Please tell us about your background, where you practice, and how long you have been a criminal defense lawyer.

I've been a practicing attorney for 25 years, with an office in Sterling Heights, Macomb County, Michigan, since 1994.  I graduated from the University of Detroit, School of Law, began practice in 1987 as a Court of Appeals Pre-Hearing Attorney, am a CDAM member, a former MAACS attorney, and I have been taking criminal appointments since 1994.

You recently obtained a favorable result after a jury trial in Macomb County Circuit Court; please tell us about the case.

The case was People v. Colin Bradford Green (Macomb Circuit Case No: 2010-52170FH, Judge James Biernat, Jr.), and involved an incident following an auto accident in Mount Clemens.  The accident took place at 3:00 in the afternoon, and it was not disputed that Mr. Green, (then 19 years old), ran a red light and struck another vehicle, killing the driver, a 32 year-old mother of 3.  Witnesses testified that there was no attempt by Mr. Green to brake for the red light.

An alcohol test following the accident revealed nothing.  A blood test was taken 3 hours after the accident and later tested.  Results were sent to the Macomb County Prosecutor after May 4, 2010.  The result showed 1 ng/ml of active THC, and 9 ng/ml metabolites (inactive residue of THC).  In June, 2010, Mr. Green was charged with Count I: OWPCS Causing Death (operating With The Presence of a Schedule 1 or 2 cont. subst.), MCL 257.625(4)(a), (8), a 15-year felony, and Negligent Homicide, MCL 750.324 (a 2-yr misdemeanor, now repealed).  The defense motioned for an independent blood test, and the Prosecutor stipulated to an Order for an independent test.  On 10-14-10, NMS Labs (in Philadelphia) tested the blood sample with the result of 0 ng.ml of active THC and 11 ng/ml metabolites.

Any plea offered by the prosecutor included a plea of guilty to the 15-year felony OWPCS Causing Death.  A plea would have resulted in prison sentencing guidelines.  No plea agreement was reached.

The trial resulted in Not Guilty on Count I: OWPCS Causing Death, and Guilty on Count II: Negligent Homicide.  The Jury deliberated for 2 ½ days.  Mr. Green’s sentencing guidelines are 0 to 9 months instead of a prison sentence.

What were the issues in the case?

1)  Strict Liability Statute

The defense attacked the OWPCS Causing Death as being an unconstitutional strict liability statute.  Case law provides that the prosecutor need not show “beyond a reasonable doubt that defendant knew he or she might be intoxicated.”[People v. Derror,  475 Mich. 316, 341-341 (2006), rev’d on other grounds People v. Feezel, 486 Mich. 184 (2010)].  The lead case, People v. Quinn, 440 Mich. 178 (1992), recognized that certain strict liability criminal statutes fit within constitutional analysis.  The constitutional tests are two-fold, a historical “common law” approach [Morisette v. U.S., 362 U.S. 246 (1952)], and the here-dubbed “balancing” approach [Holdridge v. U.S., 282 F. 2d 302 (CA 8, 1960); U.S. v. Wulff, 758 F. 2d 1121 (CA 6, 1985)].  In upholding the constitutionality of the Negligent Homicide statute, the Michigan Court of Appeals employed the “balancing” approach, recognizing that certain malum prohibitum acts would be unconstitutional without a scienter requirement, but finding that the negligent homicide penalty, (2-year misdemeanor), was relatively small, that a conviction did not gravely besmirch the defendant, and that the law was constitutionally valid [People v. Olsen, 181 Mich. App. 348 (1989)].  The defense in Green argued that a 15-year felony was dramatically different than a 2-year misdemeanor, but the Macomb Circuit Court denied a motion to dismiss.  An interlocutory leave to appeal the issue was denied by the Court of Appeals.

2)  Independent Test and Metabolites

 At the heart of the trial was the MSP blood test, 1ng/ml for “active” THC, and the independent test, NMS Labs, (Philadelphia, PA), of 0 ng/ml of “active” THC.  At trial, the Prosecutor argued that the independent NMS test was compromised.  They suggested that a 9-month delay in the independent test resulted in a lower “active” THC result.  MSP Toxicologist Geoffrey French claimed that in the MSP lab, tests on old blood samples conducted as part of training employees revealed that one or two year old blood samples yielded lower active THC results from the original tests.  He suggested that degradation is expected within 6 months of the blood draw.  No study or records of this claim was presented at trial, and French admitted that he had none, but that a study was considered.  The Court allowed testimony about degradation despite claims of speculation and lack of foundation.

 The defense argued that any delay in the independent blood test was solely attributable to police and the prosecutor.  (Mr. Green was charged nearly 5 months after the accident, and the prosecutor stipulated to independent test 8 months after blood draw).  The defense requested dismissal based on prejudice [Ref. types of prejudice in People v. Kilgore, 103 Mich. App. 812 (1981), and dismissal for lost evidence authorized in DNA case, People v. Dungey, 147 Mich. App. 83 (1985)], or an instruction based on prejudice caused by delay [Pros. has burden of showing reason for delay sufficient to justify whatever prejudice resulted, People  v. Bisard, 114 Mich. App. 784 (1982), similar to that of Michigan Civil Instruction CivJI 6.01].  Both of the defense’s requests were denied.

The defense motioned for exclusion of evidence of metabolites.  Metabolites are the by-product of active THC, and pursuant to Feezel such evidence is not admissible to show presence of marijuana.  The Prosecution argued that evidence of metabolites (THC-COOH) should be introduced at trial, claiming that the MSP blood test revealed active TCH of 1 ng/ml and metabolites of 9 ng/ml, and that the NMS independent test showed metabolites of 11 ng/ml.  The suggestion was that the 1 ng/ml active THC somehow metabolized prior to the independent test, making the active THC level 0 ng/ml and increasing metabolite level from 9 ng/ml to 11 ng/ml.  This argument was offered at an evidentiary hearing.  Toxicologist French speculated that degradation could have occurred, even though “metabolism” occurs typically in the body, and that “active” THC would have to metabolize twice for the measured amount of metabolites to increase.  The Trial Court denied admissibility based on Feezel, and speculation by the expert.  The prosecutor sought Interlocutory Leave to Appeal to the Court of Appeals, but it was denied.

What did you learn from the case?

Things to Take From The Case:

Make a Motion for an Expert.  Clearly experts were needed in the case.  I am Court Appointed, and needed to request fees, but they were granted.  The defense expert from NMS labs testified via skype, saving on the costs.

Get an Independent Test.  The Not Guilty verdict on the OWPCS Causing Death charge was only possible with the independent test.  Make the request early to avoid claims that delay can cause degradation.  In this case, NMS labs was the same lab where the Macomb coroner’s office sends tests.  The credibility of the lab could not be disputed without the prosecutor impeaching their own coroner’s report.

Make the Constitutional challenges.  This case seemed headed to the Court of Appeals.  The case approach was to preserve the issues.  With the possibility of passive inhalation, medical marijuana, a strict liability statute, and prejudice due to prosecutor’s delay, this was an appropriate case to preserve everything.  The good appeal fact would have been the lowest measurable level of active THC, 1 ng/ml.  It could have made some good law if the COA had reviewed a conviction and reversed.

File Motions In Limine.  Pre-trial motions set this case up to be argued effectively at trial.  The exclusion of metabolites would not have been possible without a motion in limine and the evidentiary hearing prior to trial.  In this case, the prosecutor’s attempt to get around Feezel, supra, and introduce metabolite evidence was defeated due to the initial motion in limine, evidentiary hearing and resulting testimony.  This directed the theory of the case and needed to be completed prior to trial.

Mr. Tomko's website:  http://www.tomkolaw. com/ Thomas J. Tomko, 39850 Van Dyke Ave.,  Sterling Heights, MI 48313 (586) 795-8822 email:  tjtomkolaw@aol.com

by Neil Leithauser
Associate Editor
 

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