I get a lot of questions about the “77 Day Rule” from folks charged with a DUI. This mysterious rule that is rumored to exist inspires people to hope that a drunk driving charge will simply disappear, and they can move on with their lives. The truth is that I still field questions about this archaic rule from practicing lawyers.
The 77 Day Rule does exist, but it does not help win DUI cases. To the contrary, it is used as a weapon to hurt a person’s ability to defend a drunk driving case.
The 77 Day Rule essentially said at one time that all DUI cases must be resolved within 77 days of the filing of the charges. Prior to 1994, courts frequently dismissed drunk driving cases when the prosecutor was unable to proceed to trial after 77 days had elapsed. At that time, MCL 257.625b stated in part that:
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The court shall, except for delay attributable to the unavailability of the defendant, a witness, or material evidence, or due to an interlocutory appeal or exceptional circumstances, but not a delay caused by docket congestion, finally adjudicate, by a plea of guilty or nolo contendere, or the entry of a verdict, or by other final disposition, a case in which the defendant is charged with a misdemeanor violation of [Michigan's drunk driving laws] or a local ordinance substantially corresponding to section [those drunk driving laws], within 77 days after the person is arrested for the violation or, if an arrest warrant is reissued, not more than 77 days after the date the reissued arrest warrant is served.
In 1994, the Legislature amended the statute, and the courts stopped dismissing cases after 77 days had elapsed. Today, the same statute states:
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Except for delay attributable to the unavailability of the defendant, a witness, or material evidence or due to an interlocutory appeal or exceptional circumstances, but not a delay caused by docket congestion, the court shall finally adjudicate, by a plea of guilty or nolo contendere, entry of a verdict, or other final disposition, a case in which the defendant is charged with a misdemeanor violation of [Michigan's drunk driving laws] within 77 days after the person is arrested for the violation or, if an arrest warrant is issued or reissued, not more than 77 days after the date the issued or reissued arrest warrant is served, whichever is later.The court shall not dismiss a case or impose any other sanction for a failure to comply with this time limit. The 77-day time limit does not apply to [felony charges].
So, the law says that “[t]he court shall not dismiss a case or impose any other sanction for a failure to comply with this time limit.” There is no constitutional right to have a drunk driving case adjudicated within 77 days, and the statute is crystal clear in its edicts to the courts.
Speedy Trial Rights
Of course, an accused is still entitled to a speedy trial under both the state and federal constitutions. In terms of those speedy trial rights, Michigan Courts have held that the following should be considered in deciding whether the right to a speedy trial has been violated:
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(1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right to a speedy trial, and (4) any prejudice to the defendant. Barker v Wingo, 407 U.S. 514, 530; 92 S Ct 2182; 33 L Ed 2d 101 (1972); People v Hill, 402 Mich 272, 283; 262 NW2d 641 (1978); People v Metzler, 193 Mich App 541, 546; 484 NW2d 695 (1992). A delay of more than eighteen months is presumed to be prejudicial and the burden is on the prosecution to prove lack of prejudice to the defendant. Id.; People v Lowenstein, 118 Mich App 475, 487; 325 NW2d 462 (1982). Pursuant to Barker, the presumptively prejudicial delay triggers an inquiry into the other factors to be considered in the balancing of the competing interests to determine whether a defendant has been deprived of the right to a speedy trial. People v Rosengren, 159 Mich App 492, 506; 407 NW2d 391 (1987). See also People v Chism, 390 Mich 104, 112; 211 NW2d 193 (1973).
People v Wickham, 200 Mich App 106, 110 (1993).
In essence, if a case is brought to trial, it must be resolved before a year and a half has elapsed. An eighteen-month delay might result in a constitutional violation. From a crusty defense attorney’s perspective, it is necessary to underscore the word “might.”
The 77 Day Rule as a Weapon
Nowadays, the “77 Day Rule” is essentially used as a weapon in contested drunk driving cases. If you plan on actively defending a DUI charge, a qualified DUI defense lawyer needs time to prepare an attack on the government’s case.
The lawyer must obtain police reports, chemical test logs, information about the officer, videos from the police car and the police station, radio transmission reports, and a whole litany of other evidence. Obtaining those materials takes time, and police and prosecutors do not rush to release these materials.
After the client’s initial materials are received, motions must be filed, trial strategies must be explored, medical diagnoses must be made by doctors and dentists, and expert witnesses need to be retained. Lawyers need time to research motions, and scheduling a doctor’s appointment on the run can be a nightmare. Expert witnesses might be booked for months at seminars and training events.
The bottom-line is that attacking a DUI charge is not easy, and a great defense does not spring into existence overnight. Quite frankly, it takes more than 77 days.
Some jurisdictions will find that good cause exists to allow a defense attorney time to obtain materials and prepare a defense. Others are not so kind, explaining that “DUI cases are simple, routine cases,” effectively terminating many defenses and precluding an accused from calling qualified experts at trial. This has become known as the “rocket docket,” and serious questions could be raised against about the constitutionality of these practices.
There is nothing easy or routine about a drunk driving case when the accused is actually innocent, but the breath or blood test result standing alone is more than enough evidence to an acrimonious judge.
Every person is guaranteed the right to effective representation by an attorney. Unfortunately, cases that speed along to trial in 77 days (and often times, far fewer days) preclude even the best DUI defense lawyer from presenting an effective defense. As a result, the 77 Day Rule is a weapon used to deny an accused a fair trial, which is a far cry from its original roots as a shield employed to dismiss drunk driving cases.