Will Defend You, PLLC earns dismissal in Oak Park DUI Case:
On January 29, 2016 in the early morning our client, who we will call A for privacy concerns, was arrested on the suspicion of operating a motor vehicle while intoxicated under MCL 257.625. Unfortunately, A was on parole due to an earlier charge unrelated to this new charge. Because of that, A was ultimately picked up on the suspicion of a parole violation and eventually sent back to prison.
Despite this, A’s initial pre-trial was set for February 24, 2016. Because of his/her imprisonment, A was unable to appear for the initial pre-trial. However, A attempted to, and eventually succeeded in notifying the prosecutor, as well as the court, that the reason for his/her non-appearance was due to his/her incarceration.
Once retained, and after looking through the court file, it became clear that A, with the help of the Michigan Department of Corrections, “caused to be delivered” a request for a final disposition, which was “accompanied” by a verification of incarceration. This notice was sent to both the prosecutor in the case, as well as the court.
MCL 780.131: A misunderstood statute
MCL 780.131 provides:
[w]henever the department of corrections receives notice that there is pending in this state any untried warrant, indictment, information, or complaint setting forth against any inmate of a correctional facility of this state a criminal offense for which a prison sentence might be imposed upon conviction, the inmate shall be brought to trial within 180 days after the department of corrections causes to be delivered to the prosecuting attorney of the county in which the warrant, indictment, information, or complaint is pending written notice of the place of imprisonment of the inmate and a request for final disposition of the warrant, indictment, information, or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time or disciplinary credits earned, the time of parole eligibility of the prisoner, and any decisions of the parole board relating to the prisoner. The written notice and statement shall be delivered by certified mail.
Further, MCL 780.133 states:
In the event that, within the time limitation set forth in section 1 of this act, action is not commenced on the matter for which request for disposition was made, no court of this state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
Now, with that said, not many attorneys, nor judges know about this law, and if they do, they do not understand it. It is a very niche issue. This is because it is not often that a prisoner of the state will have new charges pending while already incarcerated in state prison. But it does happen; often in the same way that it happened to A. And although it is a niche issue, it involves a very powerful statute. Powerful in what way? Well, if followed correctly, it results in a dismissal with prejudice. Which means that the dismissal is final. If it were dismissed, but dismissed without prejudice, the prosecutor, or city attorney, could try the case again.
DUI Dismissed with Prejudice under MCL 780.131:
On July 19, 2017 the Honorable Judge Appel heard oral arguments at the 45th District Court in Oak Park, Michigan. After hearing arguments from both parties, the Court agreed with the Defense and incorporated the Defendant’s argument by reference, adopting the legal argument and conclusion. Ultimately, the Court found that the 429 day delay was in violation of MCL 780.131, holding that the case be dismissed with prejudice.
45th District Court Changes Policy:
When we initially inquired into why A was not brought from state prison to the 45th District Court, we were informed by both the city attorney and the clerk that it would be against the Court’s policy to writ a prisoner for a misdemeanor charge, as it would result in overtime being paid to police officers of the city.
After arguments on 7/19/17, the Honorable Judge Appel, the Chief Judge for this District, initiated a change to this policy. The 45th District Court will now writ prisoners of the state that follow the proper procedure required by MCL 780.131. This will allow the prisoner to have their charges served concurrent if possible, which was the ultimate purpose of MCL 780.131.
If you are on parole and are facing new charges, contact attorney Will Nahikian today. Let me fight for your interests in court and help you get on with your life. Call me today at 248-227-1978, or set up a free initial consultation.