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Document #6402/ dowling
27 July 2004
This document is www.lawyerdude.s5.com/dowling.html Version 0.8
This document is available in eform from lawyerdude@sbcglobal.net
3rd Circuit Court of Michigan
1441 St. Antoine, Detroit, Mi 48226
Appeal from the verdict in the trial court in Canton Township
Case No. 04-500035
Lower Court No. 03C196977A
Appellant’s Opening Brief in Drunk Driving case
We will be amending this brief and seeking leave
to file an amended brief
Appellant/ Driver pro se
Darlene Dowling
8471 Honey Lane Bldg.19
Canton, Michigan
734-207-3815
Contents:
Opinions of the U.S. Supreme Court cited herein:
Table of Michigan statutes and rules cited herein:
Michigan Constitution clauses cited herein:
U.S. Constitution clauses cited herein:
Learned treatises cited herein:
Cases from other states cited herein:
The court could easily have resolved the factual issue by simply driving to the scene
The policeman did not give a ticket for turning right on red
Issue #9: Judge Lowe has no jurisdiction until the state utilized its administrative process.
Opinions of the U.S. Supreme Court cited herein:
Taylor v. Porter (4 Hill) 140, 146 1
Bell v. Burson http://www.circuitlawyer.8m.com/Burson.html 1 402 US 535, 539; 91 S.Ct. 1586; 29 L.Ed.2d 90 (1971) Cannot take away your license without a hearing. 2
Chisholm v Georgia, (2 Dall) 415, 472. 1
Cleveland Board of Education v La Fleur (1974) 414 US 632, 39 L Ed 2d 52, 94 S Ct 791 http://www.lawyerdude.netfirms.com/5877.html 1 2
Crutcher v Kentucky (1891) http://www.lawyerdude.s5.com/crutcher.html 1 141 U.S. 47 “Neither licenses nor indirect taxation of any kind, nor any system of state regulation, can be imposed upon interstate, any more than upon foreign, commerce; and that all acts of legislation producing any such result are, to that extent, unconstitutional and void” 2
Griffin v Illinois (1956) http://www.circuitlawyer.8m.com/griffin.html 1 100 L Ed 891, 351 US 12, 79 S Ct 585, 55 ALR2d 1055 (Re: Indigent's right to appointed counsel on first appeal of right, free transcript) 2
Katzenbach v McClung. (1964) (Ollie's Barbecue) 379 U.S. 294 http://www.lawyerdude.netfirms.com/ollies.html 1 2
Reid v. Covert, 354 U.S. 1, 1 L. Ed. 2nd. 1148 (1957) 1
Rhode Island v Massachusetts (1838) 37 U.S. 657 http://www.lawyerdude.netfirms.com/rhode.html 1
2
State v. Simon, (2 Spears) 761, 767. 1
U.S. v Weeks circa 1914 1
Yick Wo vs Hopkins 118 U.S. 356 1
Table of Michigan statutes and rules cited herein:
MCL 6.425(D)(2)(c) 1
Michigan Rules of Evidence 401 Definition of "Relevant Evidence” 1
Michigan Vehicle Code, Acct 300 of 1949, Sec. 612, (c) (5) A sign prohibiting
a turn on red signal . . . 1
R 28.1305 Rule 305. Provisions of code that require signs; enforcebility.
Provisions of this code that require signs shall not be enforced against an alleged
violator if, at the time and place of the alleged violation, an official sign was not in
proper position and was not sufficiently legible so as to be seen by an ordinarily
observant person. 1
Shavers v. Attorney General, 402 Mich. 554, 598; 267 N.W.2d 72 (1978) 1
Federal Rule 615. Exclusion of Witnesses 1
Rule 32(c)(3)(C) provides a party with the right to allocute 1
Michigan Constitution clauses cited herein:
Article 1 § 20 of the Michigan State Constitution: Rights of accused in criminal proceedings:
" In every criminal prosecution, the accused shall have the right... ; to have an appeal as a matter of right
1
Michigan Constitution 1963 Sec. 28: All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent material and substantial evidence on the whole record.... 1
Sec. 11... to search any place or to seize.... without probable cause.... 1
Sec. 20 "...to have compulsory process for obtaining witnesses in his or her favor;" 1
U.S. Constitution clauses cited herein:
4th amendment 1
6th amendment right to be informed of the nature and cause of the accusation 1
6th amendment right “to have compulsory process for obtaining witnesses in his favor”
1
bill of attainder 1
due process clause 1
Fifth Amendment - right throughout criminal proceedings to refuse to provide incriminating information
1
Learned treatises cited herein:
Black's Law Dictionary Fifth Edition, Page 367 1
Cases from other states cited herein:
Caldwell v. Hill 176 S.E. 383 (1934) 1
Issue #1: The trial court erred in refusing to permit testimony that there was no sign at the intersection. The court could easily have resolved the factual issue by simply driving to the scene. In fact the traffic stop was a pretextual stop during “drunk driving hour”. The fruit of the pretextual stop must be suppressed.
Defendant made an offer of proof that her proffered testimony would show that there had never been a "no right turn on red” sign. She offered to prove that there was no probable cause to believe a crime had been committed. All evidence should have been suppressed.
The policeman did not give a ticket for turning right on red. If a violation is important enough to violate the 4th amendment rights of the driver then it should be important enough to issue a ticket. The failure to issue a ticket is consistent with the theory of a pretextual stop during drunk driving hour.
The traffic ticket in evidence shows that the ticket was issued on Friday night/ Saturday morning during the hours that drunk drivers are usually driving.
Defendant tried to do a suppression motion. The court committed reversible error by refusing this non-lawyer driver the opportunity to present critical evidence.
Every element of the crime must be proven beyond a reasonable doubt. Introduced into evidence was testimony that there was no legally-placed “no turn on red” sign. This evidence was crucial because the refusal of the judge to allow the jury to hear this testimony, which attacked the heart of the complaint, was instrumental in appellant’s conviction. Moreover, failure to consider the testimony rebutting the officer’s testimony that he “thought” a sign was there brushed aside appellant’s point that there was no probable cause for the arrest made the basis of this action against appellant and of this appeal.
Testimony that the witness “thought” he saw a sign is insufficient to withstand an offer of proof from a longtime resident that there was no such sign that and never had been a sign there. The witness’s statement alone is insufficient to prove that there was a sign there. The driver should have been given the opportunity to prove that the was never any sign there. The court erred fatally when it refused to hear the driver’s witness. But for this prejudicial error, the driver could have proven that the witness/ policeman was attempting to bootstrap his pretextual stop into a righteous stop by the instrument of perjury. Observe that the officer hedged his chances for a perjury conviction by saying that he “thought” he saw a sign there.
The policeman violated the driver’s 4th amendment rights and the court violated the driver’s right to due process of law.
Federal Rule 615. Exclusion of Witnesses
“At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.”
Constitution of Michigan, article I, declaration of rights says: “Sec. 11... to search any place or to seize.... without probable cause....”
Judge Lowe violated my constitutional right to bring witnesses on my behalf. He violated the Michigan equivalent also. 1963 Michigan Constitution, Sec. 20 "...to have compulsory process for obtaining witnesses in his or her favor;"
With compulsory process comes the right to have relevant testimony put into evidence.
Michigan Rules of Evidence 401 Definition of "Relevant Evidence"
"Relevant evidence" means evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.
-1-
There should have been no traffic stop; the stop was pretextual. The evidence submitted in testimony by appellant’s witness directly rebutted the appellee’s witness and goes to the heart of probable cause for the original arrest.
Michigan Vehicle Code, Acct 300 of 1949, Sec. 612, (c) (5) A sign prohibiting
a turn on red signal as provided in subsection (1) (c) (ii) shall be located above or
adjacent to the traffic control signal or as close as possible to the point where the
turn is made, or at both locations, so that 1 or more of the signs are visible to a
driver intending to turn, at the point where the turn is made. An additional sign
may be used at the far side of the inter-section in the direct line of vision of the
turning driver.
Submitted into evidence is the testimony of Mary Barbara Dowling, infra, evidencing the fact that there were not any legally placed signs before or since the arrest in this case. (T 4-26-04 p161, 12-25).
CHAPTER 4. TRAFFIC-CONTROL DEVICES from the Michigan Uniform
Traffic Control Devices Manual, Michigan State Police:
R 28.1305 Rule 305. Provisions of code that require signs; enforcebility.
Provisions of this code that require signs shall not be enforced against an alleged
violator if, at the time and place of the alleged violation, an official sign was not in
proper position and was not sufficiently legible so as to be seen by an ordinarily
observant person. When a particular rule does not state that signs are required, the
rule shall be effective even though signs are not erected or in place.
And the rule is, unless otherwise posted, right turn on red allowed. The testimony of appellant’s witness, infra, directly rebutted the township's witness who stated that he merely “thought” that a sign was there. The judge abused his discretion by not dismissing this case due to lack of probable cause for the arrest based upon a belief in the existence of a non-existent sign. It is not reasonable that a traffic policeman who polices that area regularly would not know that there was no legally placed sign prohibiting a right turn. It is reasonable to believe that the officer knew that there was no such sign in existence.
The prosecutor and appellant met in judge's chamber where it was agreed that my 18 year old daughter could come from school and testify that there never has been a legally-placed sign as the officer had earlier testified "...it's not official unless it's posted at the intersection like it was last year." (T 4-26-24, p 126, 2-4).
Q. "And the reason you stopped me was because I turned right on red on the "No Turn
On Red"; is that not correct? Isn't that what you said a minute ago"?
A. "Yes, that's true. (T 4-26-04, p126 11-14).
By the officer’s own testimony, the probable cause for the initial arrest was the alleged illegal turn, which was in fact not illegal, thus destroying the probable cause for the arrest, and thereby making all other evidence obtained in that arrest inadmissible under the Fruit of the Poisonous Tree Doctrine. Ms. Prosecutor Cronin said it WAS a question of law, and if so, the judge abused his discretion by failing to dismiss the case against appellant when these facts became known to the court.
Further the judge failed to consider that the testimony of appellant’s witness was certain while that of the officer was uncertain and ambiguous, which should have caused the judge to dismiss the case due to the improper stop without probable cause to believe a crime had been committed, from which all evidence would then have been tainted under the Fruit of the Poisonous Tree Doctrine. U.S. v Weeks. This case should have been dismissed from its inception when evidence was brought forth that there was a doubt as to whether the officer could possibly have had probable cause to believe a crime had been committed. The judge should have considered the rebuttal evidence to the existence of a legally placed sign and that the officer was ambiguous as to what he knew and dismissed the case. This would have been the proper action, and is where the judge abused his discretion.
Prosecutor Cronin stated that introducing the evidence would be misleading, confuse the issues, and take longer time, but there was NO danger that appellant's evidence about a "no right turn on red" sign never have existed since the time the witness since she has lived there was unfairly prejudicial, confused the issues, misled the jury, etc, as appellant's evidence was relevant, and should have been admitted. It is relevant to the issue of "reasonable suspicion" and "probable cause" and to impeach the credibility of the officer.
The exchange between appellant and the judge in this case indicates that he was prepared to give more weight to the testimony of the Charter of Canton Township's witness than he was to appellant’s witness (see transcript at T 4-26-04, p 157, 23-25; p 158, 1-9; p158, 15-25; p 159, 25; p 160 1-3, 13-19) In this the judge clearly states he did not care about any testimony in rebuttal.
The judge did not consider for one moment that is was NOT reasonable that a traffic officer who patrols the area everyday did not know that a legally placed sign was not present. (T 4-26-04 p 158 1-9).
The judge clearly put the burden of proof on one presumed to be innocent by siding with the officer's testimony when a rebuttal to the presumption of reasonableness and truthfulness was raised. Appellant was not supposed to be charged with proving innocence yet the judge stated this would be an "uphill road" for me, the defendant, putting on me the burden of proof to prove my innocence instead of the prosecution proving their own case and where there was a doubt and a ruling which should have been in my favor.
“13 THE COURT: He said the sign is there. What I'm
14 saying is you've got an uphill road because the best
15 you can show me is the sign wasn't there by this
16 person's testimony and then I am going to have to sit
17 down and say can I reasonably conclude that the officer
18 reasonably believed that the sign was there and, yes, I
19 can.” (T 4-26-04, p 158, 13-19)
T 4-26-04 p157:
"23 ... But I am telling you quite clearly that the
24 issue before the court is not specifically whether the
25 sign existed or not, it's whether the officer believed
158
"1 the sign existed and he's already testified in this
2 case that he believes the sign was there.
8 ...."So do you want to suspend the jury trial
9 for a moment and have that hearing?
10 MS. DOWLING: Fine.
11 THE COURT: I don't know what fine means.
12 MS. DOWLING: I mean, I don't know. So an
13 officer can reasonably assume anybody is doing anything
14 and just stop them for whatever they want.
15 THE COURT: No. Actually the officer has to be
16 able to convince the Court that the mistake he made
17 that day -- and I'm not sure if there is a mistake or
18 not. I'm taking your word that your daughter is going
19 to essentially say no such sign existed.
20 But if the officer can testify that as he
21 already has that there has been signage over there and
22 that this has been prohibit for a while and that this
23 signage has changed and that on the day he stopped you
24 he reasonably believed the sign was up then I cannot
25 prevent them from being able to make the stop and once
159
"20... That is a question of law. It is
21 not a question for the jury. The question for the jury
22 is a question of fact.
23 MS. DOWLING: So you're saying no matter what
24 she says it doesn't matter.
25 THE COURT: The reality in this particular
160
"1 question is exactly that and I can say that because the
2 officer has already testified and I'm aware of the
3 officer's testimony.
. . .
"13 THE COURT: He said the sign is there. What I'm
14 saying is you've got an uphill road because the best
15 you can show me is the sign wasn't there by this
16 person's testimony and then I am going to have to sit
17 down and say can I reasonably conclude that the officer
18 reasonably believed that the sign was there and, yes, I
19 can.
161
"12 BY MS. DOWLING:
13 Q. How long have you lived at the Crossings of Canton?
14 A. For around seven years, I believe.
15 Q. And when you leave the Crossings and when you leave
16 your townhouse and go out to the end to Joy Road, is
17 there any "No Turn On Red" sign there?
18 A. Just one across the way.
19 Q. Where is it?
20 A. Across the street on the other side of the street
21 facing.
22 Q. Is there any other "No Turn On Red" signs?
23 A. No, there's not.
24 Q. Has there ever been?
25 A. Not to my knowledge, no.
163
"17 I will not give it to the jury, but you have
18 made a very good record about the issue so that if you
19 bring it up on appeal, "...
Under Griffin v Illinois (1956) http://www.circuitlawyer.8m.com/griffin.html 100 L Ed 891, 351 US 12, 79 S Ct 585, 55 ALR2d 1055 (Re: Indigent's right to appointed counsel on first appeal of right, free transcript) I have a right to due process at every stage of the criminal process. Here Judge Lowe did what many judges do. He said essentially “I can’t be bothered with this. Take it up on appeal” Judge Lowe should have packed everybody in a bus - like they did at the O.J. trial. They could all see that there was no sign. Had this driver been able to afford Johnny Cochran and had she been on TV we might have heard him tell the jury “If the sign’s not there then this aint fair”.
The officer also testified under oath that the driver was weaving. The video tape would have resolved that issue but the prosecution failed to comply with discovery. This is discussed in a later independent issue.
Swerving would have been a physical impossibility as he turned his lights on immediately and I pulled over immediately. Moreover, under oath the officer testified that the reason for the stop was for a prohibited right turn on red, that he put his car in drive after he saw a gray Saturn make the turn. Testimony shows that my car is a black Saturn.
(T 4-26-04 p99, 15-25; p100 1-5)
A private citizen traveling in her own private capacity should not need to fear that she will be arrested when not even in violation of any ordinance. To allow an officer to make a stop where no crime has been committed is to wield a strong arm of police enforcement without restraint.
Since the judged erred in refusing to consider relevant evidence of the lack of existence of the sign in question, he abused his discretion. Had the judge not abused his discretion the case would have properly been dismissed.
This court should find that the judge abused his discretion and order this case dismissed.
Issue #2. Irrebuttable Presumption renders this driving statute unconstitutional. Cleveland Board of Education v Le Fleur. Some persons are capable of driving safely at the blood alcohol designated in the statute. In attempting to make the statute uniform Michigan has created an unconstitutional irrebuttable presumption. An irrebuttable presumption denies due process. Cleveland Board of Education v La Fleur (1974) http://www.lawyerdude.netfirms.com/5877.html 414 US 632, 39 L Ed 2d 52, 94 S Ct 791. Principle: Irrebuttable Presumption violates Due Process clause. This case is applicable to the irrebuttable presumption inherent in drunk driving statutes. They should test the driver at driving skills or a safe proxy. The other irrebuttable presumption is that a 57 year old driver with a prior clean record is presumed to be so immoral as to be deserving of losing her ability to earn a living by driving. The remedy is dismissal of the case so that this safe driver can go back to earning a living at her profession which is driving an 18 wheeler.
Issue #3: Judge Lowe’s court erred in refusing to address the jurisdiction issue. He was unable to cite any basis for jurisdiction over me. He lacked jurisdiction to proceed further until he resolved the jurisdiction issue.
Issue #4 Judge Lowe denied my 6th amendment right to be informed of the nature and cause of the accusation.
In order to prepare for a proper defense I repeatedly asked to be told the nature and cause of the "charge". Although a "lesser" charge was offered by the prosecution, never at any time was the nature of the charge nor cause of the original offense told to me. I fired my attorney. I feared of being abandoned by another attorney whose representation would not benefit me. I went forward in the 35th District Court, unaware of what the nature and cause of the charge was against me, the maximum and minimum penalties, if it was an ordinance violation or a state violation. I guessed and presumed. I was never told. On February 12, 2004 I asked what was the instrument that Judge Lowe was using to make his determination regarding my challenge to personal jurisdiction (T 2-12-04, p7, 8-10) He responded by stating he had "geographical" jurisdiction (T 2-12-04 p 7, 18-20). A King has geographical jurisdiction; Judge Lowe does not. He could not state a "specific" law or statute (T 2-12-04 p8, 7-10):
7 "...I cannot cite you any specific law. I
8 can't tell you what the -- where the state statute is
9 that empowered the district court right off the top of
10 my head, nor do I intend to..."
“However late this objection has been made, or may be made in any cause, in an inferior or appellate court of the United States, it must be considered and decided, before any court can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction. Jurisdiction is the power to hear and determine the subject matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them; the question is, whether on the case before a court, their action is judicial or extra-judicial; with or without the authority of law, to render a judgment or decree upon the rights of the litigant parties.” - Supreme Court in Rhode Island v Massachusetts (1838) 37 U.S. 657 http://www.lawyerdude.netfirms.com/rhode.html
Issue #5: The statute and resulting and verdict in this case are an impermissible and unconstitutional burden on interstate commerce.
"neither licenses nor indirect taxation of any kind, nor any system of state regulation, can be imposed upon interstate, any more than upon foreign, commerce; and that all acts of legislation producing any such result are, to that extent, unconstitutional and void." U.S. Supreme Court in Crutcher v Kentucky (1891) http://www.lawyerdude.s5.com/crutcher.html 141 U.S. 47.It is well known that instate travel is protected by the commerce clause as well as interstate travel - and a road within a state in an instrument of interstate commerce, but we need not quibble: this illegal prosecution impedes my right to travel instate and interstate. The interstate commerce clause is easily triggered as in the case of Ollie’s barbecue: Katzenbach v McClung. (1964) (Ollie's Barbecue) 379 U.S. 294 http://www.lawyerdude.netfirms.com/ollies.html .
Issue #6: The statute as applied here constitutes an unconstitutional bill of attainder and bill of pains and penalties. The judge has no discretion and no authority to prevent the complete destruction of the career of this professional truck owner/ operator. This statute with its imposed taint imposed by the legislature having the result of defaming the driver and ruining her career is the perfect example of a bill of attainder and its cousin, the bill of pains and penalties. The conviction must be overturned. The demon/ monster of big brother/ oppressive government has in this case completely devastated this excellent driver. This will not stand.
Issue #7. All traffic laws are merely recommendatory. If there is no crash then there is no need to look at the law. This statute is bad. It is prophylactic. The statute punishes the precursor. We don’t punish men for doing what may get them into a fight; we punish them for fighting.
Issue #8. There is no constitutional authority for Michigan, the United States, or any state, to impose a punishment for mere driving; indeed the bills of rights render the statute void ab initio.
Ours is system of limited powers. Whatever is not specifically granted to Michigan is withheld. There is no provision in the constitution for this statute. If there were, it would be supervened by the commerce clause.
Judge Lowe stated this (T 2-12-04 p8, 10-16):
10 "...If you want to go looking
11 at the powers of district courts to handle misdemeanor
12 offenses then perhaps you should go do your legal research
13 in that arena...
14 ....So, no, I can't give you a specific
15 cite, I can only tell you that I am confident that I
16 have the authority to address a misdemeanor offense"
It is obvious from the above statement that the judge, without being able to state what law nor statute I was in this district court for, abused his discretion by waiving a hearing and pronouncing that because I wished to remain silent because I did not know what law nor statute I was brought there for, I should go directly to a jury trial, and after trial, directly to jail.
Though it is stated in The Record of Actions that I stood mute, in earlier court transcripts January 23, 2004, I did plea a "confession and avoidance" which the judge, in response, said this (T 1-23-04 p 5, 17-25; p6, 1-4):
17 THE DEFENDANT: "A confession and avoidance,
18 your Honor.
19 THE COURT: Pardon?
20 THE DEFENDANT: A confession and avoidance,
21 your Honor.
22 THE COURT: I can take your confession if you're
23 talking about an admission of guilt. I can't take your
24 confession if you're talking about that which would be
25 given in a church. An avoidance, I have no idea what
1 'you're talking about. Because let me be perfectly
2 straight, you're in a court of law. If you admit you
3 will be punished. There will be no avoidance of the
4 punishment...."
Yet, Judge Lowe could not tell me WHAT I was being punished for.
There has never been a signed verified complaint or warrant until the day of a jury trial, at which time, I was unaware of their existence and to this day have never seen either. (T 4-26-04, p14, 5-6). I reminded the judge again that "From the first arraignment I was never read the charges". (T 4-26-04 p 137, 14).
In Common Law pleadings, a declaration must be made regarding the nature and cause of the action:
Declaration. In common-law pleading, the first of the pleadings on the part of the plaintiff in an action at law, being a formal and methodical specification of the facts and circumstances constituting his cause of action. It commonly comprises several sections or divisions called "counts," and its formal parts follow each other in this general order: Title, venue, commencement, cause of action, counts, conclusion...Black's Fifth Edition, Page 367
Appellant has appeared specially not generally in all occasions without ever being read the charges against her, at any time until the jury trial, although the prosecutor said he read them to me Feb. 12th, yet this is not true, he made an offer of what I did not understand at the time and showed me a driving record, demanding I state whether or not I was that one specifically named therein, at which time I asked "what difference does it make". To this day, other than being read a description of a "charge", I do not know if it was an ordinance, law or statute I was charged with. On the ticket there is written an ordinance number regarding The Charter Township of Canton. The "people" of The Charter Township of Canton is who apparently has been prosecuting me although, other than the ticket I have received nothing from them. The "charge" has now been turned over to the Michigan Department of State, so I have been confused since the beginning of this prosecution as to the facts of the matter and the nature and cause of this alleged "charge".
I have signed NOTHING at any time since the inception of this entire court proceeding, except a sign in sheet at court and a bond after being jailed the first time, the bond which I refuted and sent back, without dishonor, and through fear of being put in solitary confinement, I signed, without prejudice, after being sentenced to jail in the county, this also without due process as I "think" I was sent there because I did not go along with rules which suggested I see a probation officer before sentencing, although I was never told why I was sent to jail for 17 days. This is a first time "offense" and an abuse of discretion as the judge sent me to jail without allowing me to personally address the court, and without telling me why I was being sentenced to jail, other than he felt I was not a good candidate for probation, at which time he said:
"...If that's a meritorious appeal then I'll learn that now and you're welcome to appeal the issue" (T-5-03-04 p10, 19-23).
At the jury trial, I was told the charge is driving while intoxicated. I was told I could take a lesser charge. I asked what law did I break? Again, the statute to this day, nor the Charter of Canton Township Ordinance has never been told to me, I have found out after the fact, from profound letters from The Department of State generated from what they said was a "court abstract".
The state has no rights, it is an idea, not a person and can therefore never suffer harm.
On whose behalf, if the state seeks to punish me for this alleged violation, can the state articulate authority to do so? Upon behalf of what victim or aggrieved party can the state make a claim?
Prior to the statutory maze that now curses the citizenry of this land we were subject to the law of the land. The United States, by way of the Constitution, adopted the Common Laws of England. Caldwell v. Hill 176 S.E. 383 (1934). The Law of the Land means the Common Law . Taylor v. Porter (4 Hill) 140, 146, State v. Simon, (2 Spears) 761, 767.
The Constitution was adopted and made by people in their capacity as Sovereigns. Therefore, as a whole, the United States emanates from the people thus the laws and constitutions of the several states are subordinate to the Constitution of the United States and the laws made pursuant to it. "Sovereignty itself is, of course, not subject to law for it is the author and source of law;" Yick Wo vs Hopkins 118 U.S. 356. "Here [in America] sovereignty rests with the People." Chisholm v Georgia, (2 Dall) 415, 472.
"The rights and liberties of the citizens of the United States are not protected by custom and tradition alone, they are preserved from the encroachments of government by express/enumerated provisions of the Federal Constitution." Reid v. Covert, 354 U.S. 1, 1 L. Ed. 2nd. 1148 (1957).
“By stealthy encroachment our totalitarian government has taken away our rights and sold them back to us as privileges and licenses” - Lawyerdude
Appellant believes this case should be dismissed as the action against her has never been properly clarified, no law nor statute could be cited, even by the judge, and even during the jury trial, still not knowing, asked if this was a criminal or civil charge. (T-4-26-04 p 121, 2-3)
Issue #9: Judge Lowe has no jurisdiction until the state utilized its administrative process. Drunk driving is not a crime. The crimes and misdemeanors are listed in Blackstone’s commentaries on the law. Drunk driving is not a crime. Michigan’s administrative agency for motor vehicles may not bases its action on this trial; that is backwards.
This driver has been attacked for violating a law properly enforced by state agencies.
Darlene-Joan: Dowling was denied a hearing and therefore denied constitutional and administrative due process.
Enforcement of Act 300 of 1949, is entrusted to the Michigan Department of State Highways under the exclusive authority of the Michigan Secretary of State. Accordingly, the Michigan Department of State Highways is required to comply with the Michigan Administrative Procedures Act of 1969. The Michigan Administrative Procedures Act requires that the State of Michigan, via the Michigan Department of State Highways, must first conduct an administrative hearing and secure an administrative determination prior to seeking a judicial enforcement.
There was no administrative hearing conducted and no administrative determination made prior to Appellee's seeking of a judicial enforcement, which violates due process.
The Charter Township of Canton, appellees, failed to exhaust its administrative remedy prior to seeking a judicial enforcement.
Because of this, the court had no jurisdiciton to hear the adminstrative matter.
Appellant has received a final Order from the Michigan Department of State Highways under the authority of the Michigan Secretary of state without a:
a. hearing
b. judicial determination
c. findings of fact and conclusions of law.
A jury trial ensued on the "authority" of a ticket presented by the officer of The Charter Township of Canton, which made the officer the prosecutor.
The people of the Charter Township of Canton and/or the Michigan Department of State Highways have not filed a certified Final Administrative Determination. The people of the Charter Township of Canton and/or the Michigan Department of State Highways have failed to make a claim that the 35TH DISTRICT COURT could hear as per the Michigan Administrative Procedures Act. There is no “Agency Final Administrative Determination” in the record. The court had nothing to Review. The Charter Township of Canton and/or the Michigan Department of State Highways did not exhaust its Administrative remedies. Therefore, the "court" lacked Subject Matter Jurisdiction. To have moved the 35TH DISTRICT COURT forward without exhausting Administrative remedies, has deprived the Accused “Due Process of Law”, a violation of Constitutional Law.
"A driver's license, once issued, is a significant interest subject to constitutional due process protections". Bell v. Burson http://www.circuitlawyer.8m.com/Burson.html 402 US 535, 539; 91 S.Ct. 1586; 29 L.Ed.2d 90 (1971). Shavers v. Attorney General, 402 Mich. 554, 598; 267 N.W.2d 72 (1978)
Michigan Constitution 1963 Sec. 28: All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent material and substantial evidence on the whole record....
Appellant seeks dismissal due to the fact that there was lack of due process by not following administrative procedures including an administrative hearing as required by law.
2. Enforcement of Act 300 of 1949, is entrusted to the Michigan Department of State Highways under the exclusive authority of the Michigan Secretary of State.
3. Accordingly, the Michigan Department of State Highways is required to comply with the Michigan Administrative Procedures Act of 1969.
4. The Michigan Administrative Procedures Act requires that the State of Michigan, via the Michigan Department of State Highways, must first conduct an administrative hearing and secure an administrative determination prior to seeking a judicial enforcement.
Issue #10 This case must be dismissed because Judge Lowe denied me my right to address the court before sentencing.
This appellant was refused, and denied, the right to personally address the court.
References:
Rule 32 of the Federal Rules of Criminal Procedure specifies the process by which a sentence and judgment are imposed upon a defendant following conviction. Rule 32(c)(3)(C) provides a party with the right to allocute, requiring a district court to, "address the defendant personally and determine whether the defendant wishes to make a statement and to present any information in mitigation of the sentence," before the court imposes a sentence.
Sentencing - Allocution - Right
At sentencing, the court must on the record give the defendant, the defendant's lawyer, the prosecutor
and the victim an opportunity to advise the court of any circumstances which they believe the court
should consider in imposing sentence.
MCL 6.425(D)(2)(c)
This appellant had much to say, along with what she had turned into the court as a statement, which was NOT allowed to be read into the record. (See attached: STATEMENT OF ALLOCUTION), nor her voice to be heard in response to what she did not know would or could even occur. If I might indulge the court to make this allocution now as I had: The right to explain that her business has been totally destroyed, her right to contract impaired via the special ACT 300 of 1949 of the Michigan Vehicle Code, imposing special regulatory rules meant for commerce and those engaged in it which she was not the night of this illegal stop as she was a private traveler on the night in question was not allowed to be spoken; regulatory statutory rules which affected and shut down her business as a trucking company. That she is 52 years old without a criminal record, a single mother of two who now, can no longer financially assist her older mother nor provide for her children who live with her and now does not now have a job, reduced to poverty and peonage because of one false allegation by one man for "disobeying" a sign which was never there (see photo in evidence) of which due process was NEVER, at any time, afforded her. That her right to bring forth witnesses in her defense had been denied, that the nature and cause of the charge had never been told to her, that a verified complaint was never entered into the record until the day of the jury trial, at which time she did not see it, nor has to this day, that exculpatory evidence was purposely concealed from her, that the jury came from who knows where, that there was no stipulation to a jury of less than 12 made by her, nor made known to her.
This appellant retained her right of assistance of counsel and at no time throughout any of these proceeding has she ever refused that right, she has only refused court appointed attorneys who would not represent her interests but those of the "court", yet was sentenced to jail as a common thief or murderer, then shackled, without being given an opportunity to begin the appeal process, nor stay of execution as is customary.
For this the judge imposed a punishment, and silenced her, holding her in contempt for refusing a probationary scheme and the court appointed attorney he wanted me to have, which invaded my right to remain silent, a probationary scheme which is a rule, not a law:
Self-Incrimination - Right Against - Sentencing
Under the Fifth Amendment, a defendant has the right throughout criminal proceedings to refuse to
provide incriminating information. A judge may not employ the sentencing power to elicit information
from a defendant, or to punish him for exercising his right to remain silent.
I was put into a holding cell for which the judge himself said the probation was just a measure he used as a guide for sentencing (T 5-03-04 p 4, 18-25, p 5, 1):
18 "THE DEFENDANT: Your Honor, I understand that
19 you are supposed to go to the probation after a
20 sentence.
21 THE COURT: I'm sorry, what, ma'am?
22 THE DEFENDANT: I go to probation after a
23 sentence. The probation department is not to determine
24 the sentence you give me.
25 THE COURT: You're right. The probation
1 department makes a recommendation and based upon their
2 recommendation I determine the sentence and then I send..."
This appellant is appealing what the judge himself called a "meritorious appeal" (T 5-03-04 p 10, 21-22):
21 "..... If that's a meritorious
22 appeal then I'll learn that now and you're welcome to
23 appeal that issue,"
This appellant requests this case be dismissed for abuse of discretion and power by the judge who held me against my will in a holding cell, using coercion to "persuade" (T 5-03-04 p 5, 20-23) me to take this court appointed attorney, after he had said that the motion I put before him (See Motion to Dismiss in evidence) would have to be scheduled for a later date and that he would accommodate the motion (T-5-03-04 p3, 15-19), then later sentenced me to jail, "because I do not believe you'll be a candidate for probation--a good candidate for probation"(T 5-03-04 p9, 19-20), without affording me an opportunity to personally address the court, and denying the right to put what I had brought in that morning, which he said he read, into the record:
(T 5-03-04 p10, 1-8):
1 "THE COURT: I've read your allocution. You
2 don't get to read it
3 THE DEFENDANT: I have a right to read it.
4 THE COURT: Ma'am, at this point because I read
5 your allocution I am not going to sit here and have you
6 read it to me. If I had not read it, if I didn't know
7 what it said, then I would certainly let you come
8 in and put yours on the record."
Article 1 § 20 of the Michigan State Constitution: Rights of accused in criminal proceedings:
" In every criminal prosecution, the accused shall have the right... ; to have an appeal as a matter of right, except as provided by law an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court; and as provided by law, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal."
This appellant requested a stay of execution for appeal as is customary, and was denied this request as well (T 5-03-04, p10, 9-11):
9 "THE DEFENDANT: Then I appeal your decision,
10 your Honor. The stay of execution, which is
11 customary."
As stated in the Michigan State Constitution, Article I, sec. 20, supra, I had a right to appeal, and a right to appeal by leave of the court and a right to reasonable assistance as may be necessary to perfect and prosecute an appeal, but was sent directly to jail without being afforded any of these guaranteed rights.
On the grounds that allocution was denied, that appeal as a matter of right refused before incarceration, I believe this to be an abuse of discretion and of power on the part of the judge and ask this case be dismissed.
Issue 11. This case must be overtuned on appeal for wilfull failure to comply with discovery requests. In particular there was an exculpatory video tape that would have shown that I was not swerving. This combined with the refusal to permit me to present testimony of my witness as to the absence of the sign. The court denied me my right to present these two important facts. Together they would show that this was a pretextual stop. The court covered the lies of the policeman. Is it a discretionary action and/or an obstruction of justice for the prosecutor to knowingly, willingly, and intentionally refrain from allowing the defendant to prepare a proper defense by withholding her FOIA request used as discovery for exculpatory evidence and the video before trial which would have been held as being evidence of self incrimination without a damaged or injured party?
There was an original discovery request made by the attorney I first retained, and then, later fired. There was no "video" included with his discovery request. I mailed a 2nd discovery via FOIA request. A FOIA letter is a legitimate request for Discovery. I requested oaths of office and other particular information including the video used as evidence against me during trial. The prosecutor received from the Charter Township of Cant