Spotlight On: Michael J. Nichols

Please tell us about your background, your practice, and how long you have been a criminal defense lawyer.
I grew up in a rural area of northern Michigan to which my parents moved from Detroit to help my grandfather run a campground/mobile home park.  He and my grandmother purchased the park to help subsidize an early retirement due to health problems.  He needed help with the manual labor of running this park and that’s where we came in.  I developed a disdain for manual labor, but a respect for it, and for those who do it.  My parents made it clear to me that they could not afford to send me to college and I had no interest in it other than wanting to play sports.  I had neither the size nor the talent for the sports part and I did not have the talent or desire for the academic part.  I decided to go into radio broadcasting after high school, and entered a program at Kirtland Community College that required me to take courses and also work at a radio station in Grayling.  It was the best thing that happened to me academically.  I developed an appreciation and a respect for learning things.
I moved to the Lansing-area to take a job at a small AM radio station and took about a year and a half off from school.  I got a job at the Michigan News Network in Lansing and went back to school at Lansing Community College.  From there, I continued working for the MNN and transferred to Michigan State University.  I graduated with a BA in Poli Sci Pre-Law in 1993.
I took a job at WWJ radio in Detroit briefly, then returned to Lansing to work at WILX TV as a reporter.  In 1995, the husband of one of the anchors convinced me to go to Cooley Law School at night.  It took me just under 4 years to finish law school going 2 nights a week.
I then went to work for a general practice lawyer and we formed a partnership with one of my classmates.  It was a disaster.  However, I had a chance to try two criminal cases.  I got a job with Frank Reynolds after about 10 months in the practice and fell in love with criminal practice.  I was at the CDAM fall conference in 2006 when I heard Pat Barone speak along with Don Ramsell of Illinois and Jim Nesci of Arizona about focusing my practice on DUI defense.  That’s when I decided to be a DUI lawyer.  I still have a few cases that are non-DUI cases so that I can exercise different muscles in my brain from time to time, but by and large, DUI is what I practice.
You recently won a significant victory in the 79th District Court, in [People v Jabrocki, No. 08-5461-FD, 5/06/2011, available from the CDRC]; please tell us about it.
It is about Daubert [Daubert v Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993)], when you get right down to it.  The state’s forensic alcohol toxicology unit does not report the margin of error with its results.  Not only is the error rate a Daubert factor, but the “uncertainty budget” from which the error rate is derived is a required lab practice under the new accreditation standards.  These standards are called the ISO 17025, and they were adopted by the body that accredits the Michigan State Police Crime Lab.  The MSP lab director at the time, Felix Adatsi, PhD, refused to acknowledge an error rate and adamantly testified that the lab did not have an uncertainty budget at the relevant time period.

The case was charged as an OWI III with an alleged blood alcohol estimate of .29.  The client was arrested on November 1, 2008.  It is still scheduled for trial, so I should refrain from disclosing too many specifics from there.

What role did the experts have in the case?
The most important role was to help me prepare to cross Dr. Adatsi.  There was quite a bit of testimony that we presented.  Ultimately, the testimony that we presented was to show the judge the sources of error and how an uncertainty budget works.  I consulted with many experts from around the country.
Drunk-driving laws seem to change with some frequency; what trends have you seen in recent years?
There are two predominate changes: 1) the chemical test “presumption” language of MCL 257.625 affects the argument that the accused was below the limit while behind the wheel, but the level later increased; and 2) more and more courts are getting into the treatment business via sobriety court and interlock legislation.
A lot of so-called experts like to boast about the lack of recidivism among sobriety court participants.  There is no reliable data in my view, to predict whether someone will relapse and drive or when that will happen.  That goes well beyond your question, but my point is this: the underlying tenet of the treatment program is “one day at a time.”  Don’t tell me how great your sobriety court is because it keeps drunk drivers off the road.  It may give people tools to avoid relapse because of the incentive, but from there, it’s no more effective than any other type of probation.

What advice do you have for other defense attorneys?
Find some area that you love and work your butt off at it.  There is both a need and a demand for specialization.
Any special advice for new attorneys?

You are a lawyer.  You have a duty to tell someone what’s right when they are wrong.

Mr. Nichols' websites:  http://www.nichols or http://www.michigandrunkdriving
by Neil Leithauser
Associate Editor