Michigan criminal code encroaching on civil liberties

Neil Rockind

Phil Power and I were on the same wavelength last week, frustrated by the proliferation of often absurd crimes in the Great Lakes State (“Crime Crime Everywhere”). I don’t need to add to Mr. Power’s list, but suffice it to say that the Michigan Penal Code contains about 918 sections, which is eight times the number of the Model Penal Code and, with 3,100 identified criminal offenses, far more than nearby Ohio, Illinois and Wisconsin. It seems that those in the Michigan legislature believe if we propose and pass laws often enough, nothing bad will happen.

On the contrary, not only are bad things continuing to happen, but newly introduced laws are seriously encroaching on the civil liberties of Michigan residents. For example, on January 12, 2015, Gov. Snyder announced legislation allowing DNA samples to be collected at the time of arrest for all felonies. Touted as a public safety boost by the Governor, even a wrongful arrest under this new law results in DNA collection without a warrant or search warrant.

The DNA swab is the most startling example of a law that was passed despite immediate and obvious civil liberties implications. Michigan also recently passed a law requiring drivers to perform field sobriety evaluations, i.e., roadside gymnastics and acrobatics. Under this law, a citizen no longer has the right to refuse the field sobriety test without penalty, which may include a civil infraction violation and a fine. Many don’t understand that even sober individuals have varying degrees of success in passing such tests. No one wants to be soft on drunk drivers, but at what point is the balance tipped too far in favor of policing agencies, with their tremendous power and authority, and away from individual rights?

Here’s an interesting story about what I see as a complete infringement of civil liberties. I recently received approval to retrieve the blood samples of an acquitted client after obtaining an order compelling the Michigan State Police Department to do so. Initially, the department refused and claimed the blood drawn from the client belonged to the prosecuting agency or the arresting agency, but I proved there was no law supporting the department’s claim. The department also claimed there is a policy that all blood samples must be kept for two years even if a person is acquitted of a crime. Again, I found no law supporting that.

If you were acquitted of a crime, would you want your blood samples stored in a crime lab, not knowing when the police could use those samples again to help solve future crimes? Who is to say in a week, month or years down the road when the police are looking for a suspect, they won’t start running tests against all the blood samples in the lab? It’s this unknown factor that infringes on people’s rights - and it’s wrong. (There ought to be a law!)

From the trenches where I live and breathe, life can get ugly, but one is still innocent until proven guilty. Let’s not allow Michigan lawmakers to forget that.

In the meantime, I hope for something different and work toward fewer laws and greater respect for civil liberties. That’s it for now, though. I have to go defend someone who seduced an unmarried woman which can also be a felony in Michigan. Seriously. Where do we draw the line?

Neil Rockind is a criminal defense attorney based in Southfield. He is a former assistant prosecutor in Oakland County.