Domestic Violence Charge Dismissed
Sexual Assault Charges Dropped
Felony Heroin Possession Case Dismissed
DUI Case Dismissed
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Michigan DUI law provides that if an arrest is Constitutionally invalid then dismissal is the appropriate remedy. Most drunk driving cases begin with a traffic stop. When a police officer believes that the driver may have been drinking or using drugs, the driver will be asked to step from the car for further evaluation after which the driver may be arrested.  If this arrest is invalid, then the DUI case must be dismissed.

The DUI arrest usually follows a field investigation.  This field investigation usually begins with the administration of one or more field sobriety exercises, continues with the administration of a preliminary roadside breath test (PBT), and concludes with an arrest.  Each of these steps is a “Constitutional” event subject to careful review and analysis by a skilled Michigan DUI lawyer.

To be Constitutionally valid, an arrest must be informed by probable cause.  Michigan case law provides that a PBT result above the legal limit is enough to establish probable cause.  This means that in many Michigan DUI cases where a PBT was administered, the question becomes whether the PBT itself was lawfully administered.

Prosecutors and investigators for the United States Department of Justice and the State of New York announced last week an indictment on federal health care fraud charges on a licensed pharmacist and business owner in New York. The basic allegations are that the pharmacy owner paid off customers (in other words, provided kickbacks) to fill fake prescriptions at his pharmacy. The pharmacy would then bill the prescriptions to Medicaid and Medicare. However, the government alleges that either prescriptions drugs were never actually given to the customers or that drugs of lesser value were given, and that it was a scheme to fraudulently get reimbursed by Medicaid and Medicare.

What is a kickback under federal law?

The prescription fraud lawyers at the Barone Defense Firm have provided a detailed discussion about the Federal Anti-Kickbacks Statute previously.  The statute refers to a kickback payment as “remuneration.” Remuneration basically means cash or anything else in value. For example, in this case, the government alleges that the pharmacy owner gave customers coupons valued up to $5,000.00 in exchange for customers submitting fraudulent prescriptions.

Once you have been arrested on a Federal Complaint and Warrant, the government must hold a preliminary exam with 14-21 days unless you consent, and good cause is shown. Otherwise, the rules require that you be released. However, you can only be held on a complaint. You cannot be prosecuted further on a complaint and warrant.  To prosecute you further, the government must either file an information or obtain an indictment.

To better understand this, it is helpful to consider that when the government believes that you have committed a felony over which the federal courts have jurisdiction, the prosecution for this crime may be initiated by the government in one of three ways. The most common of the three is the criminal indictment. However, in certain circumstances, the government may determine that there is a need to forgo the grand jury and instead will prepare and file a complaint. This procedure is governed by Rules 3-5.1 of the Federal Rules of Criminal Procedure.

A compliant, and the necessary probable cause to support it, may be based in whole or in part on hearsay. According to Rule 3 of the Federal Rules of Criminal Procedure, a complaint must contain the essential facts of the crime alleged, and must be presented to a magistrate judge, under oath. Rule 4 of the Federal Rules of Criminal Procedure provides that, in reviewing the warrant and deciding whether to issue an arrest warrant, the magistrate judge must determine whether the complaint establishes probable cause to believe 2 things; first that the crime alleged has been committed and that second that the defendant committed it.

A new law in Michigan makes it somewhat less likely that persons charged with misdemeanor drunk driving, including first and second DUI offenses, will go to jail. This is because Public Act No. 395 of 2020, which was signed into law by Governor Whitmer on January 4, 2021, creates a rebuttable presumption against incarceration for most misdemeanor offenses, including most misdemeanor drunk driving offenses.  The effective date of the new law is March 24, 2021.

The new law amends Michigan Compiled Laws Section 769.5. Subsection 3 of this law indicates that there is a rebuttable presumption that a person convicted of a misdemeanor will be sentenced to a fine, or community service, or some other non-specified non-jail and non-probation sentence. The only circumstances under which a sentencing judge may depart from this presumption is if they state on the record “reasonable grounds” for doing so. The term “reasonable grounds” is not defined.

The law also provides that if the offense in question is punishable by both a fine and imprisonment, the court can impose one but not the other, or both. However, if the court does impose both a fine and incarceration, or just incarceration, then as indicated, the Judge must articulate on the record reasonable grounds for doing so.

On February 1st, 2021, Michigan governor Gretchen Whitmer allowed restaurants in Michigan to reopen at 25 percent capacity. Although the 25 percent capacity limit was initially extended, Whitmer recently announced that capacity limits will soon be further loosened.

Springtime Brings the Biggest Surge in Drinking Since the Holidays

The loosening of the Covid-19 restrictions for restaurants and public spaces comes at a time when people usually start going out more. Spring is on the way. The weather is getting warmer. Restaurants will be setting up patios. And major sporting events will be taking place.

A package of new laws allows some of Michigan’s repeat drunk drivers to possibly avoid mandatory minimum jail sentences. As a result of these changes, mandatory minimum sentences have been modified or removed from Michigan’s drunk driving statute, and this means that Judges may now sentence a drunk driver to any term of imprisonment, from zero days up to the maximum otherwise provided for the offense.  The new law does not change the applicable fines or maximum possible terms of imprisonment, it only eliminates the mandatory aspects of the minimum sentences, making it possible for some repeat DUI offenders to avoid incarceration.

Legislative History of the New Michigan DUI Laws

These changes arose out of House Bill 5845, which was introduced in June 2020.  The proposed law went through several permutations until it was approved by both houses by a vote of 506 to 38 in December 2020.  Shortly thereafter it was introduced to Governor Whitmer. The Bill was signed into law by the Governor on January 4, 2021 and becomes effective on March 24, 2021.

President Biden recently signed an executive order seeking to have the rules applicable to sexual misconduct cases reviewed.  Previously, President Trump had increased the due process of rights of the accused, bringing them more in line with the constitutional rights afforded those accused of sexual assault crimes in state and federal courts.

What Happens if a Student is a Victim of Sexual Assault?

If a college student believes that they have been sexually assaulted and want to bring the perpetrator to justice, they have many choices.  They can go to the police just as with any other crime.  Alternatively, they can report it their school. Or they can do both. Or they can have both done for them. Much of this will depend on the particular school involved.

A Marijuana Microbusiness in Michigan is like a Microbrewery in the alcohol industry.  A Marijuana Microbusiness is an excellent opportunity to allow an entrepreneur to launch an integrated marijuana business where, as a licensee, you can grow, process, and sell your products to adults 21 years of age or older without depending on other suppliers.

This type of marijuana license opens opportunities to the individuals with a small business mindset to develop a unique product only available from a single microbusiness location.  An entrepreneur in this business segment could carve out a niche market and create a demand for a product that consumers are willing to drive the extra hour to obtain.  Marijuana Microbusiness is the perfect opportunity to differentiate your product from the products offered by the masses.

Do Michigan’s marijuana laws provide for a marijuana microbusiness?

In the most basic terms, statutory rape means consensual sex with a minor child. Michigan does not actually call this “statutory rape” to describe this crime. Instead, Michigan’s rape laws use the phrase criminal sexual conduct as the term for statutory rape.

Michigan’s rape laws are divided into four degrees of criminal sexual conduct. All four degrees can be triggered by the age of at least one of the actors, fitting the generic definition of statutory rape. Regardless of the degree of criminal sexual conduct, the basic idea of statutory rape is preserved under these laws, which is that an individual under the age of consent does not have the capacity to consent and, therefore, cannot give consent.

Thus, even if a person under Michigan’s age of consent is 100% willing and voluntarily agrees to engage in the sex act, they still cannot legally consent.  In this instance, yes does not mean yes.

Cyber-attacks in general are on the rise.  In 2020 we witnessed security breaches at Solarwinds, Twitter, and Marriott and many other businesses. But hackers are no longer just focusing on the big giants.  Today’s headlines include prominent law firms who are falling victim to cyber-attacks.  Recently, we saw Jones Day law firm on the defense of a cyber-attack.  Jones Day, who has many prominent clients including former President Donald Trump, had files stolen and posted on the dark web.  But Jones Day is not alone, many law firms lack strong cybersecurity programs, thus making them prime targets to cyber-attacks.

Today, bad actors continue to scope out new targets.  Law firms are an attractive target because of the sensitive data that they retain.  Many law firms have access to highly confidential corporate data in addition to sensitive individual personal data.   Law firms house highly sensitive information like financial data, corporate strategies, trade secrets, business transaction information, and other private information.  In all these cases, law firms have both a legal and ethical obligation to protect their client’s data.  As lawmakers attempt to enact legislation to protect consumer’s data, this ever changing legislative landscape is often difficult to maintain and implement.

Relying on in-house counsel or your IT department is not enough.  To ensure your law firm is ready for a data breach, it is critical to have a cybersecurity attorney on retainer.   IT security professionals are stretched thin.  Many outsourced IT resources have multiple clients that they service.  In an environment where we find a shortage of security expertise, recruitment and retainment of IT security staff is a challenge.  They are often difficult to find and if you are lucky to have a dedicated IT security professional, rarely do they understand the law.  State, local and sometimes international laws have specific legal requirements for the protection of private and privileged information, an IT team cannot manage on their own.

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