Circuit Court Opinion of the Month: New Trial Ordered in Impaired Driving Conviction - July-August, 2015

On June 4, 2015, Genesee County Circuit Judge Joseph J. Farah issued an opinion and order reversing an impaired driving conviction and sentence and ordering a new trial.  The defendant, who was charged with four criminal counts including operating a vehicle while intoxicated, possession of marijuana and leaving the scene of an accident, represented himself at trial.

Four issues were raised in the appeal: 1) there was a denial of the right to counsel; 2) there was a denial of a fair trial due to limitations on closing argument; 3) the sentence of 72 days in jail was invalid because the trial court based its sentence upon the acquitted charges; and 4) the imposition of $10,800 in prosecution costs was invalid because it was not authorized by statute.

Judge Farah, noting that the rights of self-representation and to counsel are mutually exclusive, and that the right to self-representation is not absolute, determined that trial courts -- when facing a request by a defendant for self-representation – must substantially follow the requirements of People v. Anderson, 398 Mich. 361; 247 N.W.2d 857 (1976), People v. Adkins, 452 Mich. 702; 551 N.W.2d 108 (1996), and Mich. Ct. R. 6.005(D), and find that, among other things, the defendant’s request is unequivocal, before the trial court may allow self-representation.

Judge Farah found that the trial court had exercised “exemplary patience” and undertook a “Herculean effort” to accommodate the defendant; however, the defendant’s request for self-representation at trial was ultimately equivocal and the trial court did not substantially comply – on the existing record -- with the requirements for a valid waiver of counsel.  “[It] is in these difficult cases that the dictates of the cases and rules become aids, not impediments, to dealing with the contumacious litigant seeking to represent himself.”

Judge Farah also held, on the remaining issues, that the limits imposed on closing argument – while legally sound – would not support a new trial; that is, were there error by the trial court, the error was harmless.  Concerning the invalid sentence argument, should there be another sentencing, then the trial court must base the sentence upon proper factors, and “not include the sentencing judge’s belief in guilt where none was found.”  Judge Farah also vacated the order for costs, finding that while there is a statutory basis for assessment of prosecution costs, as the People argued, a trial court must differentiate between the costs for obtaining a conviction and those costs attributable to charges resulting in acquittals.   Because the trial court did not make such a differentiation, the order was invalid.

The defendant was represented by attorney Neil C. Szabo.  A copy of the opinion in People v. Eric Mays, Genesee County Circuit Court Case No. 14-103151-AR, is available from the CDRC at:

by Neil Leithauser
Associate Editor