Mimesis Law
21 September 2019

Nine Years Later, That Open Drug Warrant Is Still There

August 1, 2016 (Fault Lines) — One of the problems with media coverage is that it’s often fueled by clickbait instead of a serious attempt to help people to understand the issues involved. It’s easier to understand this if one stops thinking about the readers and viewers of news as the customers of the news organization. Their real customers aren’t their readers but their advertisers.

The readers are the product. And, besides sex, nothing drives eyeballs to the screen like the latest outrage from the world of criminal law. Thus, the screaming headlines every time a reporter can quote someone who sounds authoritative, regardless of bias; or every time an appellate court reaches a decision that benefits someone whom right thinking people everywhere hate.

Sometimes, though, the misplaced outrage happens on behalf of a sympathetic defendant, and in the interest of intellectual honesty, it’s necessary to point that out as well. In Bay City, Michigan, as the headline puts it, a woman faces felony charges for having one pill nine years ago. My God, comes the chorus, doesn’t the prosecutor have anything better to do?

It’s not quite that easy. Here’s how it went down:

On April 24, [2007], Michigan State Police troopers on patrol spotted Provencher and another woman sitting near the front door of the former Linden Hof restaurant at 201 N. Euclid Ave., by then already closed down. The women were pouring a drink from a paper bag into paper cups, then attempted to conceal the items when troopers approached them, court records show.

Provencher and her companion told the troopers they were staying at the Bay Area Women’s Shelter. Asked by the troopers for identification, Provencher began pulling items from her coat pocket, including an oval pill she said was Seroquel, a prescription antipsychotic medication used to treat schizophrenia, bipolar disorder, and depression.

As it turns out, the drug was actually dihydrocodeinone, an opioid prescription pain killer, and a schedule III controlled substance. Back at the shelter, she was unable to provide a prescription or explain why she had the pill. The article then fast forwards to the present day, and explains that she has a court date coming up on August 4.

Does the prosecutor in Bay County have nothing else to do? Was he auditing his files and decided that a decade after a homeless woman had one pill, this threat to public safety had to be eliminated? Probably not.

Here’s why: drug cases generally require a lab report before the case can be either tried or pled.[1] The reason for this is fairly obvious. If being prosecuted for possession of cocaine, the Court needs to be sure that the white, powdery substance in the Ziploc bag really is cocaine; and not, say, baby powder. Logistics being what they are, crime labs can often take several months before they are able to test a sample and get it back to the prosecutor.

Prosecutors can handle this in one of two ways. One option is to file the charges immediately, thus putting another case on the docket for several months of “Request continuance pending lab report.” This can actually work to the defendant’s advantage. Given six months to wait for a lab report, plus another three or four or six (depending on how good a defense attorney is at stalling), you’d be surprised how many drug addict defendants are motivated to get cleaned up, get treatment, get back into school or get a job.

True, the motive might be as much to look good to a sentencing judge as having seen the error of their ways, but clean is clean. Especially when discussing simple possession cases, for addicts who aren’t too far gone the threat of prison followed by a spell of probation can be enough to get them on the straight and narrow.

The other way for the prosecutor to handle these types of cases is to not file charges until the lab report gets back. This has the advantage of reducing the time the case spends in court, but while waiting for the report a lot of things can change. The defendant’s address, for example.

Once the report comes back and charges are filed, assuming an attempt was made to contact the defendant to show up in court for an arraignment, there’s no guarantee that the defendant will get the notice. So an arrest warrant goes into the system, and things get put on hold until the defendant is arrested. For nonviolent, victimless crimes, the police are less likely to beat the bushes to find him, and the case gets going when he’s picked up for a speeding ticket or otherwise comes to the police’s attention.

That’s likely what happened here. A few months after the State Police’s encounter with Provencher, the lab report came back, and the prosecutor filed charges. If they attempted to send her a court notice, it was at the women’s shelter, and Provencher was long gone. So the warrant sat in the system until 2016, when Provencher, for whatever reason, appeared on the police’s radar screen again.

So this isn’t a case of prosecutorial overzealousness. Provencher stayed out of trouble for nine years (good on her, by the way), but in 2016 she ran into a police officer, who discovered she had a warrant. She was given a court date, and the wheels started turning. It’s not that there aren’t problems with the War On Drugs. One can question the wisdom of making the possession of one pill’s worth of opiate a felony. But the War On Dawn Provencher isn’t a question of malice, it’s just circumstances. It’s that when a warrant goes into the computer, the computer doesn’t forget.

[1] A defendant has the option of simply admitting that the substance is illegal without a report, which is generally what happens when he can’t make bail.

2 Comments on this post.

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  • TMM
    1 August 2016 at 10:55 am - Reply

    From the brief summary in the article and the on-line docket sheet, it looks like the local prosecutor probably filed as soon as the office had received and reviewed the police report (less than two months after stop). However, based on the docket sheet, when the arraignment letter was sent to the last known address, it was returned to the court and a warrant issued when Provencher missed the arraignment date.

    In any case, every prosecutor’s office treats these situations differently. Some file charges based on p.c. (field test for common drugs, looking up pill in some source for prescribed substances) expecting that — in the vast majority of cases — the lab report will come back and expected (and, during that time, the defendant can obtain counsel putting the two sides in a position to resolve the case upon receipt of the lab report). Some wait for lab reports on the off-chance that the report will come back negative.

    Similarly, prosecutor’s offices treat outstanding warrants differently. Some offices periodically review outstanding warrants to see if any cases were so stale to not justify keeping the warrant outstanding. (When I was in a rural office, we tried to do this every couple of years, but sometimes the press of active cases put the review on hold for a period.) For other offices, cases on warrant status are literally “out of sight, out of mind” and only get looked at when the warrant is served.

    Probably best practice in the computer age (where almost every file is at least partially in an electronic data base) would be to automatically schedule a case for review when a warrant has been outstanding for a certain period (the time frame would probably differ based on the nature of a case — a routine misdemeanor might be review after a year, a violent felony maybe after three or four years) to determine if the office still wanted to proceed with the case. However, as with many “best practices,” inertia (i.e. we have never done it that way, we have never thought about it, reprograming our software system to automatically trigger a review will take too much time for our IT department, too much money for outside programmer) probably will keep most offices from implementing a standard review policy.

  • Chris
    1 August 2016 at 1:33 pm - Reply

    Should be easy to get dismissed.

    State’s delay was prejudicial. Witnesses have gone by the wayside. Unconstitutional to not be playing golf etc..