Michigan criminal code encroaching on civil liberties

Phil Power and I were on the same wavelength last week, frustrated by the proliferation of often absurd crimes in the Great Lakes State (“Crime Crime Everywhere”). I don’t need to add to Mr. Power’s list, but suffice it to say that the Michigan Penal Code contains about 918 sections, which is eight times the number of the Model Penal Code and, with 3,100 identified criminal offenses, far more than nearby Ohio, Illinois and Wisconsin. It seems that those in the Michigan legislature believe if we propose and pass laws often enough, nothing bad will happen.

On the contrary, not only are bad things continuing to happen, but newly introduced laws are seriously encroaching on the civil liberties of Michigan residents. For example, on January 12, 2015, Gov. Snyder announced legislation allowing DNA samples to be collected at the time of arrest for all felonies. Touted as a public safety boost by the Governor, even a wrongful arrest under this new law results in DNA collection without a warrant or search warrant.

The DNA swab is the most startling example of a law that was passed despite immediate and obvious civil liberties implications. Michigan also recently passed a law requiring drivers to perform field sobriety evaluations, i.e., roadside gymnastics and acrobatics. Under this law, a citizen no longer has the right to refuse the field sobriety test without penalty, which may include a civil infraction violation and a fine. Many don’t understand that even sober individuals have varying degrees of success in passing such tests. No one wants to be soft on drunk drivers, but at what point is the balance tipped too far in favor of policing agencies, with their tremendous power and authority, and away from individual rights?

Here’s an interesting story about what I see as a complete infringement of civil liberties. I recently received approval to retrieve the blood samples of an acquitted client after obtaining an order compelling the Michigan State Police Department to do so. Initially, the department refused and claimed the blood drawn from the client belonged to the prosecuting agency or the arresting agency, but I proved there was no law supporting the department’s claim. The department also claimed there is a policy that all blood samples must be kept for two years even if a person is acquitted of a crime. Again, I found no law supporting that.

If you were acquitted of a crime, would you want your blood samples stored in a crime lab, not knowing when the police could use those samples again to help solve future crimes? Who is to say in a week, month or years down the road when the police are looking for a suspect, they won’t start running tests against all the blood samples in the lab? It’s this unknown factor that infringes on people’s rights - and it’s wrong. (There ought to be a law!)

From the trenches where I live and breathe, life can get ugly, but one is still innocent until proven guilty. Let’s not allow Michigan lawmakers to forget that.

In the meantime, I hope for something different and work toward fewer laws and greater respect for civil liberties. That’s it for now, though. I have to go defend someone who seduced an unmarried woman which can also be a felony in Michigan. Seriously. Where do we draw the line?

Neil Rockind is a criminal defense attorney based in Southfield. He is a former assistant prosecutor in Oakland County.

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Thu, 01/29/2015 - 10:57am
On a similar note I was disappointed that Governor Snyder signed legislation singling out the poor as probable drug users, when there is no evidence to support this. Just the fact that you are poor and receiving public assistance (living off the tax payers) "means" you are more likely to use illegal drugs and subject to random testing. Since the Governor and his fellow ELECTED office holders are also feeding at the public trough, I think it would only be fair that they also be subject to random drug testing. Why not level the playing field? I expect that the backbone isn't there to do this.....
Thu, 01/29/2015 - 12:25pm
Seems right to me that all elected officials, at any level, should have to submit to random blood and alcohol tests. When I was working, I had to do so for the sole reason that I possessed a CDL (Commercial Drivers License). Without warning, I had to breathe in the tube or pee in the cup yearly. Refusing to do so could result in termination of employment, while failing to pass would result in losing the license. But of course those that make these laws are also excluded from these laws. Everybody should resolve to write a letter today to their councilperson, legislator, or elected leaders to correct this.
Charles Richards
Thu, 01/29/2015 - 12:52pm
Mr. Rockind makes much of the police retaining a blood sample drawn from an individual who was acquitted. Why? Is there any possibility of that blood sample being used to wrongfully convict someone of a crime? Doubtful. Whatever possibility there is of a false positive is negligible and is easily outweighed by the benefits of solving a crime.
John Q. Public
Thu, 01/29/2015 - 4:50pm
Sure--until that false positive comes from YOUR blood. There's no limit to how safe government can keep us, provided we cede sufficient liberty.
Michael Kiella
Sat, 01/31/2015 - 4:16pm
Amendment IV (The United States Constitution) The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ***** In order to retain any blood or DNA sample from an acquitted person reduces the security of the individual and presumes that that individual will again be charged with a crime. The first warrant does not apply to the second probable cause. This is the definition of unreasonable. Unless of course, there is a presumption of guilt. Secondly, DNA contains far more information than just identity. I for one, do not want that information available as a public record without my permission.
Arlene Gorelick
Thu, 01/29/2015 - 1:52pm
Another issue that needs to be addressed is the change in the definition of DUI in Michigan. Persons with virtually any pharmaceutical in their bloodstream can be construed to have impaired driving. The result of this is that persons with anti-seizure medications in their blood can be convicted of DUI. Persons with epilepsy could not drive without these medications. This needs to be changed.
John Q. Public
Thu, 01/29/2015 - 4:44pm
I can't seem to convince enough people--or even anybody--to stop casting ballots that place cops and prosecutors in the legislature and judiciary.
Richard McLellan
Sun, 02/01/2015 - 1:02pm
We all have to recognize that the U.S. has become a surveillance state since 9-11 with widespread public support. But the continuing erosion of civil liberties should be a concern. Preserving the constitutional rights of citizens is one of the few policy areas where many conservatives and progressives agree. Preserving blood samples of someone not subject to prosecution is an example of government overreach.