STATE OF MICHIGAN
\nIN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND
\nPEOPLE OF THE TOWNSHIP
\nOF WEST BLOOMFIELD
\nPlaintiff,
\nvs,
\nKEVIN AARON LANDAU,
\n\tDefendant,
\n________________________________\/
\nNICCOLAS J. GROCHWOSKI. (P63188)
\nAttorney for Plaintiff
\n30700 Telegraph Road, Suite 3420
\nBingham Farms, MI 48025-4590
\n(248) 540-3360
\n—————————————————–
\nARTHUR H. LANDAU (P16381)
\nAttorney for Defendant
\n29777 Telegraph, Suite 2500
\nSouthfield, MI 48034
\n(248) 948-0893
\n_________________________________\/
\nMOTION FOR RECONSIDERATION
\n\tNOW COMES Defendant. KEVIN AARON LANDAU. By and through his attorney. ARTHUR H. LANDAU, and in support of his motion for reconsideration of this Court\u2019s Order affirming the 48th District Court\u2019s Order denying defendant an evidentiary hearing on the admissibility of Datamaster results and on the officer\u2019s failure to advice Defendant of his chemical test rights, says as follows:
\n1.\tThis is an OUIL case, presently pending in 48th District Court before Judge Diane Dickow D\u2019Agostini. <\/p>\n
2.\tOn March 28, 2007. Defendant filed a Claim of Appeal in Oakland County Circuit Court from the trial court\u2019s Order of March 22, 2007. Denying defendant\u2019s motion for an evidentiary hearing relative to the evidential breath alcohol test and defendant\u2019s assertion that he was not advised of his chemical test rights. <\/p>\n
3.\tThe Honorable Rac Lee Chabot, Oakland County Circuit Court Judge, on April 2, 2007, ordered a stay of proceeding in 48th District Court until this appeal has been decided. <\/p>\n
4.\tOn April 18, 2007, Judge Chabot granted defendant\u2019s application for leave to appeal.
\n5.\tOn May 15, 2007, defendant filed a Brief with Judge Chabot an November 29, 2007. After oral argument. Judge Chabot denied defendant\u2019s appeal of the decision of 48th District Court denying an evidentiary hearing. <\/p>\n
6.\tAs part of the Court\u2019s decision of November 29, 2007, a 90 day stay of proceedings was granted to pursue an appeal. <\/p>\n
7.\tAt the hearing before this Court on November 29, 2007, Judge Chabot cited the case of People v Anstev, 475 Mich 436 (2006), as requiring this Court to deny Defendant\u2019s appeal. <\/p>\n
8.\tOn January 24, 2008, the Court of Appeals issued the following Order, which is attached to this motion. \u201cThe Court orders that the application for leave to appeal is denied for failure to persuade the Court of the need for immediate appellate review.\u201d<\/p>\n
9.\tHowever, in People v Anstey, supra. At page 450, the Supreme Court held that when a Defendant argues before trial that he or she was deprived of a reasonable opportunity for an independent chemical test, the trial court must determine after an evidentiary hearing if necessary, whether defendant was deprived of this statutory right and if there was a violation to inform the jury of the violation and instruct the jury to determine the weight to give to it. <\/p>\n
10.\tThe Supreme Court in Anstey at page 450, held;
\n\u201cThe jury should be permitted to weigh the police officer\u2019s wrongful conduct as well as the statutory right that the officer denied. When the defendant argues before trial that he or she was deprived of a reasonable opportunity for an independent chemical test, the trial court must determine, after an evidentiary hearing if necessary, whether the defendant was in fact deprived of this statutory right. If the court determines that a statutory violation occurred, then it is free, upon request of defense counsel, to inform the jury of this violation and instruct the jury that it may determine what weight to give to this fact. Such a jury instruction is an appropriate consequence for the violation of a mandatory statutory right to a reasonable opportunity for an independent chemical test because it will accord meaning to the right created test because it will accord meaning to the right created in subscription 6(d) without creating a remedy that the Legislature did not intend. A jury instruction will also presumably deter police officers from violating that right in the future.\u201d
\n11.\tAs such, Anstey, supra, addresses the need for an evidentiary hearing prior to trial to determine if a Defendant has been deprived of his statutory right to be advised that he has a reasonable opportunity for an independent chemical test by someone of his own choosing. Defendant has asserted from the beginning of this case that he was never advised of his chemical test rights by the police officer. <\/p>\n
12.\tIn addition, it appears that Anstey does not address whether an evidentiary hearing should be held in order to establish a proper foundation for admission of Datamaster results. <\/p>\n
13.\tDefendant contends that it is a critical right of Defendant to have an evidentiary hearing prior to trial at which Defendant may challenge any chemical tests performed on him at the time of his arrest and whether he was advised of his chemical test rights. Without such an evidentiary hearing it is impossible for Defendant to properly prepare for trial.<\/p>\n
14.\tThe Court of Appeals in the instant case said it was premature to appeal at the present time, leaving in to Oakland County Circuit Court and 48th District Court to do justice. If Defendant is denied an evidentiary hearing on these issues prior to trial, he will have no reasonable opportunity to prepare for and have a fair trial in 48th District Court, and it will be too late for any meaningful appellate review. <\/p>\n
15.\tEven this Court in its decision on November 29, 2007, denying Defendant\u2019s request for an evidentiary hearing prior to trial in referring to Anstey, agrees with Defendant saying, \u201cSounds crazy to me but that\u2019s the law.\u201d<\/p>\n
16.\tHowever, Anstey does provide Defendant with the right to an evidentiary hearing on these issues. <\/p>\n
17.\tA Motion for Reconsideration of the Court of Appeal\u2019s decision of January 24, 2008, was field with the Court of Appeals of February 13, 2008 and as yet there has been no decision from the Court of Appeals on said motion. <\/p>\n
18.\tIn the event this Honorable Court denies Defendant\u2019s motion for stay of proceedings, Defendant respectfully requests a stay of proceedings pending the Court of Appeals\u2019 decision on the motion for reconsideration and, if denied, requests the opportunity to file an Application for Leave to Appeal to the Michigan Supreme Court, citing the Anstey case and respectfully requests a further stay of proceedings while Defendant exhausts his appellate remedies to the Michigan Supreme Court. <\/p>\n
WHEREFORE, Defendant respectfully request that his motion be granted. <\/p>\n
\t\t\t\t\t\tRespectfully submitted, <\/p>\n
\t\t\t\t\t\t________________________________
\n \t\t\t\t\t\tArthur H. Landau (P16381)
\n \t\t\t\t\t\tAttorney for Defendant
\n \t\t\t\t\t\t29777 Telegraph, Suite 2500
\n \t\t\t\t\t\tSouthfield, MI 48034
\n \t\t\t\t\t\t(248) 948-0893
\nDate: February 19, 2008\t<\/p>\n","protected":false},"excerpt":{"rendered":"
STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND PEOPLE OF THE TOWNSHIP OF WEST BLOOMFIELD Plaintiff, vs, KEVIN AARON LANDAU, Defendant, ________________________________\/ NICCOLAS J. GROCHWOSKI. (P63188) Attorney for Plaintiff 30700 Telegraph Road, Suite 3420 Bingham Farms, MI 48025-4590 (248) 540-3360 —————————————————– ARTHUR H. LANDAU (P16381) Attorney for Defendant 29777 Telegraph, Suite … Continue reading “2008-02-20 Motion Filed For Defendant for Stay of Proceedings 042220888”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"parent":6,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"class_list":["post-27","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/kevinalandau.lol\/index.php?rest_route=\/wp\/v2\/pages\/27","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/kevinalandau.lol\/index.php?rest_route=\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/kevinalandau.lol\/index.php?rest_route=\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/kevinalandau.lol\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/kevinalandau.lol\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=27"}],"version-history":[{"count":0,"href":"https:\/\/kevinalandau.lol\/index.php?rest_route=\/wp\/v2\/pages\/27\/revisions"}],"up":[{"embeddable":true,"href":"https:\/\/kevinalandau.lol\/index.php?rest_route=\/wp\/v2\/pages\/6"}],"wp:attachment":[{"href":"https:\/\/kevinalandau.lol\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=27"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}