.  Larin and Mogill argue that she should disqualify herself from hearing the cases because she has made public statements showing what they say is a deep bias on drunken-driving cases.

The motion is filed on behalf of one of Larin's clients, Thomas Cygan, a 67-year-old West Bloomfield man who was recently arrested for the first time on charges of operating while intoxicated.  The case is assigned to Small....

Experts said the motion creates an interesting legal question.  "There are arguments on both sides," said University of Michigan law professor Eve Brensike Primus.  "If a judge is willing to impose a sentence within the statutory limits, then perhaps that is within the judge's province, but if they are compromising fundamental fairness and individual sentencing, that can become problematic."

Larin said he filed the motion "on behalf of anybody charged with a first offense at present, in the past, or in the future." "I have nothing against Judge Small, but it is time this matter is resolved in the courts," he said.

Small's sentencing practices received national attention in recent weeks. On July 27, she sentenced former NBA basketball player Jalen Rose to 20 days in the Oakland County Jail following his arrest in March.  He is expected to be released Aug. 18.

A Free Press review last month of drunken-driving sentences in metro Detroit and nationwide found Small exceeds most judges when sentencing first-time offenders. "We have to decide if we're going to get serious about this or not," she told the Free Press for the article.  Under Michigan law, first-time drunken driving is a maximum 93-day misdemeanor, but there is no minimum mandatory jail time.

The motion filed by Larin and Mogill first will be heard by Small.  If she denies it, they will argue it before Marc Barron, chief judge of the district court.  If he also denies it, the case goes to circuit court and can be appealed to the court of appeals and then to the state Supreme Court.

Defense attorney Steve Fishman, who has handled a variety of high-profile cases in metro Detroit, said he supports the motion.  "The purpose of sentencing is not to send a message to anybody, it's to judge the facts and circumstances of each individual and impose a sentence that is proportional and appropriate," he said.

Others support Small's tough stance on drunken driving.  "Those charged with this offense are a serious threat to the public," Paul Walton, Oakland County's chief assistant prosecutor, told the Free Press.

Because drunk driving consistently results in more death, injuries and property damage than any other single crime, I am a supporter and fan of those who wish to ensure DUI punishments are both tough and effective.  In prior debates over this issue on this blog, many have asserted that jail time is not an effective sanction, though I am not sure if there is data to support this assertion.  I do know that ignition locks have proven effective to reduce repeat drunk driving, and I hope the attention being given to this one judge's DUI sentencing tendency might result in greater attention being given to this useful form of technocorrections.

Some related posts on sentencing drunk drivers and advocacy for ignition locks:

August 13, 2011 at 10:13 AM | Permalink


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To protect the public from the most thoughtless and reckless among us: those who drink and drive--those who have killed and maimed, and will continue to kill and cripple, our children, our parents, and our friends, I propose the following schedule of punishments:

1. 48 hours for the first DUI conviction

2. 90 days for the second DUI conviction

3. six months third DUI conviction

4. two years fifth DUI conviction

5. seven years for the sixth DUI conviction

6. fifteen years for the seventh DUI conviction

Posted by: anon15 | Aug 13, 2011 11:50:50 AM

The left likes drunk driving sentencing severity because it is a big money maker for government. If you stop all cars, 10% of drivers will be legally intoxicated. Obviously the majority of them are harmless, should be left alone after having 2 beers at diner. When they feel impaired, they drive slowly, not aggressively. The damage of driunk driving comes from the same population as the criminals, the client of the lawyer.

Repetitiveness is the key. First offenders should get classes, community service, restrictions. The second offense should require jail time and restrictions on driving such as the interlock. The third should result in forfeitures of licenses, and of cars. Jail time to help the person sounds OK.

General deterrence is unconstitutional. One may not punish a defendant to prevent the future speculative crimes of another.

AS with most advances, they will be technical. The drop in drunk driving deaths is almost all from war generated advances in trauma care. What has been learned in the recent wars may save the lives of 10 or 100 times the number of those who died.

Posted by: Supremacy Claus | Aug 13, 2011 12:49:24 PM

SC, ou must be under the influence yourself. Intoxicated drivers (alcohol primarily) are responsible for carnage on the road. I join with Anon 15.

Posted by: Dave from Texas | Aug 13, 2011 6:19:07 PM

SC, I've got a redneck and am a hard-core gun nut--I'm as right wing as they come and love my beer. But I don't drive when I drink. I'm with Anon15 on this one.

Posted by: Bubba from Georgia | Aug 13, 2011 6:22:27 PM

Most people who get intoxicated, and are normal, want to sleep. A small number want to fight, and get agitated. The Draconian and expensive sentencing after drunk driving should be reserved for the blameworthy. Blame is appropriate after damage. If you cause a crash, and have been drinking, you should enter the DUI money machine for government. If your renewal sticker is in the wrong corner of your license plate, you get stopped, and the officer smells alcohol, you should be left alone.

Say, you do not care about liberty, nor about being left alone by that wholly owned lawyer subsidiary, the government, but you care about law and order. You stop enough middle class people who had 2 beers at dinner and have to spend the rest of the night in the DUI system, you generate hatred for the police, and for the legal system. People will not cooperate with nor financially support an unfair, money making scheme operated in bad faith. It is bad faith to run a system to make $millions, and to lie that it is to enhance safety. All drops in death and injury can be explained by road, auto, and trauma care technological advances. But all our losses of freedom can be explained by lawyer rent seeking.

The US is now more tightly run and has less freedom than the Soviet Union or Cuba. Every block in Cuba has an old lady reporting your statements and jokes to the secret police. Here, we are not only being reported, but sued and prosecuted over a period of 2 years minimum.

I hope everyone can understand how punishing a person to intimidate others who might violate a rule in the future is unfair and violates Fifth Amendment Equal Protection. That point has never been raised in criminal case law. Any statement about general deterrence is grounds for dismissal of the case, being an improper purpose for any prosecution.

Posted by: Supremacy Claus | Aug 13, 2011 8:47:26 PM

I'm an ex-drinker who doesn't touch a drop of anything anymore. It only takes one time of driving when one shouldn't be behind a wheel to cause great tragedy in several lives. With SO many people on the road, perhaps driving this message home in a very severe way will finally make an impact.

Posted by: steveham | Nov 25, 2011 3:05:58 PM

Really informative and useful information.


Posted by: dui defense | Nov 16, 2012 8:26:28 AM

There should not be any concerns as long as the judge is within his legislative sentencing boundaries.

If the defendents had better representation they would not have to worry about even a false ruling holding water.

It sounds like this is a matter of the defendents not presenting the correct defense.

Posted by: Charlie Naegle | Aug 12, 2013 1:30:48 PM

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