COURT FOR THE COUNTY OF 
| Chapter 12: Dismissal of Charges |
There are many grounds, both constitutional and statutory, on which your client will be able to move to dismiss his or her case. We have included a number of examples, but it is not an exhaustive collection.
12-1 Insufficiency of the Charging Instrument
Felonies: The standard requires that there must be probable cause to believe both that a felony was committed
and that the defendant committed it. People v Doss, 406 Mich 90 (1979). A judge must examine the "whole
matter" and has the duty to pass on the weight and competency of evidence, credibility of witnesses, and
evidence in defense. People v King, 412 Mich 145 (1981); People v Stafford, 434 Mich 125 (1990). If any
element is lacking, a motion to dismiss can be brought.
Misdemeanors: Although
12-2 Procedural Defects in the Bindover
There are a number of rule-based and statutory provisions which must be followed by the prosecution in the indictment/information process, the departure from which may be grounds for a motion to dismiss. MCR 6.104, 6.445, 6.907; MCL 766.4; MSA 28.922. For example, the prosecution has only 14 days from the date of your client's arraignment to conduct a preliminary examination, unless the judge finds good cause for a delay. The judge must make the finding of good cause on the record; docket congestion is not a good cause. People v Weston, 413 Mich 371 (1982); People v Crawford, 429 Mich 151 (1987); People v Twomey, 173 Mich App 247 (1988).
12-3 Prosecutorial and Police Misconduct
There will be cases where misconduct on the part of the police and/or the prosecution will rise to the level of a due process violation and can serve as the basis for a motion to dismiss. An example of such misconduct is entrapment.
The test for entrapment in Michigan is the objective test, which focuses on the conduct of the government agents, rather than on the predisposition of the defendant. People v Turner, 390 Mich 7 (1973); People v Jamieson, 436 Mich 61 (1990); People v Juillet, 439 Mich 34 (1991).
A defendant is entrapped if either; 1) the police engage in impermissible conduct that would induce a person similarly situated to the defendant, though otherwise law-abiding, to commit the crime, or 2) the police engage in conduct so reprehensible that it cannot be tolerated by the courts. People v Fabiano, 192 Mich App 523, lv den 439 Mich 1002 (1992). The burden is on the defendant to prove entrapment by a preponderance of the evidence. People v D'Angelo, 401 Mich 167 (1977).
There are a number of factors to consider, summarized in People v Butler, 199 Mich App 474 (1993), rev'd 444 M 965 (1994):
1. Exploitation of friendship. People v Juillet, above; People v Duis, 81 Mich App 698 (1978); People v Gratzer, 104 Mich App 705 (1981); People v Killian, 117 Mich App 220 (1982); People v Mulkey, 153 Mich App 737 (1986); People v Letts, 122 Mich App 135 (1982).
2. Continued pressure. People v Duis above; People v Rowell, 153 Mich App 99 (1986); People v White, 411 Mich 366 (1981); People v Larcinese, 108 Mich App 511 (1981).
3. Attractive inducements or excessive consideration. People v Williams, 196 Mich App 656 (1992).
4. Use of unsupervised informant. People v Rowell, above.
5. Sexual favors. People v Wisneski, 96 Mich App 299 (1980).
6. Defendant's prior criminal record. People v Williams, above.
7. Personal benefit to informant. People v Williams, above.
8. Long lapse of time between investigation and arrest. People v Butler, above.
9. Guarantee that acts not illegal. People v Butler, above.
10. Threats of arrest. People v Butler, above.
11. Escalation of criminal culpability. People v Butler, above.
A law enforcement officer may distribute controlled substances as a means of detecting criminal activity. People v Butler, 444 M 965 (1994); People v Jamieson, above; People v Connolly and Thibaudeau, 232 Mich App 425 (1998).
Sentence entrapment occurs when a defendant, although predisposed to commit a lesser offense, is entrapped into committing a greater offense subject to greater punishment. US v Stuart, 923 F2d 607 (CA8, 1991); US v Stavig, 80 F3d 1241 (CA8, 1996) [quoted in People v Ealy, 222 Mich App 301 (1980)]; US v Brown, 110 F3d 65 (CA6, 1997) (unpublished); US v Staufer, 38 F3d 1103 (CA9, 1994).
The Fifth Amendment to the United States Constitution and Article 1 Section 15 of the Michigan Constitution provide that no person shall be tried twice for the same offense. The double jeopardy clauses of the United States and Michigan Constitutions serve two purposes:
1. protecting defendants from second prosecutions for the same offense after acquittal or conviction; and
2. prohibiting the imposition of multiple punishments on defendants for the same offense. People v Mathews, 197 Mich App 143 (1992).
The double jeopardy clause prohibits punishment in excess of that authorized by the legislature. Jones v Thomas, 491 US 3766; 109 SCt 2522; 105 LEd2d 222 (1989). A state is free to prescribe two different punishments, such as fine and imprisonment, for a single offense, but it cannot punish as two crimes conduct that constitutes only one offense within the meaning of the double jeopardy clause. Missouri v Hunter, 459 US 359; 103 SCt 673; 74 LEd2d 535 (1983).
Double jeopardy attaches when your client is put on trial before a trier of fact, whether judge or jury. People v Hicks, 447 Mich 819 (1995). Double jeopardy attaches once the judge begins to hear evidence in a bench trial. Id. Double jeopardy attaches in a jury trial once the jury has been empanelled and sworn. People v Rutherford, 208 Mich App 198 (1994).
In addition to the constitutional provisions, statutes provide that no person shall be tried on a second charge for any offense for which he has been acquitted. MCL 763.5; MSA 28.858. Retrial is barred if the court directs a verdict due to legally insufficient evidence. People v Mehall, 454 Mich 1 (1997). Entry of an order granting directed verdict cannot be stayed pending a prosecutor appeal. People v Nix, 453 Mich 619 (1996). Retrial is barred even if the legal ruling underlying the acquittal was erroneous. In re Wayne County Prosecutor, 192 Mich App 677 (1992). Retrial is also barred when the judge finds on the basis of objective facts and circumstances that the prosecutor intended to force the defendant into moving for mistrial. People v Holtzman, 234 Mich App 166 (1999). However, defendants can be retried when the mistrial results from innocent or negligent prosecutorial error or factors beyond the prosecutor's control. Id.
Your client may be tried a second time if the reason for acquittal was a variance between the indictment or information and the proof, or any insufficiency or irregularity in the form or substance of the indictment. MCL 763.6; MSA 28.856. A defendant may be brought to trial a second time if there was manifest necessity for a mistrial. Manifest necessity is determined with reference to failure of the jury to agree upon a verdict, misconduct on the part of a juror, or incurable defect in the indictment or proceedings. People v Hicks, 201 Mich App 197 (1993), rev'd 447 Mich 819 (1994); People v Thompson, 424 Mich 118 (1986) [jury deadlock].
A person cannot be tried twice for different degrees of the same offense or for attempts to commit the same offense. MCL 768.33; MSA 28.1056. Conviction of a lesser charge is considered an acquittal of higher charges for double jeopardy purposes. Price v Georgia, 398 US 323 (1970); People v Garcia, 448 Mich 442 (1995).
Prosecution on charges that have been dismissed pursuant to a plea agreement does not violate the double jeopardy clause where the newly charged offense is a different offense for double jeopardy purposes than the offense to which your client has pleaded guilty. People v Mezy, 453 Mich 269 (1996).
The double jeopardy clause of the Michigan Constitution prohibits successive state and federal prosecutions arising out of the same criminal act except where state and federal interests in prosecuting the defendant are "substantially different." See People v Cooper, 398 Mich 450 (1976); People v Avila, 229 Mich App 247 (1998). Courts consider the following when determining whether the interests are "substantially different:"
1. whether the maximum penalties of the statutes are greatly disparate;
2. whether there is some reason why one jurisdiction cannot be entrusted to vindicate fully the interests of the other jurisdiction in securing a conviction; or
3. whether the differences in the statutes are merely jurisdictional or are more substantive. Cooper, 398 Mich at 461.
Military prosecutions are considered federal prosecutions for double jeopardy purposes. People v Childers, 459 Mich 216 (1998). The same factors apply: the penalties must be similar and Michigan's societal interests must be satisfied by the military court martial.
However, federal courts do not consider a state prosecution for the same offense a bar to federal prosecution unless the offenses are "identical" (which they almost never are). Bartkus v Illinois, 359 US 121; 79 SCt 676; 3 LEd2d 684 (1959) [the federal constitution does not deny state and federal governments the power to prosecute for the same act]. However, the Petite policy of the Department of Justice only allows duplicate federal and state prosecutions when federal prosecution serves compelling interests of federal law enforcement. Petite v United States, 361 US 529, 530; 80 SCt 450; 4 LEd2d 490 (1960); Rinaldi v United States, 434 US 22; 98 SCt 81; 54 LEd2d 207 (1977). The Petite policy also bars successive federal prosecutions arising out of the same transaction. In most cases, the federal government and courts usually find some "compelling interest of federal law enforcement," which is loosely defined, and call the crime something else.
If federal prosecution is a risk, before entering a plea, you should find out whether the federal government wants to pursue your client, and then try to obtain a waiver from federal prosecution. Your client's state court plea can be used by the federal prosecutor.
Crimes committed in a continuous time sequence displaying a single intent and goal are considered to be the same transaction and a defendant can only be tried once for crimes committed in furtherance of that objective. People v White, 390 Mich 245 (1973) [defendant could not be tried separately for assault, kidnapping and rape because all three offenses met the same transaction test]. The prosecution must join in one trial all charges that grow out of a single criminal episode or occurrence. Criminal charges arise out of the same transaction where: 1) the crimes are committed in a continuous time sequence and dislay a single intent, or 2) if they are not all crimes of criminal intent, they are part of the same criminal episode and violate laws intended to prevent similar harm. Crampton v 54-A District Judge, 397 Mich 489 (1976); People v McCartney (On Remand), 141 Mich App 591 (1985). A single conspiracy cannot result in successive prosecutions in different counties. People v Wilson and Banks, 454 Mich 421 (1997). However, if your client agrees to separate trials the prosecution is not required to join all charges arising from a single criminal episode. People v Fick, 45 Mich App 435 (1973). A second prosecution is barred if it should have been joined because it met the "same transaction test." People v Sturgis, 427 Mich 392 (1986).
However, the same transaction test does not bar prosecution of all crimes committed during one criminal transaction, complete and incomplete, discovered and undiscovered, once a person has been convicted of a crime arising out of that criminal episode. See People v Williams, 61 Mich App 642 (1975) [conviction for armed robbery did not bar conviction for murder where victim died after armed robbery conviction].
When there is clear legislative intent to authorize multiple convictions and punishments arising out of a common act, there is no double jeopardy violation. People v Wakeford, 418 Mich 95 (1983); People v Robideau, 419 Mich 458 (1984); People v Ferrell, 99 Mich App 609 (1980). Even if the crimes are the same, a double jeopardy challenge based on multiple punishments will not succeed if it is evident that the legislature intended to authorize cumulative punishments. People v Fox, 232 Mich App 541 (1998). Where one statute includes most elements of the base statute and then increases the penalty as compared to the base statute, it is evidence that the legislature did not intend punishment under both statutes. People v Ward, 206 Mich App 38 (1994).
Your client may be subjected to both criminal and civil sanctions for the same act when the civil penalty serves a purpose distinct from any punitive purpose. People v Artman, 218 Mich App 236 (1996). Civil penalties can rise to the level of punishment for double jeopardy purposes if the total penalty is disproportionate to the offense committed. People v Hellis, 211 Mich App 634 (1995).
The Supreme Court distinguishes civil penalties from civil forfeitures. United States v Ursery, 518 US 267; 116 SCt 2135; 135 LEd2d 549 (1996). A civil penalty, such as a fine, can be a punishment within the meaning of the double jeopardy clause when a civil penalty is so extreme and so divorced from the government's damages and expenses, that it constitutes punishment within the meaning of the double jeopardy clause. Department of Revenue of Montana, v Kurth Ranch, 511 US 767; 114 SCt 1937; 128 LEd2d 767 (1994). Forfeitures are not criminal punishments because they do not impose a second in personam penalty for the offense. Ursery, 518 US at 276. Double jeopardy will not apply unless the forfeiture is intended as a punishment. Id. at 277; People v Duranseau, 221 Mich App 204 (1997).
There is a two-step test for determining whether the forfeiture is a punishment within the meaning of the double jeopardy clause:
1. is the legislative intent civil and remedial or criminal and punitive?
2. is the statutory scheme so punitive in either purpose or effect as to negate the legislative intent to establish a civil remedial mechanism?
Ursery, 518 US at 278.
12.1.a Motion to Quash on Insufficient Evidence Grounds (drug case) [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF
____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
____________________________________/
The Defendant, 
, by 
attorney, moves this Court to quash the felony possession
count of the information pursuant to
1. A preliminary examination before 
was held on 
.
2. The Defendant was bound over on one count of possession with intent to deliver cocaine.
3. The prosecution failed to introduce sufficient evidence of the element of intent to deliver, an essential element. People v Peterson, 63 Mich App 538 (1975).
4. The evidence produced showed simple possession, at most. 
5. Because there is no evidence of an essential element of the offense there is no probable cause to believe that
the offense was committed and the information must be dismissed,
For these reasons, the Defendant requests that the Court quash the bindover on possession with intent to deliver cocaine or, in the alternative, reduce the charge to possession of cocaine.
Respectfully submitted,
Attorney for Defendant
12.1.a.1 Memo Supporting Motion to Quash on Insufficient Evidence Grounds [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
_____________________________________/
A preliminary examination was held on May 1, 1998 to determine if there was sufficient evidence to bind Defendant over on one count of possession with intent to deliver cocaine. The prosecution produced two witnesses, Officer Steve Fuzz and Deputy Michael Bull.
Officer Fuzz observed Defendant (whom he knew) and a woman (later identified as Defendant's wife) who was holding a glass in front of a bar in Capac, Michigan. (TR Cite) He further testified that the Defendant took the glass and the woman's purse, ducked behind the cars parked along the street, and threw down what Fuzz thought was a little plastic bag. (TR Cite) Fuzz then exited his car, physically contacted Defendant, searched him, handcuffed him, placed him in the back of the patrol car, yelled for the female to return, called for back up, secured the scene with tape, and finally, went back to "find" the plastic bag which contained 2 smaller plastic bags, each containing a white substance. (TR Cite). The plastic bag was put in the trunk of the police car and later taken into the police station and tagged as evidence. (TR Cite).
According to Deputy Bull, the first time he saw the alleged bag of evidence was later that evening at the police station. (TR Cite). He testified hat he was shown two small corners of a plastic bag, each containing a substance he believed to be cocaine. (TR Cite). Bull averred that the laboratory report stated that one bag had been weighed and contained 1.2 grams and, in his opinion, would sell for $100. (TR Cite).
Bull acknowledged that a user might possess one gram but maintained that a user would not typically possess two grams. Bull searched Mr. Doe's car and home and did not find any cocaine in either place.
WHERE THERE WAS INSUFFICIENT EVIDENCE OF INTENT TO DELIVER PRODUCED AT PRELIMINARY EXAMINATION, DEFENDANT'S BINDOVER SHOULD BE DISMISSED.
There must be evidence presented at preliminary examination on each element of the crime charged, or
evidence from which those elements may be inferred. People v Doss, 406 Mich 90 (1979); People v Juniel, 62 Mich App
529 (1975).
The defendant's intent to deliver can be inferred from the mere possession of large amounts of a controlled substance. Wayne County Prosecutor v Recorder's Court Judge, 119 Mich App 159 (1982).
In this case, the fact that two small bags of cocaine were in a larger bag, amounting to less than 2 grams (less than the quantity contained in two packs of sugar substitute), worth between $100 and $200, is not evidence of intent to deliver. While a seller might sell it this way, it is also true that a buyer would buy it this way. The minimal amounts both as to quantity and value do not give rise to an inference of intent to deliver. Far greater amounts have been recognized by courts as consistent with personal use. United States v Myers, 646 F2d 1142 (CA6, 1981) [3 ounces could be purchased for personal use]; People v Gay, 149 Mich App 468, 386 NW2d 556 (1986) [2.94 ounces (83 grams) of cocaine could be purchased for personal use]. In contrast, see Wayne County Prosecutor v Recorder's Court Judge, 119 Mich App 159; 326 NW2d 825 (1982), holding that possession of 37 coin envelopes and 50 marijuana cigarettes is evidence of intent to sell.
On the other hand, the fruitless searches of the Defendant's person, car and house establish that Defendant is not a dealer. If the Defendant was intending to sell the cocaine, it would stand to reason that he would package and possess much more at some other location. People v Darwich, 226 Mich App 635; 575 NW2d 44 (1997) [logical inference that defendant who sold drugs at one location, his store, would package them at another location, his home].
Because there was no evidence produced from which an inference can be drawn regarding
intent to deliver cocaine, the evidence is insufficient and the information must be dismissed.
Respectfully submitted,
Attorney for Defendant
12.1.b Motion to Quash on Insufficient Evidence Grounds (murder case) [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
/
Defendant, 
, by 
counsel, moves this Court to dismiss the charge of murder for
the following reasons:
1. On 
, following a preliminary examination, 
was bound over on the charge
of "open murder."
2. Such a charge allows the jury to be instructed to consider first-degree murder.
3. To establish first-degree murder, the proseutor must prove that the defendant intended to kill the deceased, that his intent to kill was premeditated, and that the killing was deliberate. People v Gill, 43 Mich App 598 (1972). Since no evidence was presented to establish any of these elements, the information must be quashed.
4. It is incumbent upon this court to dismiss because since there is no evidence which would support the charge of first-degree murder, then the Defendant is exposed unnecessarily to the risk of an unfair compromise verdict in this matter. "[W]here a jury is permitted consideration of a charge unwarranted by the proofs there is always prejudice because a defendant's chances of acquittal on any valid charge is substantially decreased by the possibility of a compromise verdict." People v Vail, 393 Mich 460, at 462 (1975). Although the Supreme Court in People v Graves, 458 Mich 476 (1998) overruled the automatic reversal rule of Vail, the Court stated that reversal might be warranted where the defendant is acquitted of the improperly submitted charged offense and is convicted of the next-lesser offense. [In Graves, the defendant was acquitted of first and second-degree murder and convicted of manslaughter, so reversal was not warranted].
5. The fact that 
assaulted the deceased (although not in a lethal way) after the initial act of
self-defense does indeed present a factual question for the jury. But that factual question is whether
committed second-degree murder, voluntary manslaughter or a justifiable homicide.
There simply is no evidence of first-degree murder available to the prosecution.
For these reasons, 
requests that this Court quash the information charging open murder
against 
.
Respectfully submitted,
_______________________
Attorney for Defendant
12.2.a Motion to Dismiss on Procedural Grounds (failure to state claim) [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
/
The Defendant, 
, by 
attorney, moves this Court to grant this motion to dismiss
the complaint for the following reasons:
1. 
is charged with
2. The complaint merely recites the statutory language, 
, without any factual allegations, in
support of the alleged criminal conduct.
3. To be guilty of 
, 
requires that a defendant must have acted in
.
5. Because the complaint fails to sufficiently state a violation of 
it should be dismissed as a
matter of law. MCR 2.116(C)(8).
6. Because the facts asserted by the prosecution, when viewed in a light most favorable to the prosecution, cannot
support a violation of 
, the complaint should be dismissed as a matter of law. MCR
2.116(C)(10).
For these reasons, the Defendant requests that this Court dismiss the complaint.
Respectfully submitted,
Attorney for Defendant
12.2.b Motion to Dismiss on Procedural Grounds (delay in arraignment) [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
____________________________________/
The Defendant, 
, by 
attorney, moves this Court for an order dismissing the
information. This motion is based on MCL 766.4; MSA 28.922, and the following:
1. On 
, 
was arraigned on 
.
2. On 
, 
was bound over at a preliminary examination on
that same charge.
3. MCL 776.4; MSA 28.1262(2) requires that a preliminary examination be conducted within 14 days of a defendant's arraignment.
4. Because there is no good cause for the delay the charges must be dismissed. People v Weston, 413 Mich 371 (1982).
For these reasons, 
requests that the Court dismiss the information.
___________________________________
Attorney for Defendant
12.3 Motion to Dismiss on Entrapment Grounds [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs
No. 
Hon. 
,
Defendant.
/
The Defendant, 
, by 
attorney, moves this Court to dismiss the 
for the following reasons:
1. Defendant is charged with 
for delivering 
of 
to
, an informant working for the police.
2. Defendant claims that he was entrapped as a matter of law. The test for entrapment is an objective test, focusing on the conduct of the police, and whether the "probable and likely outcome [is] the instigation rather than the detection of criminal activity." People v Juillet, 439 Mich 34, 54 (1991); People v Jamieson, 436 Mich 61 (1990).
3. The following factors demonstrate that defendant was entrapped.
4. Defendant requests an evidentiary hearing in order to present evidence in support of his claim of entrapment.
For the above reasons, 
requests that this Court dismiss the charges against him, or
conduct an evidentiary hearing on the entrapment claim.
Respectfully submitted,
Attorney for Defendant
12.4.a Motion to Dismiss on Double Jeopardy Grounds (multiple prosecutions) [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
_____________________________________/
The Defendant, 
, by 
attorney, moves this Court to dismiss the information.
This motion is based on 
state and federal constitutional protection against double jeopardy and
the following:
1. On 
, 
was involved in
2. On 
, 
3. On 
, 
pled guilty to the charge of
4. As a result of 
plea, 
was sentenced to 
.
5. Subsequently, on 
, 
was charged in this action with
based on the same conduct.
6. No individual can be placed in jeopardy twice for the same offense. US Const, Ams V & XIV; Const 1963, art 1, §15; North Carolina v Pearce, 395 US 711; 89 SCt 2072; 23 LEd2d 656 (1969); People v Jankowski, 408 Mich 79 (1980).
are intended to punish the same conduct.
8. Because 
has already been convicted and punished for 
conduct, this case must be
dismissed. People v Stewart, 138 Mich App 629 (1984).
For these reasons, 
requests that this Court dismiss the information in this case.
____________________________
Attorney for Defendant
12.4.a.1 Memo Supporting Motion to Dismiss On Double Jeopardy Grounds (multiple prosecutions) [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
____________________________________
PEOPLE OF THE
STATE OF MICHIGAN
Plaintiff,
vs No. 
Hon. 
,
Defendant.
/
No individual can be placed in jeopardy for the same offense twice. US Const Ams V, XIV; Const 1963, art 1, §15; North Carolina v Pearce, 395 US 711; 89 SCt 2072; 23 LEd2d 656 (1969); People v Jankowski, 408 Mich 79 (1980). Both the United States and Michigan constitutions protect a criminal defendant against: (1) successive prosecutions for the same offense, and (2) multiple punishments for the same offense. Blockburger v US, 284 US 299; 52 SCt 180; 76 LEd2d 306 (1932); US v Dixon, 509 US 688; 113 SCt 2849; 125 LEd2d 556 (1993); People v White, 390 Mich 245 (1975). Michigan's "same transaction" test for successive prosecutions affords greater protection than the federal "same elements" test. People v White, above. However, where multiple charges tried at the same time are involved, the appropriate test is whether the legislature authorized multiple punishment. People v Wakeford, 418 Mich 95 (1983); People v Robideau, 419 Mich 458 (1984). These principles prohibit a prosecutor from seeking a second prosecution both after acquittal and after conviction, and further prohibits a court from imposing multiple punishments for the same offense. See People v Anderson, 409 Mich 474 (1980), cert den 449 US 1101 (1981); People v Stewart, 138 Mich App 629, 633 (1984); People v Wakeford, 418 Mich 95, 103, n.5 (1983).
The test for whether a subsequent prosecution, as in the instant case, is barred by constitutional principles is whether "the charges against a defendant grow out of a single criminal act, occurrence, episode or transaction," People v White, 390 Mich 245, 254 (1973) [quoting Ashe v Swenson, 397 US 436, 450-454 (1970)], and "whether the offenses involve laws intended to prevent the same or similar harm or evil." Crampton v 54-A District Judge, 397 Mich 489, 502 (1976). Legislative intent is a critical piece of any double jeopardy analysis. People v Robideau, 419 Mich 458 (1984); People v McCartney (On Remand), 141 Mich App 591, 594 (1985).
For example, a defendant's conviction for felonious driving cannot stand where he has previously pled nolo contendere to a charge of driving under the influence of intoxicants arising out of the same incident. People v Stewart, 138 Mich App 629, 637 (1984). In Stewart, the defendant was operating a Jeep and struck a bicyclist causing severe and disabling injuries. He was charged in district court with driving under the influence of intoxicants, entered a plea of nolo contendere and was sentenced to 90 days in jail. Id. at 631. Approximately five weeks later, the defendant was charged by information with felonious driving and was found guilty by a jury. On appeal, the Court of Appeals held that the Double Jeopardy Clause had been violated because the case involved "laws intended to prevent the same or similar harm or evil, not a substantially different or a very different kind of, harm or evil." Steward, above, (emphasis in original).
In the instant case, the traffic violation of failure to use due care and caution and the crime of vehicular negligent homicide were both enacted in order to protect the public from irresponsible and careless drivers. The legislature's purpose in criminalizing negligent driving which causes death was to curb reckless and careless driving. People v McMurchy, 249 Mich 147 (1930). This is the same "evil" intended to be prevented by the failure to use due care and caution infraction. Notwithstanding the decriminalization of traffic offenses, even an act of ordinary negligence which would otherwise be punishable only as a civil infraction may appropriately be punished as negligent homicide when death results. People v Abramczyk, 163 Mich App 473 (1987).
The two charges 
has faced, failure to use due care and caution and negligent homicide,
not only arose out of a single event, but "[m]ost important, [the charges involve] 'laws intended to prevent the same
or similar harm or evil, not a substantially different or a very different kind of, harm or evil.'" People v Stewart, 138
Mich App at 635-636. People v Crampton, 397 Mich at 502. The facts that gave rise to the infraction of failure to use
due care and caution are the exact same facts as gave rise to the instant charge of negligent homicide. In fact, the
Defendant's alleged failure to use due care and caution is the very basis of the negligent homicide charge. But for
Defendant's alleged failure to use due care and caution, there would be no "negligence" upon which to base the negligent
homicide charge.
Because 
has already been convicted and sentenced for his acts, he cannot face a second
prosecution, and a second penalty.
Respectfully Submitted,
Attorney for Defendant
12.4.b Motion to Dismiss on Double Jeopardy Grounds (multiple punishments) [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
_____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
_____________________________________/
The Defendant, 
by 
attorney, moves the Court to dismiss the charge against 
because 
right to protection against double jeopardy has been violated. This motion is based on the Fifth
Amendment to the United States Constitution, Article 1 Section 15 of the Michigan Constitution, and the following
reasons:
1. On 
, 
was arrested for Soliciting and Accosting, pursuant to 
, while
in 
in 
.
2. As a result of 
arrest, the County Sheriff's Department sought civil forfeiture of his
, 
, pursuant to 
unless 
paid the Sheriff's
Department $750.00. Exhibit A (notice from Sheriff's Department)
3. Upon payment of the $750.00, the Sheriff's Department returned 
car.
4. Over sixty days later, 
was charged with one count of Soliciting and Accosting.
.
5. The Fifth Amendment to the United States Constitution and Article 1, section 15 of the Michigan Constitution provide that no person shall twice be put in jeopardy for the same offense. US Const Am V; Const 1963, art 1, §15.
6. The Double Jeopardy Clauses of the United States and Michigan Constitutions prohibit the imposition of multiple punishments for the same offense. People v Mathews, 197 Mich App 143 (1992).
7. MCL 600.3801; MSA 27A.3801, declaring vehicles that are used for the purpose of prostitution to be nuisances, and MCL 750.448; MSA 28.703, making it a misdemeanor to solicit another from a vehicle to commit prostitution, punish the same conduct.
8. While a state is free to prescribe a fine and imprisonment as punishment for a single offense, it cannot punish as two crimes conduct that constitutes only one offense within the meaning of the Double Jeopardy Clause. Missouri v Hunter, 459 US 359; 103 SCt 673; 74 LEd2d 535 (1983).
9. The Defendant's alleged conduct constitutes only one crime within the meaning of the Double Jeopardy Clause because it satisfies the "same transaction test." People v White, 390 Mich 245 (1973). The conduct displayed a single intent and goal.
10. The Double Jeopardy Clause prohibits punishment in excess of that authorized by the Legislature. Jones v Thomas, 491 US 376; 109 SCt 2522; 105 LEd2d 322 (1989).
11. The maximum punishment for soliciting and accosting is a fine of not more than $100.00 and not more than
ninety days in jail. MCL 750.504; MSA 28.772. Any criminal punishment in addition to the civil penalty of
$750.00 already paid by 
would exceed the punishment authorized by the Legislature.
12. A civil penalty constitutes punishment when it is extreme and divorced from the government's damages and expenses. United States v Ursery, 518 US 267; 280; 116 SCt 2135; 135 LEd2d 349 (1996); People v Duranseau, 221 Mich App 204 (1997) [double jeopardy is violated when the civil penalty previously assessed is overwhelmingly disproportionate to the government's damages and expenses].
For these reasons, 
requests that this Court dismiss the charges against him.
Respectfully submitted,
Attorney for Defendant