Also See:
http://michiganoidv.blogspot.com/2004/12/officer-doug-graham-battle-creek-pd.html
An OIDV victim's horror story at the hands of Detective Guy Picketts Jr. [Calhoun SD]
December 16, 2004: Dispatcher Sonte Rounda Everson [Battle Creek PD] was sexually assaulted by her ex-boyfriend, Officer Doug Graham [also of the Battle Creek PD]. However, Sonte was afraid to report the incident, and did not report it for almost a year and only at the urging of her counselor.
September 2005: Dispatcher Everson reported the December assault to Detective Guy Picketts Jr. [Calhoun SD], who failed to properly investigate her complaint.
August 16, 2006: Everson filed a complaint against Detective Picketts for his failure to properly investigate her complaint.
August 22, 2006: Detective Picketts had Everson charged and arrested for filing a false police report [December 16, 2004 assault].
May 2007: At a court hearing, the charges for filing a false police report against Everson were dropped.
May 2007: As Everson was leaving the courthouse from having the charges dropped, Detective Pickett had her re-charged and re-arrested on new charges for filing a false police report.
February 2008: Charges of filing a false police report were once again dismissed against Everson.
August 12, 2012: Everson won a $1,000,000 lawsuit for the retaliation she was subjected to at the hands of Detective Guy Picketts.
"This has been a long ordeal. To survivors of sexual assault and domestic violence, know that you have the right to stand up for your life, no matter who the perpetrator is. Justice will eventually prevail." Sonte Rolina Everson.
Linda Everson, Named As "Linda (Sonte) Everson," Aka Sonte v. Calhoun County, et al
http://www.law.com/jsp/decision_friendly.jsp?id=1202489051659
6th Cir.
01-24-2011
Cole, Circuit Judge.
09-2183
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0053n.06
BEFORE: BOGGS, COLE, and CLAY, Circuit Judges.
OPINION
In this 42 U.S.C. § 1983 action for First Amendment retaliation, Defendant-Appellant Gary Picketts appeals on qualified immunity grounds the district court's order granting in part and denying in part his motion to dismiss and alternative motion for summary judgment.*fn1 For the following reasons, we AFFIRM the judgment of the district court.
I. BACKGROUND
A. Factual History
1. The Police Report & Initial Investigation of Graham In September 2005, Plaintiff-Appellee Linda Everson reported to the Calhoun County Sheriff's Office that, on December 16, 2004, her then-boyfriend Officer Doug Graham of the Battle Creek Police Department forcibly sodomized her during an otherwise-consensual sexual encounter. She stated that she had broken up with Graham and, unsure how to proceed, confided in friends, a counselor, and her physician about the sexual assault before finally deciding to file a police report.
Calhoun County Detective Guy Picketts handled the investigation into Graham's conduct. He interviewed Everson; several of Everson's friends and coworkers in the police department, all of whom confirmed that Everson reported being sexually assaulted by Graham; and Everson's doctor. He also interviewed Graham, who denied that the sodomy occurred and suggested that Everson filed the report out of spite when she found out that he was marrying another woman. Picketts interviewed Everson's friend Sheri Lemonious as well. Although Picketts reported in 2005 that Lemonious said Everson described the sodomy as consensual, Lemonious attested in 2009 that she told Picketts the opposite. Everson alleges that Picketts failed to interview several important witnesses during his investigation.
Picketts submitted a report of his investigation to the Calhoun County Prosecutor's Office, which recused itself on conflict-of-interest grounds. In January 2006, the Branch County prosecutor reviewed Picketts's report and declined to prosecute Graham for sexual assault.
2. Everson's Speech
Upset by the decision not to prosecute, Everson publicly criticized Picketts loudly and repeatedly, accusing him of not doing his job and being "just part of the good ole boy system." She mentioned her complaints to colleagues in law enforcement, at least one of whom relayed her statements to Picketts. Everson also met with Picketts's boss on August 16, 2006, to initiate a formal complaint against Picketts and sent a letter to the Calhoun County prosecutor on August 31, 2006, asking him to take action about her concerns regarding Picketts's investigation of Graham.
3. Picketts's Investigation & Arrest of Everson
Picketts began documenting Everson's comments in a new investigative report-this time against Everson. On August 22, 2006, Picketts interviewed Ethel Fitzpatrick ("Mrs. Fitzpatrick"), Everson's former friend, who stated that Everson had told her that the sexual assault had never occurred. Picketts did not confront Everson about the allegations, and eight days later, he requested an arrest warrant for Everson for the felony of filing a false police report. Everson alleges that Picketts opened the investigation against her before he interviewed Mrs. Fitzpatrick. Everson also alleges that Picketts lied about the first time he met Mrs. Fitzpatrick. Keith Fitzpatrick ("Mr. Fitzpatrick"), Mrs. Fitzpatrick's husband, asserts that at some point Picketts came to their house, told them that he had a personal dispute with Everson, and spoke with Mrs. Fitzpatrick at length and in private. Mr. Fitzpatrick attested that he could not remember whether the in-home meeting took place before or after the August 22, 2006 interview. But he also stated that he had never seen Picketts before the in-home meeting, and both Fitzpatricks were present for the August 22, 2006 interview.
Calhoun County did not recuse itself from the case against Everson, but rather charged her with filing a false police report. After a preliminary hearing, the Michigan district court found probable cause that Everson had committed the crime and bound her over to the circuit court for trial. The circuit court quashed the bind-over and dismissed the case for lack of evidence. Everson was then rearrested on the same charges, and the case was transferred to Kalamazoo County. On February 1, 2008, the Kalamazoo County Prosecutor dismissed all charges against Everson "in the best interests of justice."
B. Procedural History
Everson filed a complaint against Calhoun County, the prosecutor, and Picketts (collectively, "Defendants") under § 1983, alleging that their actions (1) violated her equal protection rights; and (2) constituted illegal retaliation for the lawful exercise of her First Amendment rights. In response, Defendants filed a motion to dismiss and, in the alternative, a motion for summary judgment. After oral argument, the district court issued an order (1) dismissing the equal protection claim; (2) dismissing the retaliation claim against the prosecutor on absolute prosecutorial immunity grounds; (3) denying the motion in all other respects as to Picketts; and (4) denying the motion in all other respects as to Calhoun County without prejudice to renewal of the motion after the close of all discovery. Picketts filed this appeal, alleging that the district court erred in failing to dismiss all claims against him on qualified immunity grounds.
II. DISCUSSION
A. Standard of Review
This court reviews a district court's denial of summary judgment on qualified immunity grounds de novo. Gregory v. City of Louisville, 444 F.3d 725, 742 (6th Cir. 2006). "We may only review the denial of qualified immunity to the extent that the 'appeal involves the abstract or pure legal issue of whether the facts alleged by the plaintiff constitute a violation of clearly established law.'" Dorsey v. Barber, 517 F.3d 389, 394 (6th Cir. 2008) (quoting Gregory, 444 F.3d at 742). The defendant must "be willing to concede the most favorable view of the facts to the plaintiff for purposes of the appeal." Moldowan v. City of Warren, 578 F.3d 351, 370 (6th Cir. 2009).
B. Analysis
In determining whether qualified immunity applies, this court employs a two-step test, considering (1) whether, viewing the allegations in the light most favorable to the injured party, a constitutional right has been violated; and (2) whether that right was clearly established. Dorsey v. Barber, 517 F.3d 389, 394 (6th Cir. 2008). We have discretion to undertake the steps in either order. Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).
It is clearly established that "the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out." Hartman v. Moore, 547 U.S. 250, 256 (2006). To state a prima facie First Amendment retaliation claim, Everson must establish (1) protected speech; (2) injury as a result of defendant's actions; and (3) causation. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).
Picketts first argues that Everson's allegations do not constitute a prima facie retaliation claim because they fail to establish a lack of probable cause, an element of causation. He is correct that § 1983 claims for retaliatory prosecution and arrest fail as a matter of law if the defendant had probable cause. See Hartman, 547 U.S. at 261-62 (Bivens claim for retaliatory prosecution); Barnes v. Wright, 449 F.3d 709, 720 (6th Cir. 2006) (retaliatory arrest). Probable cause exists when an officer has reasonably trustworthy information sufficient to warrant a prudent person in believing that a suspect has committed a crime. Gardenhire v. Schubert, 205 F.3d 303, 315 (6th Cir. 2000). In determining whether probable cause existed in this case, we examine the totality of the circumstances from the perspective of the arresting officer at the time of the arrest. Parsons v. City of Pontiac, 533 F.3d 492, 501 (6th Cir. 2008). In § 1983 actions, the existence of probable cause is a jury question unless only one reasonable determination is possible. Id. (citing Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir. 2002)).
In this case, there are genuine disputes of material fact about whether Picketts intentionally changed Lemonious's statement in his report, spoke privately with Mrs. Fitzpatrick in her home at length before she gave her formal statement, and influenced the content of Mrs. Fitzpatrick's statement. Viewing the facts in the light most favorable to Everson, a reasonable jury could find that, at the time Picketts sought an arrest warrant for Everson, the information he had collected against her was not reasonably trustworthy. Because more than one reasonable determination as to probable cause is possible, it is therefore appropriate to allow the case to proceed to trial.
Picketts's argument that this court should accept the prosecutor's and state court's findings of probable cause as evidence that probable cause existed is inapposite. Because these probable cause determinations were based only on the evidence that Picketts included in his report-which did not describe the circumstances, as alleged by the plaintiff, surrounding Lemonious's and Mrs. Fitzpatrick's statements-we do not find them probative to the issue of whether Picketts had sufficient reasonably trustworthy information at the time of the arrest.
Picketts also contends that the district court's finding that genuine issues of material fact exist was erroneous because it relied on a series of unreasonable adverse inferences and omitted a number of relevant facts. But the "contention that the district court erred in finding a genuine issue of fact for trial is not the type of legal question which we may entertain on an interlocutory basis." Gregory, 444 F.3d at 743. Although this court has recognized an apparent exception "'where the trial court's determination that a fact is subject to reasonable dispute is blatantly and demonstrably false,'" Moldowan, 578 F.3d at 370 (quoting Wysong v. Heath, 260 F. App'x 848, 853 (6th Cir. 2008)) (internal quotation marks omitted), that exception does not apply here. The district court noted the following disputed facts, among others: (1) when Picketts opened his investigation into Everson; (2) whether Lemonious told Picketts that Everson said she had not been raped; and (3) when and how Mrs. Fitzpatrick surfaced as a witness. All of these facts are material to the existence of probable cause. These facts are also genuinely in dispute: each party answers these questions differently, each party's allegations of fact are supported by witness statements, and no objective evidence makes one party's allegations obviously false. Cf. Scott v. Harris, 550 U.S. 372, 380-81 (2007) (finding no genuine dispute of material fact where video evidence blatantly contradicted the plaintiff's allegation that he was driving carefully). Because the district court's finding of genuine issues of material fact was not blatantly and demonstrably false, we lack jurisdiction to undertake further review in this regard.
III. CONCLUSION
For the reasons discussed above, we AFFIRM the judgment of the district court denying Picketts's motion for summary judgment.
Opinion Footnotes
*fn1 Defendant Calhoun County appealed the district court's determination that it was not entitled to sovereign immunity, but withdrew its appeal of this issue at oral argument.
Sunday, August 12, 2012
Monday, August 6, 2012
08062012 - Deputy Joseph Clewley - Sentenced - Ingham SD
Also See:
Deputy Joseph Clewley - Charged with child abuse [May 05, 2012]
Attorney: Former Ingham County Sheriff's detective's hitting teenage son was 'a 30- or 45-second event that changed the course of his life'
Published: Monday, August 06, 2012, 3:39 PM
Updated: Monday, August 06, 2012, 3:41 PM
Brandon Howell
MLive.com
http://www.mlive.com/lansing-news/index.ssf/2012/08/attorney_former_ingham_county.html
"I've had 50 percent custody of my boys since they were 3 and 5," he said at his sentencing hearing Monday. "I've raised them essentially as a single parent from 2004 to 2011 -- I just recently got remarried.
"I love my boys. I would do anything for my boys," Clewley said, fighting back tears.
Ingham District Judge Donald Allen sentenced Clewley to six months probation,$760 in fines and costs, anger management and counseling and five days of community service. Clewley is not allowed to patronize locations where alcohol or controlled substances are consumed.
Clewley, 46, of Leslie, struck his son on May 5, court records show. On May 24, he was charged with third-degree child abuse, a two-year felony, and suspended from the Ingham County Sheriff's Office.
"This incident I'm very sorry for," Clewley told Allen. "I reacted to an incident between the two of them (his sons)... I've taken extensive parenting classes. I have listened to audio, read two books, been to group therapy for parental concerns and how to raise children. I have learned a lot.
"I'm open to new theories and information on how handle stress, stress management, anger, and anger management. Continuing to search out answers on how to prevent this from happening again."
Clewley pleaded to a lesser charge of aggravated domestic violence, a three-year misdemeanor, in late June. He was terminated from the Sheriff's Office on July 19, according to Major Sam Davis. Clewley had served with the agency for 12 years, most recently as a detective.
Prior to Allen's ruling, Clewley's attorney, Nick Bostic, asked the judge to avoid jail time for his client. Bostic urged Allen to consider Clewley's circumstances.
"Obviously, people don't come into court as police officers and have any expectation of being treated special or getting a special break," Bostic said. "But we have a situation where Mr. Clewley has lost his employment...and it's the kind of job it's what you are, it's not just what you do. That's devastated him.
"(It was) a 30- or 45-second event that changed the course of his life."
Bostic also noted Clewley opted against invoking reasonable parental discipline as a defense.
"He dismissed it...because he did not want to put his children through that," Bostic said. "If you think that Joe Clewley is the kind of guy that would add stress and anxiety and burden his children for himself, then you don't know Joe Clewley."
Allen said he was not prepared to incarcerate Clewley, adding he had read "half a dozen or more" letters submitted in Clewley's defense. Some were from former law enforcment coworkers, and one was from Clewley's brother, explaining their upbringing, the judge said.
Allen asked what Clewley has learned thus far in his parenting counseling.
"Parenting is always a perpetual learning curve," Clewley responded. "I'm going to put the parenting styles I've learned into action as I slowly get more visitation with my boys and try to fix and repair the damage that I have done. I'm going to continue to seek help in trying to manage my life, the stress."
"So that's kind of where you're at, just a continued work in progress?" Allen asked.
"Yes sir," Clewley replied. "I assure the court that this will never happen again."
Allen said the sentence he imposed aims to bring Clewley's assertion to fruition.
"I want to make sure that this does not replicate itself," Allen said. "I'm encouraged by the fact that you're saying that it will not happen, but I want to make sure that we put in place safeguards to try and keep it from happening as well."
The conviction will be stricken from Clewley's record, Allen ruled, if he successfully completes the probation term. Clewley is scheduled for review in February 2013, court records show.
Former Ingham County sheriff's detective sentenced to probation for striking son
Published: Monday, August 06, 2012, 2:24 PM Updated: Monday, August 06, 2012, 3:34 PM
Brandon Howell
MLive
http://www.mlive.com/lansing-news/index.ssf/2012/08/former_ingham_county_sheriffs.html
Joseph Clewley, 45, of Leslie, was sentenced to six months probation, $760 in fines and costs, and anger management and counseling. Ingham District Judge Donald Allen also ruled Clewley is not allowed to patronize locations where alcohol or controlled substances are consumed.
Clewley was originally charged with third-degree child abuse, a two-year felony, but pleaded to a lesser chargeof aggravated domestic violence, a three-year misdemeanor, in late June.
Clewley served with the Ingham County Sheriff's Office for 12 years. He was suspended from the agency on May 24, the same day charges against him were authorized.
The case was prosecuted by the Eaton County Prosecutor's Office. The Ingham County Prosecutor's Office recused itself due to Clewley's position with the county Sheriff's Office.
Allen ruled the criminal conviction will be removed from Clewley's record if he successfully completes probation. A violation of said probation could result in jail time.
Prosecutor: Plea deal for Ingham sheriff's detective originally charged with child abuse a 'fair and appropriate resolution'
Published: Tuesday, June 26, 2012, 5:29 PM
Updated: Tuesday, June 26, 2012, 5:31 PM
Brandon Howell
MLive
http://www.mlive.com/lansing-news/index.ssf/2012/06/prosecutor_plea_deal_for_ingha.html
Ingham County sheriff's Detective Joseph Clewley on Tuesday agreed to a plea deal reducing a felony charge resulting from his alleged abuse of his 13-year-old son in May to a misdemeanor.
The deal struck at a pretrial conference lessened a charge of third-degree child abuse, a two-year felony, to aggravated domestic violence, a one-year misdemeanor, according to Eaton County Senior Assistant Prosecutor Neil O'Brien.
Prosecutors offered Clewley, 46, of Leslie, the plea bargain after considering several important factors, O'Brien said.
"After we consulted with the child's mother and reviewed the facts, we believed that this was a fair and appropriate resolution to the case," he said. "In any case when you're talking about assaultive crimes, we're concerned from a law enforcement perspective of trying to make sure that there's going to be an impact that this prosecution has on people's behavior, and that's no different in this case."
Clewley, who has served with the Ingham County Sheriff's Office for the past 12 years, was arraigned on the child abuse charge on May 24, the same day the charge was authorized by prosecutors.
Ingham County sheriff's Chief Dep. Greg Harless previously said Clewley was suspended without pay from the department on May 24 before he was arraigned. Clewley remains suspended from work, Ingham County sheriff's Major Joel Maatman confirmed Tuesday.
The case was prosecuted by the Eaton County Prosecutor's Office. The Ingham County Prosecutor's Office recused itself due to Clewley's position with the county Sheriff's Office.
O'Brien added prosecutors were wary of calling on Clewley's son to testify against his father.
"The defendant, based on whether the case is resolved in a matter satisfactory to him, may have forced us into putting this boy on the stand, testifying against his dad to accomplish about the same outcome that we could have in this plea agreement," O'Brien said.
"There wasn't a major difference (between the two charges) in my mind. It was six of one, half a dozen of the other," he added, noting Clewley and his attorney, Nicholas Bostic, agreed to the plea deal.
O'Brien said Clewley was offered no special consideration due to his position in a law enforcement capacity.
"We are concerned with public perception of how the criminal justice system handles these matters," he said. "We're the public's agent on the side of law enforcement, but we still have to make decisions as to what the appropriate initial charge was and how to resolve it, regardless of who the defendant is.
"In this case, I don't believe it is different than just what a regular layperson defendant's outcome would have been. It's the media who seems to be focusing on who this defendant is."
Clewley is scheduled for sentencing before Ingham District Judge Donald Allen on Aug. 6 at 1:30 p.m.
Ingham County sheriff's detective pleads guilty to lesser charge stemming from alleged abuse of 13-year-old son
Published: Tuesday, June 26, 2012, 3:24 PM
Updated: Tuesday, June 26, 2012, 3:43 PM
Brandon Howell
MLive
http://www.mlive.com/lansing-news/index.ssf/2012/06/ingham_county_sheriffs_deputy.html
MASON, MI -- An Ingham County sheriff's detective pleaded guilty to a lesser charge stemming from an incident that originally resulted in his being charged with third-degree child abuse of his 13-year-old son.
Joseph Clewley, 46, of Leslie, on Tuesday pleaded guilty to aggravated assault before Ingham District Judge Donald Allen, court records show. The charge is a misdemeanor punishable by up to one year imprisonment and a $1,000 fine.
Clewley, who has served with the Ingham County Sheriff's Office for the past 12 years, was arraigned on the child abuse charge on May 24, the same day the charge was authorized by prosecutors.
Ingham County sheriff's Chief Dep. Greg Harless previously said Clewley was suspended without pay from the department on May 24 before he was arraigned.
"As soon as we found out the charge was going to be issued he was suspended," Harless said earlier this month.
Clewley remains suspended from work, the Sheriff's Office confirmed Tuesday afternoon.
The alleged incidence of abuse occurred in May, court records show.
The case is being prosecuted by the Eaton County Prosecutor's Office. The Ingham County Prosecutor's Office recused itself due to Clewley's position with the county Sheriff's Office, Harless said.
Clewley is scheduled for sentencing on Aug. 6 at 1:30 p.m.
Calls placed to the Eaton County Prosecutor's Office and Clewley's attorney, Nicholas Bostic, were not immediately returned.
Tuesday, July 31, 2012
07312012 - Sheriff Candidate Lance Laird - Sentenced - Jackson County
Also See:
Jackson County Sheriff Candidate Lance Laird [2012]
While running for Jackson County Sheriff, Lance Laird [on probation for a domestic violence charge] violated probation when he tested positive for drugs [June 16, 2012]. On July 31, 2012 Laird was sentenced to 57 days in jail for the probation violation.
Jackson County Sheriff candidate Lance Laird sent to jail for 57 days for violating probation by testing positive for cocaine
Published: Tuesday, July 31, 2012, 10:26 AM
Updated: Tuesday, July 31, 2012, 2:23 PM
By Aaron Aupperlee The Jackson Citizen Patriot http://www.mlive.com/news/jackson/index.ssf/2012/07/jackson_county_sheriff_candida_1.html
District Judge R. Darryl Mazur sent Laird, 36, to jail for 57 days after testing positive for cocaine while on probation. Laird claimed someone spiked his stuff with something causing the positive test.
"Mr. Laird, I'm not sure whether you're going to make this election for sheriff or not," Mazur said before imposing a sentence in the matter. "Candidly, I doubt it."
Laird, on probation for a domestic violence charge to which he pleaded no contest in March 2011, tested positive for cocaine when tested on June 16, according to information presented in court. The 57-day sentence is the remainder of Laird's 93-day maximum sentence for the domestic violence charge. Laird already spent 36 days in jail for the original charge and other violations.
During his violation hearing Tuesday, Laird accused Tammy Sanders, the woman he allegedly assaulted, of putting something in his stuff to create the positive test. Laird attempted to play a recording of Sanders admitting to "putting stuff in my things," he said. The audio could not be heard by Mazur or anyone else in the courtroom.
Mazur asked Laird what the essence of the recording was, and Laird replied, "She said, yeah, I put stuff in your shit."
Laird never used the words cocaine or drugs in his allegations against Sanders. Sanders was not in court to testify. Laird said she lies and would not be a credible witness. Mazur said it would have been more credible had Sanders come in to testify Tuesday. Laird's attorney was also not present. Laird said she had another hearing.
Kris Putman, Laird's probation officer, said Laird did not show up for tests on June 12 and June 13. Putman called Laird and told him to go test. Laird told Putman he was frustrated with the system. Laird did not provide enough urine on June 15. On June 16, his test was positive for cocaine. Laird requested the sample be sent away for verification. The verification came back positive as well.
Laird claims the initial domestic violence charge was based on lies and made against him because of an on-going custody dispute with Sanders. Photographs taken after the assault show Sanders with a cut lip and a bloody nose. Police reports provided by Laird show that Sanders had reported Laird hit her twice before. She had no marks, and police could not verify that an assault occurred in each. After the third report, when Sanders went to the Jackson Police Department with a bloodied face, Laird was arrested.
He pleaded no contest to avoid spending more time in jail awaiting a trial, he said in previous conversations.
Laird's stint in jail will his 15th, according to jail records. Charges against Laird in previous, unrelated matters, were dismissed, court records show. A jury convicted him of operating while impaired in 2008. He was found guilty of assault and battery in 1994. Laird has been convicted of traffic infractions and having a dog at large, according to court records. There have been eight civil actions filed against him.
He contends the county justice system is corrupt and has fought his probation and previous charges.
Laird has said as sheriff he would throw in jail prosecutors and judges who violate people's rights and use plea deals as instruments of coercion. He believes the county's criminal justice system is overrun with corruption.
"What would you do if you were sheriff?" Mazur asked.
"I don't think that's proper for the court," Laird responded. "I'm not here for my political agenda."
"I'm curious," Mazur said.
"Maybe you should ask me outside of court," Laird responded.
At the close of the hearing, Mazur said, "If you're elected sheriff, go ahead hold us all accountable."
Laird was placed in handcuffs and led out of the courtroom.
Friday, July 20, 2012
07202012 - Firefighter Gerald Paul Thoma Jr - Fruitport FD
1985: Firefighter Gerald Thoma Jr. was chared with operating a motor vehicle while impaired.
http://michiganoidv.blogspot.com/1985/01/firefighter-gerald-paul-thoma-jr.html
2003: Firefighter Gerald Thoma Jr. was charged again for opertaing a motor vehicle while impaired. It was his second DUI offense. During this incident, Thoma rammed his truck into an acquaintance's house and vehicle in Muskegon Township while attending a party there. He eventually pleaded no contest to two misdemeanors and was sentenced to 45 days in the Muskegon County Jail and 24 months of probation.
http://michiganoidv.blogspot.com/2003/06/fire-captain-gerald-paul-thoma-jr.html
2007: Firefighter Thoma pleaded pleaded guilty to misdemeanor domestic violence for punching his then-16-year-old son in the nose three times. Thoma was sentenced to probation, fines, court costs and anger-management class for that offense.
http://michiganoidv.blogspot.com/2007/06/firefighter-gerald-thoma-jr-fruitport.html
January 30, 2013: Former Firefighter Gerald Paul Thoma Jr. was sentenced to 3 years probation for his July 20, 2012 drunk driving accident.
Former Fruitport Township fire captain got jail, probation for felony drunken driving
By John S. Hausman
The Muskegon Chronicle
March 14, 2013 at 2:21 PM
Updated March 14, 2013 at 2:22 PM
http://www.mlive.com/news/muskegon/index.ssf/2013/03/former_fruitport_township_fire_1.html
MUSKEGON, MI -- Gerald Paul Thoma, a former Fruitport Township fire captain, has served a jail sentence and is serving a long probation term for felony drunken driving involving a videotaped motorcycle accident that seriously injured him.
According to court records, Muskegon County 60th District Judge Andrew Wierengo III last month sentenced Thoma, 49, of Fruitport Township, to jail for 30 days, with credit for 30 days already served. Thoma also was placed on probation for three years, ordered to wear a SCRAM alcohol monitor for 45 days and ordered to pay $948 in fines and costs, according to court records.
Thoma pleaded no contest earlier to third-offense driving while intoxicated, a felony. Most felony cases go to circuit court for plea or trial, but Thoma was referred to Wierengo’s Sobriety Court.
Thoma was arraigned Oct. 2, 2012. The longtime fire captain submitted his resignation after he was charged with a crime.
According to earlier reports, toxicology test results indicated he had a blood-alcohol level of 0.10 percent when the accident happened at 11 p.m. July 20, 2012, in the parking lot of Office Max in the 1700 block of East Sherman Boulevard in the city of Muskegon, authorities said. The blood-alcohol limit for driving a motor vehicle in Michigan is 0.08 percent.
Thoma struck a concrete parking block while attempting the stunt, police said. A video of the accident was released to the media by the Muskegon County Prosecutor’s Office.
Thoma suffered serious injuries and was hospitalized for several weeks after the crash.
Court hearing adjourned for former Fruitport Fire Department captain charged with felony
Published: Monday, October 15, 2012, 5:21 PM
Updated: Monday, October 15, 2012, 5:21 PM
By John S. Hausman
The Muskegon Chronicle
http://www.mlive.com/news/muskegon/index.ssf/2012/10/court_hearing_adjourned_for_fo.html
MUSKEGON, MI -- The preliminary examination has been postponed for Gerald Paul Thoma, the former Fruitport Township fire captain charged with felony drunken driving involving a videotaped motorcycle accident.
Thoma's hearing, originally scheduled for Monday, was adjourned to Nov. 19 at the request of defense attorney Terry J. Nolan, to allow time for the defense to get medical records.
At the hearing, a Muskegon County 60th District judge will hear testimony and view evidence to decide whether the case against Thoma is strong enough to bring to trial in 14th Circuit Court.
Thoma, 48, of Fruitport Township, was arraigned Oct. 2 on a charge of operating a motor vehicle while intoxicated, third offense. Thoma, a longtime fire captain, submitted his resignation last month after he was charged.
Toxicology test results indicate he had a blood-alcohol level of 0.10 percent when the accident happened at 11 p.m. July 20 in the parking lot of Office Max in the 1700 block of East Sherman Boulevard in the city of Muskegon, authorities said. The blood-alcohol limit for driving a motor vehicle in Michigan is 0.08.
Thoma struck a concrete parking block while attempting the stunt, police said. A video of the accident was released to the media by the Muskegon County Prosecutor’s Office.
Thoma suffered serious injuries and was hospitalized for several weeks following the crash.
Fruitport Township Fire Department captain resigns on heels of criminal charge
Published: Thursday, September 27, 2012, 6:24 AM
Updated: Thursday, September 27, 2012, 8:49 AM
By Heather Lynn Peters
The Muskegon Chronicle
http://www.mlive.com/news/muskegon/index.ssf/2012/09/fruitport_township_fire_depart.html
FRUITPORT TOWNSHIP, MI – Gerald Paul Thoma Jr., the veteran Fruitport Township firefighter charged with third-offense drunk driving, has resigned from the fire department.
Thoma, 48, a longtime Fruitport Township Fire Department captain, turned in his resignation letter Friday to Fruitport Township Supervisor Brian Werschem.
On Monday the township board of trustees accepted the resignation, Werschem said. The board, not the public safety director, makes the hiring and firing decisions for the township.
Thoma was charged with the five-year felony recently in connection with a July 20 motorcycle accident in which Thoma was seriously injured.
It wasn’t clear Thursday whether Thoma had yet been arraigned on the charge, but a warrant was signed last week.
Toxicology test results indicate Thoma had a blood-alcohol level of 0.10 percent when the accident happened at 11 p.m. in the parking lot of Office Max in the 1700 block of East Sherman Boulevard in the city of Muskegon. The blood-alcohol limit for driving a motor vehicle in Michigan is 0.08.
Thoma struck a concrete parking block while attempting the stunt, police said. A video of the accident was released to the media by the Muskegon County Prosecutor’s Office.
Thoma suffered serious injuries and was hospitalized for several weeks following the crash. He was not wearing a helmet at the time of the accident, according to the Muskegon police report.
Others were doing stunts in the parking lot on July 20 when Thoma tried to do a stunt himself, police said.
Thoma was previously charged with operating a motor vehicle while impaired in 1985 and 2003, both in Muskegon County.
Video released of Fruitport Township fire captain attempting motorcycle stunt while allegedly drunk
Published: Thursday, September 20, 2012, 5:46 PM
Updated: Tuesday, October 16, 2012, 2:53 PM
By Lisha Arino
The Muskegon Chronicle
http://www.mlive.com/news/muskegon/index.ssf/2012/09/video_released_of_fruitport_to.html
The six-second video shows Gerald Paul Thoma Jr., who has been charged with a felony, moving past another motorcyclist in an empty Office Max parking lot in the 1700 block of East Sherman Boulevard in the city of Muskegon on July 20. The video shows him falling off his bike as sparks fly.
Thoma has been charged for operating while intoxicated third offense, after toxicology test results indicated that he had a blood-alcohol level of 0.10 percent. The legal blood-alcohol limit for driving a motor vehicle in Michigan is 0.08.
Thoma had not been arraigned in Muskegon County 60th District Court as of Thursday evening.
Police said others had been doing stunts in the parking lot that night when Thoma attempted one himself.
He was seriously injured when he hit a concrete block and has only recently been released from the hospital, according to
family and friends. He was not wearing a helmet at the time, according to a police report.
It is unclear if the incident will affect his job at the fire department.
Court records show that Thoma has previous drunk driving convictions in Muskegon County. He was charged with operating a motor vehicle while impaired in 1985 and 2003.
He also pleaded guilty to misdemeanor domestic violence for punching his then-16-year-old son in the nose three times in 2007.
Fruitport Township Fire Captain Gerald Paul Thoma Jr. attempts motorcycle stunt
Posted: Thursday, September 20, 2012, 4:52 PM
By Lisha Arino
The Muskegon Chronicle
http://videos.mlive.com/chronicle/2012/09/fruitport_township_fire_chief.html
Gerald Paul Thoma Jr., 48, a captain with the Fruitport Township Fire Department was charged for an alleged drunken driving accident incident, depicted in this video, that happened while he was trying to do a stunt on his motorcycle in July, according to police. Thoma, shown in this video as the motorcyclist in the back, was seriously injured in the crash was just released from the hospital, according to friends and family.
Fruitport Twp fire capt. faces 3rd OWI
Police: Gerald Thoma's BAC during crash was .10
Updated: Thursday, 20 Sep 2012, 6:57 AM EDT
Published : Wednesday, 19 Sep 2012, 9:29 PM EDT
http://www.woodtv.com/dpp/news/local/muskegon_county/fruitport-twp-fire-capt-faces-3rd-owi
VIDEO: http://youtu.be/Fnoe1eUl3hc
MUSKEGON, Mich. (WOOD) - A Fruitport Township fire captain could spend five years behind bars if convicted of his third drunk driving charge.
A warrant for Gerald Thoma Jr. was issued, according to Muskegon County Chief Assistant Prosecutor Brett Gardner, but he has not yet been arraigned on a count of operating while intoxicated (third offense).
The charge stems from a July 20 incident that happened in the parking lot of the Office Max on E. Sherman Boulevard in Muskegon.
Thoma, 48, was allegedly trying to perform a stunt on his motorcycle when he was seriously injured.
He was not wearing a helmet and recovered in a hospital for more than a month.
His blood-alcohol content ( BAC) level was 0.10 at the time, according to a toxicology report -- .02 higher than the legal limit in Michigan.
Thoma's previous drunk driving charges were from 1985 and 2003 -- both in Muskegon County.
Fruitport Township fire captain charged with felony for drunken motorcycle crash
Published: Wednesday, September 19, 2012, 4:52 PM
Updated: Thursday, September 20, 2012, 8:33 AM
By Heather Lynn Peters
The Muskegon Chronicle
http://www.mlive.com/news/muskegon/index.ssf/2012/09/fruitport_township_fire_captai.html
Muskegon County Chief Assistant Prosecutor Brett Gardner confirmed Wednesday that a warrant has been signed for Gerald Paul Thoma Jr., 48, of the Fruitport Township Fire Department for operating while intoxicated, third offense. That’s a felony punishable up to five years in prison if convicted, Gardner said.
As of late Wednesday afternoon, Thoma hadn't yet been arraigned in Muskegon County 60th District Court.
Toxicology test results indicate Thoma had a blood-alcohol level of 0.10 percent when the accident happened at 11 p.m. on July 20 in the parking lot of Office Max in the 1700 block of East Sherman Boulevard in the city of Muskegon. The legal blood-alcohol limit for driving a motor vehicle in Michigan is 0.08.
Thoma was seriously injured in the crash and only recently released from the hospital, according to friends and family. It wasn't clear what condition Thoma was in as of late Wednesday.
He was not wearing a helmet at the time of the accident, according to the Muskegon police report.
Others were doing stunts in the parking lot on July 20 when Thoma tried to do a stunt himself, police said. A woman had been on the back of Thoma’s motorcycle just prior to the crash, but wasn’t on the bike when he crashed, police said.
Thoma struck a concrete parking block in the parking lot while attempting the stunt, police said.
Fruitport Township Public Safety Director Ken Doctor said Wednesday that he was unaware of the charges filed against Thoma.
Doctor could not say whether the charge will affect Thoma's job at the fire department. It will be up to the township board to decide whether Thoma will keep his job, Doctor said, adding that he doesn’t do the “hiring or the firing” at the fire department.
“That decision will rest with the township board,” Doctor said.
Thoma has had previous drunken driving convictions in Muskegon County, court records show.
Thoma was previously charged with operating a motor vehicle while impaired in 1985 and 2003, both in Muskegon County.
The 2003 incident occurred when Thoma rammed his truck into an acquaintance's house and vehicle in Muskegon Township while attending a party there, according to police. He eventually pleaded no contest to two misdemeanors and was sentenced to 45 days in the Muskegon County Jail and 24 months of probation.
In 2007 Thoma pleaded pleaded guilty to misdemeanor domestic violence for punching his then-16-year-old son in the nose three times. According to a police report, Thoma and his son got into an argument that escalated into an assault at their home. The son called 911.
A judge sentenced Thoma to probation, fines, court costs and anger-management class for that offense.
Fruitport Township firefighter seriously injured while doing stunt on motorcycle
Published: Monday, July 23, 2012, 11:48 AM
Updated: Monday, July 23, 2012, 5:00 PM
By Heather Lynn Peters
The Muskegon Chronicle
http://www.mlive.com/news/muskegon/index.ssf/2012/07/fruitport_township_firefighter.html
MUSKEGON, MI – A longtime Fruitport Township firefighter was seriously injured Friday night while attempting a stunt on his motorcycle in the parking lot of a business along Sherman Boulevard.
Jerry Thoma Jr., 48, a captain with the Fruitport Township Fire Department, was injured shortly after 11 p.m. Friday while he was doing a “burn-out” in the parking lot of Office Max, 1700 E. Sherman Boulevard, according to authorities.
He was not wearing a helmet at the time, according to the Muskegon Police report.
Others were doing stunts in the parking lot and then Thoma tried to do a stunt himself, police said. A woman had been on the back of Thoma’s motorcycle just prior to the crash, but wasn’t on the bike when he crashed, police said.
Thoma struck a concrete pole in the parking lot while attempting the stunt, police said.
When authorities arrived to the scene a woman was holding Thoma's head and neck.
He is currently at Spectrum Health in Grand Rapids. A Facebook page has been started to keep friends and family updated on his status.
As of Monday morning, a friend of Thoma said he was in a coma and unable to speak.
Thoma has been a Fruitport Township firefighter for 22 years, according to Fruitport Township Public Safety Director Ken Doctor.
Fire captain pleads to domestic violence charge
Published: Thursday, October 11, 2007, 1:27 AM
Updated: Thursday, October 11, 2007, 1:41 AM
By Lee Lupo
The Muskegon Chronicle
The Muskegon Chronicle
http://blog.mlive.com/chronicle/2007/10/fire_captain_pleads_to_domesti.html
FRUITPORT TOWNSHIP -- A Fruitport Township fire captain has pleaded guilty to misdemeanor domestic violence for punching his 16-year-old son in the nose.
Gerald Paul Thoma Jr., 43, entered the plea Tuesday before 60th District Judge Michael J. Nolan. Nolan sentenced Thoma to probation, fines and costs and anger-management class.
According to a police report, Thoma and his 16-year-old son got into an argument June 2 that escalated into an assault at their home at 3148 E. Pontaluna. The son called 911.
Police said Thoma punched the teen in the nose three times.
It's not Thoma's first criminal conviction. In June 2003, Thoma was arrested for ramming his truck into an acquaintance's house and vehicle in Muskegon Township while attending a party there. He eventually pleaded no contest to two misdemeanors and was sentenced to 45 days in the county jail and 24 months of probation.
-------------------------
Section 257.625
MICHIGAN VEHICLE CODE (EXCERPT)
Act 300 of 1949
http://www.legislature.mi.gov/(S(55hmiuzoje1tccbqgog3gh55))/mileg.aspx?page=GetObject&objectname=mcl-257-625
***** 257.625 THIS SECTION IS AMENDED EFFECTIVE MARCH 31, 2013: See 257.625.amended *****
257.625 Operating motor vehicle while intoxicated; operating motor vehicle when visibly impaired; penalties for causing death or serious impairment of a body function; operation of motor vehicle by person less than 21 years of age; requirements; controlled substances; costs; enhanced sentence; guilty plea or nolo contendere; establishment of prior conviction; special verdict; public record; burden of proving religious service or ceremony; ignition interlock device; “prior conviction” defined.
Sec. 625.
(1) A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person is operating while intoxicated. As used in this section, "operating while intoxicated" means any of the following:
(a) The person is under the influence of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance.
(b) The person has an alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or, beginning October 1, 2013, the person has an alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.
(c) The person has an alcohol content of 0.17 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.
(2) The owner of a vehicle or a person in charge or in control of a vehicle shall not authorize or knowingly permit the vehicle to be operated upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of motor vehicles, within this state by a person if any of the following apply:
(a) The person is under the influence of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance.
(b) The person has an alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine or, beginning October 1, 2013, the person has an alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.
(c) The person's ability to operate the motor vehicle is visibly impaired due to the consumption of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance.
(3) A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state when, due to the consumption of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance, the person's ability to operate the vehicle is visibly impaired. If a person is charged with violating subsection (1), a finding of guilty under this subsection may be rendered.
(4) A person, whether licensed or not, who operates a motor vehicle in violation of subsection (1), (3), or (8) and by the operation of that motor vehicle causes the death of another person is guilty of a crime as follows:
(a) Except as provided in subdivision (b), the person is guilty of a felony punishable by imprisonment for not more than 15 years or a fine of not less than $2,500.00 or more than $10,000.00, or both. The judgment of sentence may impose the sanction permitted under section 625n. If the vehicle is not ordered forfeited under section 625n, the court shall order vehicle immobilization under section 904d in the judgment of sentence.
(b) If, at the time of the violation, the person is operating a motor vehicle in a manner proscribed under section 653a and causes the death of a police officer, firefighter, or other emergency response personnel, the person is guilty of a felony punishable by imprisonment for not more than 20 years or a fine of not less than $2,500.00 or more than $10,000.00, or both. This subdivision applies regardless of whether the person is charged with the violation of section 653a. The judgment of sentence may impose the sanction permitted under section 625n. If the vehicle is not ordered forfeited under section 625n, the court shall order vehicle immobilization under section 904d in the judgment of sentence.
(5) A person, whether licensed or not, who operates a motor vehicle in violation of subsection (1), (3), or (8) and by the operation of that motor vehicle causes a serious impairment of a body function of another person is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not less than $1,000.00 or more than $5,000.00, or both. The judgment of sentence may impose the sanction permitted under section 625n. If the vehicle is not ordered forfeited under section 625n, the court shall order vehicle immobilization under section 904d in the judgment of sentence.
(6) A person who is less than 21 years of age, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person has any bodily alcohol content. As used in this subsection, "any bodily alcohol content" means either of the following:
(a) An alcohol content of 0.02 grams or more but less than 0.08 grams per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or, beginning October 1, 2013, the person has an alcohol content of 0.02 grams or more but less than 0.10 grams per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.
(b) Any presence of alcohol within a person's body resulting from the consumption of alcoholic liquor, other than consumption of alcoholic liquor as a part of a generally recognized religious service or ceremony.
(7) A person, whether licensed or not, is subject to the following requirements:
(a) He or she shall not operate a vehicle in violation of subsection (1), (3), (4), (5), or (8) while another person who is less than 16 years of age is occupying the vehicle. A person who violates this subdivision is guilty of a crime punishable as follows:
(i) Except as provided in subparagraph (ii), a person who violates this subdivision is guilty of a misdemeanor and shall be sentenced to pay a fine of not less than $200.00 or more than $1,000.00 and to 1 or more of the following:
(A) Imprisonment for not less than 5 days or more than 1 year. Not less than 48 hours of this imprisonment shall be served consecutively. This term of imprisonment shall not be suspended.
(B) Community service for not less than 30 days or more than 90 days.
(ii) If the violation occurs within 7 years of a prior conviction or after 2 or more prior convictions, regardless of the number of years that have elapsed since any prior conviction, a person who violates this subdivision is guilty of a felony and shall be sentenced to pay a fine of not less than $500.00 or more than $5,000.00 and to either of the following:
(A) Imprisonment under the jurisdiction of the department of corrections for not less than 1 year or more than 5 years.
(B) Probation with imprisonment in the county jail for not less than 30 days or more than 1 year and community service for not less than 60 days or more than 180 days. Not less than 48 hours of this imprisonment shall be served consecutively. This term of imprisonment shall not be suspended.
(b) He or she shall not operate a vehicle in violation of subsection (6) while another person who is less than 16 years of age is occupying the vehicle. A person who violates this subdivision is guilty of a misdemeanor punishable as follows:
(i) Except as provided in subparagraph (ii), a person who violates this subdivision may be sentenced to 1 or more of the following:
(A) Community service for not more than 60 days.
(B) A fine of not more than $500.00.
(C) Imprisonment for not more than 93 days.
(ii) If the violation occurs within 7 years of a prior conviction or after 2 or more prior convictions, regardless of the number of years that have elapsed since any prior conviction, a person who violates this subdivision shall be sentenced to pay a fine of not less than $200.00 or more than $1,000.00 and to 1 or more of the following:
(A) Imprisonment for not less than 5 days or more than 1 year. Not less than 48 hours of this imprisonment shall be served consecutively. This term of imprisonment shall not be suspended.
(B) Community service for not less than 30 days or more than 90 days.
(c) In the judgment of sentence under subdivision (a)(i) or (b)(i), the court may, unless the vehicle is ordered forfeited under section 625n, order vehicle immobilization as provided in section 904d. In the judgment of sentence under subdivision (a)(ii) or (b)(ii), the court shall, unless the vehicle is ordered forfeited under section 625n, order vehicle immobilization as provided in section 904d.
(d) This subsection does not prohibit a person from being charged with, convicted of, or punished for a violation of subsection (4) or (5) that is committed by the person while violating this subsection. However, points shall not be assessed under section 320a for both a violation of subsection (4) or (5) and a violation of this subsection for conduct arising out of the same transaction.
(8) A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person has in his or her body any amount of a controlled substance listed in schedule 1 under section 7212 of the public health code, 1978 PA 368, MCL 333.7212, or a rule promulgated under that section, or of a controlled substance described in section 7214(a)(iv) of the public health code, 1978 PA 368, MCL 333.7214.
(9) If a person is convicted of violating subsection (1) or (8), all of the following apply:
(a) Except as otherwise provided in subdivisions (b) and (c), the person is guilty of a misdemeanor punishable by 1 or more of the following:
(i) Community service for not more than 360 hours.
(ii) Imprisonment for not more than 93 days, or, if the person is convicted of violating subsection (1)(c), imprisonment for not more than 180 days.
(iii) A fine of not less than $100.00 or more than $500.00, or, if the person is guilty of violating subsection (1)(c), a fine of not less than $200.00 or more than $700.00.
(b) If the violation occurs within 7 years of a prior conviction, the person shall be sentenced to pay a fine of not less than $200.00 or more than $1,000.00 and 1 or more of the following:
(i) Imprisonment for not less than 5 days or more than 1 year. Not less than 48 hours of the term of imprisonment imposed under this subparagraph shall be served consecutively.
(ii) Community service for not less than 30 days or more than 90 days.
(c) If the violation occurs after 2 or more prior convictions, regardless of the number of years that have elapsed since any prior conviction, the person is guilty of a felony and shall be sentenced to pay a fine of not less than $500.00 or more than $5,000.00 and to either of the following:
(i) Imprisonment under the jurisdiction of the department of corrections for not less than 1 year or more than 5 years.
(ii) Probation with imprisonment in the county jail for not less than 30 days or more than 1 year and community service for not less than 60 days or more than 180 days. Not less than 48 hours of the imprisonment imposed under this subparagraph shall be served consecutively.
(d) A term of imprisonment imposed under subdivision (b) or (c) shall not be suspended.
(e) In the judgment of sentence under subdivision (a), the court may order vehicle immobilization as provided in section 904d. In the judgment of sentence under subdivision (b) or (c), the court shall, unless the vehicle is ordered forfeited under section 625n, order vehicle immobilization as provided in section 904d.
(f) In the judgment of sentence under subdivision (b) or (c), the court may impose the sanction permitted under section 625n.
(10) A person who is convicted of violating subsection (2) is guilty of a crime as follows:
(a) Except as provided in subdivisions (b) and (c), a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not less than $100.00 or more than $500.00, or both.
(b) If the person operating the motor vehicle violated subsection (4), a felony punishable by imprisonment for not more than 5 years or a fine of not less than $1,500.00 or more than $10,000.00, or both.
(c) If the person operating the motor vehicle violated subsection (5), a felony punishable by imprisonment for not more than 2 years or a fine of not less than $1,000.00 or more than $5,000.00, or both.
(11) If a person is convicted of violating subsection (3), all of the following apply:
(a) Except as otherwise provided in subdivisions (b) and (c), the person is guilty of a misdemeanor punishable by 1 or more of the following:
(i) Community service for not more than 360 hours.
(ii) Imprisonment for not more than 93 days.
(iii) A fine of not more than $300.00.
(b) If the violation occurs within 7 years of 1 prior conviction, the person shall be sentenced to pay a fine of not less than $200.00 or more than $1,000.00, and 1 or more of the following:
(i) Imprisonment for not less than 5 days or more than 1 year. Not less than 48 hours of the term of imprisonment imposed under this subparagraph shall be served consecutively.
(ii) Community service for not less than 30 days or more than 90 days.
(c) If the violation occurs after 2 or more prior convictions, regardless of the number of years that have elapsed since any prior conviction, the person is guilty of a felony and shall be sentenced to pay a fine of not less than $500.00 or more than $5,000.00 and either of the following:
(i) Imprisonment under the jurisdiction of the department of corrections for not less than 1 year or more than 5 years.
(ii) Probation with imprisonment in the county jail for not less than 30 days or more than 1 year and community service for not less than 60 days or more than 180 days. Not less than 48 hours of the imprisonment imposed under this subparagraph shall be served consecutively.
(d) A term of imprisonment imposed under subdivision (b) or (c) shall not be suspended.
(e) In the judgment of sentence under subdivision (a), the court may order vehicle immobilization as provided in section 904d. In the judgment of sentence under subdivision (b) or (c), the court shall, unless the vehicle is ordered forfeited under section 625n, order vehicle immobilization as provided in section 904d.
(f) In the judgment of sentence under subdivision (b) or (c), the court may impose the sanction permitted under section 625n.
(12) If a person is convicted of violating subsection (6), all of the following apply:
(a) Except as otherwise provided in subdivision (b), the person is guilty of a misdemeanor punishable by 1 or both of the following:
(i) Community service for not more than 360 hours.
(ii) A fine of not more than $250.00.
(b) If the violation occurs within 7 years of 1 or more prior convictions, the person may be sentenced to 1 or more of the following:
(i) Community service for not more than 60 days.
(ii) A fine of not more than $500.00.
(iii) Imprisonment for not more than 93 days.
(13) In addition to imposing the sanctions prescribed under this section, the court may order the person to pay the costs of the prosecution under the code of criminal procedure, 1927 PA 175, MCL 760.1 to 777.69.
(14) A person sentenced to perform community service under this section shall not receive compensation and shall reimburse the state or appropriate local unit of government for the cost of supervision incurred by the state or local unit of government as a result of the person's activities in that service.
(15) If the prosecuting attorney intends to seek an enhanced sentence under this section or a sanction under section 625n based upon the defendant having 1 or more prior convictions, the prosecuting attorney shall include on the complaint and information, or an amended complaint and information, filed in district court, circuit court, municipal court, or family division of circuit court, a statement listing the defendant's prior convictions.
(16) If a person is charged with a violation of subsection (1), (3), (4), (5), (7), or (8) or section 625m, the court shall not permit the defendant to enter a plea of guilty or nolo contendere to a charge of violating subsection (6) in exchange for dismissal of the original charge. This subsection does not prohibit the court from dismissing the charge upon the prosecuting attorney's motion.
(17) A prior conviction shall be established at sentencing by 1 or more of the following:
(a) A copy of a judgment of conviction.
(b) An abstract of conviction.
(c) A transcript of a prior trial or a plea-taking or sentencing proceeding.
(d) A copy of a court register of actions.
(e) A copy of the defendant's driving record.
(f) Information contained in a presentence report.
(g) An admission by the defendant.
(18) Except as otherwise provided in subsection (20), if a person is charged with operating a vehicle while under the influence of a controlled substance or a combination of alcoholic liquor and a controlled substance in violation of subsection (1) or a local ordinance substantially corresponding to subsection (1), the court shall require the jury to return a special verdict in the form of a written finding or, if the court convicts the person without a jury or accepts a plea of guilty or nolo contendere, the court shall make a finding as to whether the person was under the influence of a controlled substance or a combination of alcoholic liquor and a controlled substance at the time of the violation.
(19) Except as otherwise provided in subsection (20), if a person is charged with operating a vehicle while his or her ability to operate the vehicle was visibly impaired due to his or her consumption of a controlled substance or a combination of alcoholic liquor and a controlled substance in violation of subsection (3) or a local ordinance substantially corresponding to subsection (3), the court shall require the jury to return a special verdict in the form of a written finding or, if the court convicts the person without a jury or accepts a plea of guilty or nolo contendere, the court shall make a finding as to whether, due to the consumption of a controlled substance or a combination of alcoholic liquor and a controlled substance, the person's ability to operate a motor vehicle was visibly impaired at the time of the violation.
(20) A special verdict described in subsections (18) and (19) is not required if a jury is instructed to make a finding solely as to either of the following:
(a) Whether the defendant was under the influence of a controlled substance or a combination of alcoholic liquor and a controlled substance at the time of the violation.
(b) Whether the defendant was visibly impaired due to his or her consumption of a controlled substance or a combination of alcoholic liquor and a controlled substance at the time of the violation.
(21) If a jury or court finds under subsection (18), (19), or (20) that the defendant operated a motor vehicle under the influence of or while impaired due to the consumption of a controlled substance or a combination of a controlled substance and an alcoholic liquor, the court shall do both of the following:
(a) Report the finding to the secretary of state.
(b) On a form or forms prescribed by the state court administrator, forward to the department of state police a record that specifies the penalties imposed by the court, including any term of imprisonment, and any sanction imposed under section 625n or 904d.
(22) Except as otherwise provided by law, a record described in subsection (21)(b) is a public record and the department of state police shall retain the information contained on that record for not less than 7 years.
(23) In a prosecution for a violation of subsection (6), the defendant bears the burden of proving that the consumption of alcoholic liquor was a part of a generally recognized religious service or ceremony by a preponderance of the evidence.
(24) The court may order as a condition of probation that a person convicted of violating subsection (1) or (8), or a local ordinance substantially corresponding to subsection (1) or (8), shall not operate a motor vehicle unless that vehicle is equipped with an ignition interlock device approved, certified, and installed as required under sections 625k and 625l.
(25) Subject to subsection (27), as used in this section, "prior conviction" means a conviction for any of the following, whether under a law of this state, a local ordinance substantially corresponding to a law of this state, a law of the United States substantially corresponding to a law of this state, or a law of another state substantially corresponding to a law of this state:
(a) Except as provided in subsection (26), a violation or attempted violation of any of the following:
(i) This section, except a violation of subsection (2), or a violation of any prior enactment of this section in which the defendant operated a vehicle while under the influence of intoxicating or alcoholic liquor or a controlled substance, or a combination of intoxicating or alcoholic liquor and a controlled substance, or while visibly impaired, or with an unlawful bodily alcohol content.
(ii) Section 625m.
(iii) Former section 625b.
(b) Negligent homicide, manslaughter, or murder resulting from the operation of a vehicle or an attempt to commit any of those crimes.
(c) Section 601d or 626(3) or (4).
(26) Except for purposes of the enhancement described in subsection (12)(b), only 1 violation or attempted violation of subsection (6), a local ordinance substantially corresponding to subsection (6), or a law of another state substantially corresponding to subsection (6) may be used as a prior conviction.
(27) If 2 or more convictions described in subsection (25) are convictions for violations arising out of the same transaction, only 1 conviction shall be used to determine whether the person has a prior conviction.
History: 1949, Act 300, Eff. Sept. 23, 1949 ;-- Am. 1951, Act 270, Eff. Sept. 28, 1951 ;-- Am. 1954, Act 10, Eff. Aug. 13, 1954 ;-- Am. 1956, Act 34, Eff. Aug. 11, 1956 ;-- Am. 1958, Act 113, Eff. Sept. 13, 1958 ;-- Am. 1976, Act 285, Eff. Apr. 1, 1977 ;-- Am. 1978, Act 57, Imd. Eff. Mar. 10, 1978 ;-- Am. 1978, Act 391, Eff. Jan. 15, 1979 ;-- Am. 1980, Act 515, Eff. Apr. 1, 1981 ;-- Am. 1982, Act 309, Eff. Mar. 30, 1983 ;-- Am. 1987, Act 109, Eff. Mar. 30, 1988 ;-- Am. 1991, Act 98, Eff. Jan. 1, 1992 ;-- Am. 1993, Act 359, Eff. Sept. 1, 1994 ;-- Am. 1994, Act 211, Eff. Nov. 1, 1994 ;-- Am. 1994, Act 448, Eff. May 1, 1995 ;-- Am. 1994, Act 449, Eff. May 1, 1995 ;-- Am. 1996, Act 491, Eff. Apr. 1, 1997 ;-- Am. 1998, Act 350, Eff. Oct. 1, 1999 ;-- Am. 1999, Act 73, Eff. Oct. 1, 1999 ;-- Am. 2000, Act 77, Eff. Oct. 1, 2000 ;-- Am. 2000, Act 460, Eff. Mar. 28, 2001 ;-- Am. 2003, Act 61, Eff. Sept. 30, 2003 ;-- Am. 2004, Act 62, Eff. May 3, 2004 ;-- Am. 2006, Act 564, Imd. Eff. Jan. 3, 2007 ;-- Am. 2008, Act 341, Eff. Jan. 1, 2009 ;-- Am. 2008, Act 462, Eff. Oct. 31, 2010 ;-- Am. 2008, Act 463, Eff. Oct. 31, 2010
Compiler's Notes: Section 2 of Act 309 of 1982 provides: “All proceedings pending and all rights and liabilities existing, acquired, or incurred at the time this amendatory act takes effect are saved and may be consummated according to the law in force when they are commenced. This amendatory act shall not be construed to affect any prosecution pending or initiated before the effective date of this amendatory act, or initiated after the effective date of this amendatory act for an offense committed before that effective date.”
Popular Name: Heidi's Law
© 2009 Legislative Council, State of Michigan
-------------------------------------------------------------------
Subscribe to:
Posts (Atom)