March 30, 2019

Take Down Your Graduation Tassel!

Jose R. Fanego, a top defense attorney in Oakland County

I recently handled an interesting case involving a motorist who was stopped by the police for allegedly having obstructed vision through his windshield. The officer claimed that because my client had his high school graduation tassel hanging from his rearview mirror, it obstructed his vision of the roadway. The stop of the automobile then spilled over into other areas, which produced the discovery of a controlled substance. My client was then charged with possessing that controlled substance. This case is interesting for a lot of reasons. First, most people in Michigan do not know that it is unlawful to drive with any obstruction on or near the windshield of their motor vehicle. Most people can see that perhaps a huge pair of fuzzy dice hanging from the mirror of a ’57 Chevy might cause an obstruction. What they don’t realize is that the way the law is written in the state of Michigan is that any object that obstructs vision can lead to a moving violation citation. More importantly, however, it can lead to the stop of an automobile and what I consider to be an unreasonable search and seizure.

Michigan Compiled Law 257.709 says that “a person shall not operate a motor vehicle with any of the following:…(c) an object that obstructs the vision of the driver of the vehicle, except as authorized by law.” The law goes on to say in section (3)(c), “This section does not apply to the following:…the placement of a necessary certificate or sticker that does not obstruct the driver’s clear view of the roadway or an intersecting roadway.” This conversation is all about the enormous power that our police have to stop motorists for practically any reason whatsoever. The way this law is drafted suggests to me that if a police officer is intent on stopping your vehicle for any reason or suspicion, be it race, gender, age, or even spite, this section of the law permits the officer to stop a law-abiding motorist and thereby violate his constitutional rights. Think about it; you get an oil change at one of our local establishments and without your even realizing it, the mechanic places a sticker on the inside of your windshield telling you that you should come back for another visit in 3,000 miles. You go on about your business and get stopped by a police officer because he does not believe that the sticker is “necessary” as defined under our law, or, he simply thought from a distance that perhaps that sticker was interfering with your vision. Or consider the case of the motorist who has a GPS device on his dashboard. Even though the device is not on the windshield, a police officer may stop him because he wants to investigate whether it is obstructing the motorist’s vision of the roadway. The way this law is written, it is a possibility that a police officer, who may have an illegitimate motive to stop a motorist, can do so claiming that his sun visor was down too far and obstructed the motorist’s vision.

In my years of criminal defense practice, I have seen numerous cases begin with a motorist’s stop because of obstructed vision. We must confront the ridiculous notion that a simple graduation tassel hanging from a rear view mirror could somehow prevent the motorist from seeing oncoming traffic or traffic signal devices. This law is obviously a very pro-law enforcement law, and not a pro-motorist law. It is ironic to me that the motorists I usually represent who are stopped for this justification tend to be very young in appearance or very ethnic in appearance. One thing is for sure: I have never yet represented a senior citizen whose vehicle was stopped because the officer believed their eight-inch by four-inch plastic handicapped parking tag hanging from their rear view mirror obstructed their vision.

Two cases from the Michigan courts address this issue. People vs. Fisher at 463 Mich. 881 and People vs. Dillon at 296 Mich. App. 506. Both uphold the police officer’s right to stop a vehicle on the suspicion that the object may be obstructing the motorist’s vision, even if it is later determined not to do so. The Dillon case is decided on two grounds. First, the idea of an Ohio v Terry stop. The second, under a challenge for being void for vagueness. What is interesting to me is while Dillon upholds the Michigan law as not being void for vagueness, all the cases I have just described were decided before 2010, when Michigan amended its law. The law used to say it was unlawful to have any object dangling from the rear view mirror. It now simply says any ‘object that obstructs.’ The argument is that if the law was declared not to be void when the statute attempted to be very specific by referring to dangling objects as opposed to fixed ones, the amended statute simply became more general and is therefore much more likely to be declared void. It’s clear that as currently written, it has its own conflicts. I referred to one earlier when I said the statute prohibits any objects that obstruct vision and yet does permit necessary stickers, for example, parking lot passes, to be stuck on the windshield, as long as they do not obstruct vision. This gives our police officers far too much discretion to determine within their own minds what is legal and what is not legal when the average motorist would obviously have a very tough time deciding that for themselves. I believe this situation is ripe for a constitutional challenge, and is simply in need of the client who is highly motivated and well-funded enough to take the challenge through our Michigan courts. Think about it, and tune in for the next edition.