As statistics, injuries and deaths mount, distracted driving is evolving from minor ordinance violation to misdemeanor and, in some cases, felony status. Hand-held devices and on-board computing, while very useful and powerful these days, distract drivers from their primary task: staying focused on the road at all times.

Operating a cell phone has been prohibited by the Motor Vehicle Code in Michigan since October 2013. The applicable language of the Code provides:

Except as otherwise provided in this section, a person shall not read, manually type, or send a text message on a wireless 2-way communication device that is located in the person's hand or in the person's lap, including a wireless telephone used in cellular telephone service or personal communication service, while operating a motor vehicle that is moving on a highway or street in this state. As used in this subsection, a wireless 2-way communication device does not include a global positioning or navigation system that is affixed to the motor vehicle.

Statistics now reveal that as many as one in four vehicle accidents are caused by a distracted driver. There are many forms of distracted driving:

• cell phone use of any kind; 
• GPS input on vehicle dash or device;
• tending to the vehicle console in any way, including changing a radio station;
• hands-free interaction with the vehicle console;
• eating;
• reading documents; and
• talking to passengers in a manner that takes your eyes from the road ahead.

Even for those not driving, but texting someone whom they know is driving a vehicle, contributes to this dangerous problem now being addressed by the law. Distracted driving is any activity that takes a driver's full-attention from the road ahead and places it somewhere else.

A case of distracted driving from St. Johns, near Lansing, caught our attention this past summer. A driver, distracted by using her cell phone, struck and killed a bicyclist.

Mitzi Nelson pled to a misdemeanor and the district judge fashioned an interesting sentence: she could not own or possess a cell phone during her two year probation; she did 90-days jail "up front"; and she was obligated to address 20 separate drivers education classes. A very light sentence for causing someone's death.

In Rock County, Minnesota, Chris Weber was driving his truck at night and decided to check his cell phone to see about paying his mortgage. While doing so, he struck and killed a mother of two on a bike; her two daughters were in a carrier attached to the bike.

Unlike Nelson's case here in Michigan, Weber was convicted of vehicular homicide, a felony in Minnesota. He did 120-days in jail; a relatively small price to pay. Now he is assisting the Minnesota State Patrol by making a video with the victim's husband.

For busy mobile folks living in a world of 24/7 connectivity, constant contact has become the standard. What better time to "catch up" or to knock-out that one email task or make that one call than while you are on the road between appointments.

We know all about it over here at the Law Blogger, as we are in 2 or 3 courts each day, driving all over Southeast Michigan on deadlines. Here are a few habits we ask our legal team to develop while on the road:

1. When putting on your seat belt, make a conscious resolution each time that you will not answer your cell phone until you have reached your destination; 
2. To that end, prior to pulling-out from your parking spot, check your phone for any messages, and send any messages that you need to send; 
3. Likewise, make any calls you need to make prior to reaching your next destination; 
4. If possible, leave enough time on both ends of your trip segment to complete the above tasks; 
5. When a call comes in while you are on the road, ignore it because your life, and our lives, are more important.
6. Do not text someone that you know is over the road.

It is the height of arrogance to believe that you are so busy, and that your schedule is so important, that you must tap into your phone, constantly, while on the road. Veteran drivers have been doing this, and getting away with it for years.

Statistics and circumstances, however, will eventually catch-up to such drivers. Just because a driver is busy does not mean the rest of us have to pay the price.

www.clarkstonlegal.com
info@clarkstonlegal.com

From time to time, our appellate clients asking about the parole process.  One way or another, incarceration and parole affects all of us; adding significant costs to maintain our freedom.

An effective criminal justice system depends on the ability of that system to reintegrate the overwhelming majority of convicted felons that have served their bit, back into some semblance of productive society.

The purpose of this post is to explain Michigan's parole process to our readers.  Whether you are a tax paying citizen, or someone with a direct connection to the MDOC, the costs and procedures affect everyone.

Here are the basics...

The Parole Board.
The Parole Board in Michigan was recently reduced in 2011 from 15 members to the current 10 members. The parole board members are appointed by the Director of the Michigan Department of Corrections (MDOC). The Board is the sole paroling authority for felony offenders committed to the MDOC. Members serve 4, 3, and two year terms. Regular meetings are convened by the board to assess and decide parole applications.

The Parole Eligibility Report.
A felony offender must serve the minimum sentence with the MDOC prior to becoming eligible for parole. A Parole Eligibility Report (PER) is prepared on behalf of the applicant by a staff member of the MDOC. This report informs the parole board of the background of an inmate-applicant, and makes sure the applicant's parole file is complete.

The PER also makes recommendations to the parole board for each applicant, taking "misconduct" tickets and the prior criminal record into account. The generation of this report is a critical step in the parole process.

If an applicant has not completed all of the requirements set forth in the judgment of sentence, or if his file is otherwise incomplete, this is noted in the report and parole will be denied.

The Parole Board's staffers use the PER to score a prisoner's parole guidelines. These statutorily-mandated parole guidelines form the backbone of the parole process.

The Parole Interview.
Upon submissions of a prisoner's PER, the prisoner is eligible to participate in an informal and non-adversarial interview with one or more Parole Board members assigned to the prisoner's parole panel. After this interview, a Case Summary Report is generated for the Parole Board's review.
This interview is an excellent opportunity for the prisoner to address members of the board, face-to-face, in order to make a positive impression on his candidacy for parole. The prisoner can address major misconduct tickets, and explain how and when he plans to complete any missing training requirements in order to enhance his eligibility for parole.

Of course, in a perfect world, the prisoner will have completed all required components set forth in his judgment of sentence. This is why good lawyering is so important at the trial phase of the accused's case. Corrections to the presentence investigation report must be made in the lower court as this is the “bible” relative to the prisoner as far as the MDOC is concerned. An inmate will be forced to live within the confines of any errors unless they are corrected on appeal within the timelines set out in the Michigan Court Rules.

Transition Accountability Plan.
Under the Michigan Prisoner Reentry Initiative, the Parole Board and the MDOC are required to formulate a Transition Accountability Plan (TAP) for each prisoner facing parole eligibility.
The TAP serves the dual goals of assisting the prisoner with re-entry into our society, as well as assisting the Board with its parole decision. The TAP identifies specific risk factors for a particular inmate, sets goals relative to minimizing the identified risks, and sets forth a specific plan to help the inmate meet the established goals.

The Parole Board’s Broad Discretion.
In making decisions on parole, the Parole Board has very broad authority to decide the inmate's fate. Nevertheless, the legislature has imposed some restriction on the Board's parole decisions.
For example, the Board must follow the regulatory framework summarized in this post. Also, in no case will a prisoner be granted parole unless and until the Board is satisfied the prisoner will not become, "a menace to society or to the public safety."

In exercising its discretion, the Board takes into account a prisoner's remorse for having committed the offense for which he is incarcerated, his overall mental health, and his "social attitude". A healthy positive attitude is what it takes to achieve parole status; but that is a difficult attitude to acquire and portray from within the grim walls of a prison. The inmate seeking parole must toughen his resolve to acquire and maintain the proper attitude, shutting out all competing negative factors.

Returning to Society.
A prisoner's fate lies squarely within the hands of the Parole Board. At a minimum, the process described above must be followed to the "T". The most important factor beyond having all of one's required sentence components completed, including the payment of restitution, is the adoption and maintenance of a strong positive attitude.

Recidivism is a plague to our society and costs all of us dearly. The Parole Board's job is to identify likely re-offenders and keep them locked-up for the duration of their sentence. This is the cost to society for safety and the enjoyment of our freedom. If the parole process works, prisoners can attain parole, complete parole, and re-join the ranks of law abiding citizens.

Resources.
The Michigan Court of Appeals published an opinion last month, In Re Parole of Raymond Haeger, explaining the nuts and bolts of the parole board in the context of the appellant-prisoner's CSC conviction and failed attempts at parole.

Some attorneys specialize in parole and probation consultations, assisting clients with the preparation and correction of their initial presentence reports, as well as with the parloe process.  Professional Parole Consulting is such an outfit located in Detroit, MI.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com