STATE OF MICHIGAN<\/p>\n
6TH<\/sup> JUDICIAL CIRCUIT COURT FOR THE COUNTY OF OAKLAND<\/p>\n PEOPLE OF THE STATE OF MICHIGAN<\/p>\n v<\/p>\n KEVIN A. LANDAU,<\/p>\n Defendant.<\/p>\n ______________________________________\/<\/p>\n APPEAL<\/p>\n BEFORED THE HONORABLE RAE LEE CHABOT, CIRCUIT COURT JUDGE<\/p>\n Pontiac, Michigan \u2013 Thursday, November 29, 2007<\/p>\n APPEARANCES:<\/p>\n For the Plaintiff: \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 NICCOLAS J. GROCHOWSKI (P63188)<\/strong> For the Defendant: \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 ARTHUR H. LANDAU (P16381)<\/strong> TRANSCRIBED BY: \u00a0\u00a0\u00a0\u00a0\u00a0 Theresa\u2019s Transcription Service Theresa\u2019s Transcription Service, P.O. Box 21067 TABLE OF CONTENTS<\/p>\n WITNESSES:\u00a0\u00a0\u00a0 PLAINTIFF<\/u>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 PAGE<\/p>\n None<\/p>\n WITNESSES: \u00a0\u00a0 DEFENDANT<\/u><\/p>\n None<\/p>\n OTHER MATERIAL IN TRANSCRIPT:<\/u><\/p>\n None<\/p>\n EXHIBITS:<\/u>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 INTRODUCED<\/u>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 ADMITTED<\/u><\/p>\n None<\/p>\n Theresa\u2019s Transcription Service, P.O. Box 21067 Pontiac, Michigan<\/p>\n Thursday, November 29, 2007 \u2013 9: 41: 10 a.m.<\/p>\n THE CLERK: Calling case People versus Landau,<\/p>\n Docket number 07-DA8602-AR.<\/p>\n Niccolas Grochowski for the People of West Bloomfield.<\/p>\n THE COURT: Okay.<\/p>\n THE COURT: Yes.<\/p>\n THE COURT: I got those.<\/p>\n People v Castle<\/em> indicates that if those chemical test rights were not advised of, then the case must be dismissed. And that\u2019s 108 Mich App 353 (1981).<\/p>\n In addition, your Honor, we are contesting the authenticity of the DataMaster results. I believe that we have to have an evidentiary hearing prior to trial to determine whether or not the DataMaster was properly administered, namely that the operator was properly qualified, that the methods and procedures used in administering the test were in accordance with the Michigan State Police manual for doing that, that a reasonable time elapsed between the time of arrest and the time of giving the chemical test, and the reliability of the DataMaster itself.<\/p>\n We don\u2019t know whether or not, in fact, it was properly administered and whether or not the test was, in fact, a reliable DataMaster result. And in order for the chemical test results to be admissible in evidence those four foundational requirements under People v Krulikowski<\/em>, that\u2019s 60 Mich App 28 (1975) must first be determined. And under MCLA 257.625(a) and (b) it mandates that a defendant be given his chemical test rights at the time the test is being given to him.<\/p>\n And MCLA 257.625(a) and (b) says, I\u2019m quoting to begin with that, \u201cthe arresting officer must advise a person being arrested of — for OUIL of the following test rights.\u201d And it says, \u201cshall be advised,\u201d which is reiterated by the case law in People v Castle<\/em> and so on, that number one, and I\u2019m quoting, \u201cthat if he or she takes a chemical test of his or her blood, urine or breath administered at the request of a peace officer, he or she has the right to demand that a person of his or her own choosing administer one of the chemical tests.\u201d<\/p>\n And two, \u201che has to be advised that the results of the test are admissible in the judicial proceeding as provided under the act,\u201d obviously together with other admissible evidence. These rights were not given to the defendant. He asserts they were not given.<\/p>\n An informal discussing with the arresting officer that I had, he didn\u2019t know whether he gave them to him or not. And that\u2019s what he said to me. He said, I don\u2019t know if I gave them to him or not. And I think we have to have an evidentiary hearing because an evidentiary hearing on both of these issues could very well be dispositive of the case may never go to trial.<\/p>\n And, and what I\u2019m asking for, your Honor, is that if we\u2019re not allowed to have an evidentiary hearing of this kind to determine these things, then if we go to trial it\u2019s too late. It\u2019s simply too late. These, these are critical items in the defendant\u2019s defense in order to either dispose of the case or properly prepare for trial. And a trial is just simply too late.<\/p>\n And very frankly, your Honor, in 48th<\/sup> District Court before this Judge I don\u2019t think I\u2019m going to get a fair trial. And I\u2019ve never said that before in my entire legal career but I don\u2019t think I can get a fair trial before this Judge. And I, I would ask the court to allow the evidentiary hearing because it could very well be dispositive of the case. It\u2019s something comparable to like a \u2013 in a felony case where you\u2019re contesting the legality of the search and seizure and you have to have an evidentiary hearing to determine whether or not, in fact, it was legal, whether or not all proper procedures were followed in the arrest and in the seizure because that could very well be dispositive of the case.<\/p>\n Or in a Walker hearing where somebody is contesting the voluntariness of his confession, the same thing. If the confession is — was involuntary, then obviously the confession is going be suppressed, that even could be dispositive of the case. Or at least will not allow the admission of evidence that is otherwise inadmissible.<\/p>\n And there\u2019s not much of a difference in a case like this. This could be dispositive of the case and what we\u2019re asking for, your Honor, is a hearing prior to trial because we are contending that defendant was not advised of his chemical test rights, that an informal conference with the officer — he indicated he doesn\u2019t know if he advised him of his chemical test rights at that time.<\/p>\n Also, there was a tape that was taken and for some mysterious reason \u2013 I believe a tape was made of the arrest itself, which really doesn\u2019t show much. And then they go into the station and then when he administers the test and is talking to the defendant, that tape is mysteriously gone. It\u2019s a blank. All we see is a wall. And, your Honor, why that is, I can\u2019t answer it. I can conjecture but I\u2019d much rather not conjecture.<\/p>\n And what I am saying, your Honor, is this is a critical part of, of the defendant\u2019s case in this matter. I would ask that the 48th<\/sup> District Court be reversed and that there be an evidentiary hearing.<\/p>\n Also, your Honor, if the court does see fit to grant our motion I would ask that the court retain jurisdiction of the case once the hearing is held because, again, as of\u00a0 — or, or remand it to a different District Court for a hearing because I don\u2019t think I can get fair hearing before this Judge. Thank you.<\/p>\n THE COURT: Okay. Thank you.<\/p>\n He indicates that in his motion the prosecution has a duty to establish a proper foundation for admission of the DataMaster test results. I agree that we have a duty to lay a proper foundation at trial but not beforehand, your Honor.<\/p>\n What he\u2019s asking the court to order is that we basically have a preliminary exam to determine whether or not the People can lay a foundation for admission of evidence, which we believe in \u2013 believe we\u2019d be able to do, no problem, but that\u2019s \u2013 by giving a blank statement that, hey, they have to prove it at trial so I want them to approve it ahead of time. Doesn\u2019t necessarily raise a question of law for a Judge to determine in a case.<\/p>\n I\u2019m not here saying today or claiming that he\u2019s not entitled to an evidentiary hearing, I\u2019m saying that in the form and fashion that he presented his arguments to the court in this case, he\u2019s not entitled to an evidentiary hearing. I\u2019ve never heard of somebody saying, well, your Honor, he has to, he has to admit that evidence into trial so I want you to determine whether it\u2019s admissible or not. He\u2019s not specifically challenged any particular rule violation. He has today, your Honor, he claims that the officer — today, he claims that the officer never read him chemical test rights. That was never brought up in the original motion nor do I believe it was brought up on the Record at the original court hearing where the Judge denied his request for the evidentiary hearing.<\/p>\n In number two he says the prosecution has a duty to provide defendant with exculpatory evidence. Your Honor, we happily provided the defense counsel every single thing we have in our possession with regard to this case, including going above and beyond that DataMaster logs, the defendant\u2019s advice of rights, a copy of which was given to him at the time, and everything else which would normally come with that.<\/p>\n In number three, the arresting officer has the duty to provide the defendant with his chemical test rights. I\u2019m not sure what he was claiming by that. Whether he\u2019s claiming as he is today that they were never read to him. I read that as saying, we\u2019re obligated to provide to him a copy of it, which we have done, your Honor.<\/p>\n And then he goes into again, these, these \u2013 the administrative rules for admission of the DataMaster test. And, quite frankly, he\u2019s not challenged anything in the lower court that would lead a Judge to waste the time and have an evidentiary hearing. And some of those claims are no longer legitimate claims with regard to, lets say it was given within a reasonable time frame. As your Honor probably well knows, there\u2019s recent court case law that basically says that that\u2019s no longer necessarily a requirement. It goes to weight but it doesn\u2019t necessarily go to the admissibility of the DataMaster results.<\/p>\n And more frankly, after post-wager cases, really the only requirement to satisfy a simple relevance for admission of the DataMaster results under MRE 401 and 402. So I find it quite odd that we\u2019re here today to basically prove my case before the trial. It \u2013 the defendant has absolutely every right at trial to object to the admission of the DataMaster results. Every case that talks about admitting DataMaster results is a challenge after the trial. The attorney during the trial objects to the admission for lack of laying a foundation, relevance and reliability and then it\u2019s appealed to the higher court. But I\u2019ve not quite heard — if your Honor was to rule this way, it would essentially indicate that in every misdemeanor drinking and driving case, that we would have an obligation such as a preliminary exam to prove that the DataMaster results are admissible.<\/p>\n I think, and again your Honor, I think it\u2019s the form in which it was presented to the District Court in this case that does not lend itself to an evidentiary hearing in this matter. This is somewhat the first time I\u2019ve heard \u2013 and when I read his brief, which was not discussed at the lower court level, that the defendant in this case is claiming the officer did not read him his DataMaster \u2013 or DataMaster test re \u2013 or chemical test rights. Which, in the report it clearly states he did. Maybe at the time he had this informal conversation he just didn\u2019t recall because he hadn\u2019t reviewed his report. But he certainly indicated to it in the report. We certainly have the hard copy at the police department, your Honor. Defense counsel was provided with that copy. So I see it as a waste of the court\u2019s time, your Honor, with regard to how it was presented.<\/p>\n Everything in this, in this transcript and in the brief is argued at that motion. So where he comes up with what he\u2019s saying, I don\u2019t know.<\/p>\n But in addition, your Honor, the arresting officer indicated to me that the following morning after the arrest \u2013 the arrest was at 12:22 a.m., the following morning after the arrest is \u2013 he recalls giving him his advice of chemical test rights. The following morning. That\u2019s eight hours later. That\u2019s way beyond the time that a person can exercise the rights to which he\u2019s entitled under MCL 257.625(a) and (b).<\/p>\n So, counsel is, is mistaken relative to what has transpired, relative to what was argued at that motion, because I argued these issues at length on February 12th<\/sup> at that motion. Thank you, your Honor.<\/p>\n THE COURT: Okay. This is defendant\u2019s appeal on leave granted from the 48th<\/sup> District Court. Defendant is charged with OUIL in the 48th<\/sup> District. Defendant filed a motion seeking an evidentiary hearing prior to the trail in order to challenge the admissibility of the DataMaster test results. The trial court denied the request for an evidentiary hearing and indicated a decision in the admission of the results would be made at the time of trial.<\/p>\n Defendant filed an application for leave to appeal to this court, which was granted. The prosecution has filed a response to the appeal note \u2013 indicating there is nothing to support defendant\u2019s contention that an evidentiary hearing is mandated prior to trial.<\/p>\n Defendant first alleges the prosecution must lay the proper foundation before the DataMaster results can be introduced into evidence. This is a correct statement of the law and is set forth in People v Krulikowski<\/em>, 60 Mich App 28, a (1975) case. However, there is nothing presented to indicate the prosecution must lay the proper foundation prior to trial.<\/p>\n I and my legal staff were unable to locate any support for that position in independent research, not just relying on the briefs.<\/p>\n Thus, defendant\u2019s claim of error in the trial court\u2019s refusal to grant an evidentiary hearing is without merit.<\/p>\n Defendant also argues the trial court erred in not conducting an evidentiary hearing on a second basis. Defendant alleges the arresting officer failed to read his chemical test rights to him thus depriving him of the right to seek an independent blood alcohol test after submitting to the DataMaster. Defendant contends that if the testimony at the hearing shows the officer failed to administer the chemical test rights, he\u2019s entitled to a dismissal of the charge.<\/p>\n However, the Michigan Supreme Court held in People v Anstay (ph), 476 Mich 436, a (2006) case, that the appropriate remedy for failure to provide the chemical test rights is not dismissal of the charges but rather a jury instruction that the defendant\u2019s right was violated and the jury can determine how much significance to attach to that fact.<\/p>\n Thus, the denial of an evidentiary hearing prior to the trial to determine the admissibility of the DataMaster results is not reversible error.<\/p>\n This court is going to affirm the District Court.<\/p>\n THE COURT: Sounds crazy to me too but that\u2019s the law.<\/p>\n THE COURT: Right.<\/p>\n THE COURT: what kind of stay were you asking for?<\/p>\n THE COURT: What kind of stay are you asking for, how long?<\/p>\n THE COURT: That\u2019s what happens at District Court.<\/p>\n THE COURT: I understand.<\/p>\n THE COURT: Okay. Okay. I\u2019ll grant a 90 day stay.<\/p>\n THE COURT: Thank you.<\/p>\n THE COURT: Yes.<\/p>\n (At 10:02:05 a.m., hearing concluded)<\/p>\n Theresa\u2019s Transcription Service, P.O. Box 21067 CERTIFICATION<\/p>\n This is to certify that the attached electronically recorded proceeding, consisting off eighteen (18) pages, before the 6th<\/sup> Judicial Circuit Court, Oakland County in the matter of:<\/p>\n PEOPLE OF THE STATE OF MICHIGAN<\/p>\n v<\/p>\n KEVIN A. LANDAU<\/p>\n _______________________________\/<\/p>\n Location: Circuit Court<\/p>\n Date: Thursday, November 29, 2007<\/p>\n was held as herein appeared and that this is testimony from the original transcript of the electronic recording thereof, to the best of my ability.<\/p>\n I further state that I assume no responsibility for any events that occurred during the above proceedings or any inaudible responses by any party or parties that are not discernible on the electronic recording of the proceedings.<\/p>\n __________________________ Theresa\u2019s Transcription Service, P.O. Box 21067 <\/p>\n","protected":false},"excerpt":{"rendered":" STATE OF MICHIGAN 6TH JUDICIAL CIRCUIT COURT FOR THE COUNTY OF OAKLAND PEOPLE OF THE STATE OF MICHIGAN v KEVIN A. LANDAU, Defendant. ______________________________________\/ APPEAL BEFORED THE HONORABLE RAE LEE CHABOT, CIRCUIT COURT JUDGE Pontiac, Michigan \u2013 Thursday, November 29, 2007 APPEARANCES: For the Plaintiff: \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 NICCOLAS J. GROCHOWSKI (P63188) 30700 Telegraph Road, Suite 3420 … Continue reading “2008-01-03 TRANSCRIPT APPEAL 11-29-07 041957203”<\/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-9","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/kevinalandau.lol\/index.php?rest_route=\/wp\/v2\/pages\/9","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=9"}],"version-history":[{"count":0,"href":"https:\/\/kevinalandau.lol\/index.php?rest_route=\/wp\/v2\/pages\/9\/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=9"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
\n30700 Telegraph Road, Suite 3420
\nBingham Farms, MI 48025
\n(248) 540-3366<\/p>\n
\n29777 Telegraph Road, Suite 2500
\nSouthfield, MI 48034
\n(248) 948-0893<\/p>\n
\nSally Fritz, CER #7594
\nP.O. Box 21067
\nLansing, Michigan 48909-1067<\/p>\n
\nLansing, Michigan 48909-1067, 517-882-0060<\/p>\n
\nLansing, Michigan 48909-1067, 517-882-0060<\/p>\n\n
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\nLansing, Michigan 48909-1067, 517-882-0060<\/p>\n
\nSally Fritz, CER #7594
\nCertified Electronic Recorder
\nDated: December 27, 2007<\/p>\n
\nLansing, Michigan 48909-1067, 517-882-0060<\/p>\n