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Patrick Barone recently provided expert commentary for WUSA9 reporter Evan Koslof. On his Verify news series, Mr. Koslof seeks to shed light and truth on common questions, misconceptions and outright myths. After a video surfaced of a New York warrant’s division officer arresting a protestor off the street and stuffing her into a van, many on social media have questioned the validity of the police action. One contention on social media was that the police were wrong because they apparently did not the protestor her Miranda Rights before they arrested her.  Mr. Koslof wanted to know if the Miranda Rights are truly necessary and how a failure to read the Miranda advisement might impact the police action. To help him with these legal issues, Mr. Koslof sought out two experts, a seasoned criminal defense attorney and law school professor. The video and article can be viewed by clicking here.

The central question raised in Mr. Kaslof’s investigation was whether the police are required to read a person their Miranda rights when they are being arrested?  The answer by Mr. Barone? – A resounding “no.”

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Patrick Barone’s appearance on the WUSA9 news show Verify.

It is with sadness and a heavy heart that the Barone Defense Firm announces that on July 24, 2020, Mr. John Fusco, died at his home in Ohio.  He was 77 years old.

John was the CEO and owner of National Patent Analytic Systems (NPAS) in Mansfield Ohio. John was a pilot and had a deep passion for flying. Under his leadership NPAS, located adjacent to an airstrip, successfully procured contracts to manufacture and test aircraft parts for the US Government and others. Also, in 1986 NPAS acquired an early version of the breath test instrument that became the NPAS DataMaster.  Subsequently, NPAS continued to refine and improve the DataMaster and created several different iterations of the device, culminating in the DataMaster DMT, widely considered the best alcohol breath testing instrument available. Michigan and several other states use the DataMaster DMT exclusively for law enforcement purposes, including drunk driving arrests.

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Dave Radomski, Patrick Barone, John Fusco

With new cases of Covid-19 continuing to escalate in Michigan, on July 10, 2020, Governor Whitmer responded with Executive Order 2020-147, which indicates that “[A]ny individual who leaves their home or place of residence must wear a face covering over their nose and mouth.” The Order further provides that masks must be worn in any indoor public space and on all public transportation. Also, face masks are now mandatory when you are a passenger on any ride-sharing vehicle, such as Lyft or Uber, or in any private car when being used as “hired transportation.” Will this mandatory Covid-19 face mask requirement have any impact on law enforcement practices? Specifically, will a lack of a face mask by driver or a vehicle’s occupants lead to probable cause to stop a motor vehicle?

To answer this interesting legal question, we begin by noting that the Executive Order does make a failure to comply a crime.  Specifically, the order provides that a failure to wear a required face mask is a misdemeanor, though no jail time may be imposed for its willful violation. An open question in all this is how and even whether the police in the State of Michigan will enforce this Order?

As it relates to the existing law governing when the police may stop a moving vehicle, the general rule is that they must have “probable cause.”  However, there are many circumstances when the police may lawfully stop you, including and perhaps most commonly, for a violation the traffic code such as speeding. In 2014, the United States Supreme Court, in the Navarette case indicated that a vehicle may be stopped based on an anonymous 911 call provided the caller provides enough information and detail to have the indica of reliability and therefore enough to give rise to a reasonable suspicion that criminal activity was afoot.

A St. Louis Missouri couple have garnered national attention for their actions involving their firearms while at their home during a protest, which has now led to Felony criminal charges.  To add to this drama the Missouri Governor has stated that he would pardon the couple, and interestingly the Attorney General has put himself into the case by filing a brief and demanding charges be dropped.

According to a CNN Article, ‘”It is illegal to wave weapons in a threatening manner at those participating in nonviolent protest, and while we are fortunate this situation did not escalate into deadly force, this type of conduct is unacceptable in St. Louis,” Circuit Attorney Kimberly Gardner said in a statement.

In Missouri, and according to the local prosecutor, these actions are considered a Felony.  However, in Michigan, the alleged conduct described would be most similar to Michigan’s brandishing law, found at MCL Sec. 750.234e. This crime is punishable by up to 90 days in jail, which means it is considered a misdemeanor criminal offense. ‘”Brandishing” is defined as: to point, wave about, or display in a threatening manner with the intent to induce fear in another person.’ We’ve also previously addressed brandishing.

New numbers showing increases in Covid-19 illness and death suggest that infections in Michigan and the United States have not yet peaked.  In response, Governor Gretchen Whitmer has ordered bars in many parts of Michigan to close again. According to the Detroit News, Whitmer’s order says that an establishment must close if its alcohol sales make up 70% or more of its gross revenue. This means that most nightclubs, strip clubs, and bars that don’t serve food must close or change their businesses to fit the guidelines. To help make up for the loss of income, bars can offer cocktails and drinks to-go and outdoor seating instead of closing completely.

Really? Are to-go Cocktails Legal?

To-go cocktails were illegal in Michigan before a new law passed on July 1, 2020. Previously, to-go cocktails would be considered open intoxicants in a motor vehicle, which is a misdemeanor in Michigan. Under the new laws passed by the Michigan legislature and signed by Governor Whitmer, bars and restaurants may now offer to-go cocktails and customers may take them away from the establishment from which they were purchased. Presumably, the majority of people will be driving to and from the restaurant or bar to grab their to-go cocktails.

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George Tompkins , a Texas pharmacist from Houston, was recently given a 10-year prison term after a jury convicted him of multiple felony counts, including health care fraud, money laundering and wire fraud.  Known as the “compound king”, the 75-year-old was also convicted of conspiracy to pay and receive kickbacks.  Mr. Tomkins was first arraigned on the 17-count indictment back in February 2018.

The evidence received by the court during the 6-day jury trial suggested that Mr. Tompkins, working with others, devised a health care prescription fraud scheme whereby they unlawfully received almost twenty-two million dollars in government payments for prescriptions that were medically unnecessary. The money was paid to Tomkins by the Department of Labor, and most of the prescriptions were given to patients referred to them by and through their contract to provide such services to state and federal employees. The payments were contracted through the Federal Employees Compensation Act program (FECA).  Many hundreds of patients were involved in this prescription fraud scheme.

To assist in their criminal enterprise, Mr. Tompkins and his cohorts created a couple different shell companies through which much of the fraud was run.  They used these companies to launder their ill-gotten proceeds. Part of the fraud involved continuing to ship prescriptions to their “patients” even after they had repeatedly been told to stop sending them.

A research letter recently published in the JAMA Internal Medicine Journal examined the correlation between the legalization of recreational marijuana and traffic fatalities. The letter’s authors Kamer & Warshafsky begin with the proposition that marijuana use impairs driving ability. The authors go on to suggests that because there is a correlation between an increase in traffic deaths and the legalization of recreational marijuana, impaired driving must be the cause. The authors of the letter reviewed data collected from four states: Colorado, Oregon, Washington, and Alaska. The authors did not look at traffic deaths in Michigan because there isn’t enough data from Michigan yet.

The authors found that traffic deaths increased by 75 per year in Colorado. The authors did not find an increase in traffic deaths in Washington. Overall, the letter predicts that if every state fully legalizes marijuana, traffic deaths would increase by 6,800 every year in the United States. Time will tell whether Michigan will be like Colorado, and see a large increase in traffic deaths, or like Washington where there was no such increase.  And time will also tell if any observed increase in Michigan is actually caused by marijuana impaired drivers. The impaired driving lawyers at the Barone Defense Firm note that correlation is not causation, and that the only thing this letter has established is correlation.  The authors admit that much more research is needed on this topic, and that their findings were “mixed.”

What’s the difference between impaired by marijuana and under the influence of marijuana?

The short answer is yes. There is no Michigan law specifically on this topic and the existing laws in Michigan do not otherwise preclude the wearing of a Covid-19 facemask while otherwise carrying a firearm in Michigan.

In Michigan, the Covid-19 Pandemic has brought significant changes and restrictions to Michiganders.  One of the often-debated pandemic guidelines is the requirement to wear a facemask. Currently, there is no absolute rule on the facemask requirement, and the guidelines on this topic vary between counties, municipalities, stores, and restaurants to wear facemasks.  While the actual scientific merits of the facemask requirements may remain up for debate, it also leads to significant questions of legality.

One of the questions frequently asked of the Michigan Gun Lawyers at the Barone Defense Firm is whether a person carrying a firearm can do so legally while wearing a facemask.  Obviously, wearing a facemask while carrying a pistol into the local Kroger feels like you are going to rob the place, but is it illegal?

Immediately upon your arrest for DUI in Michigan the arresting officer notified the Secretary of State. This happens when the arresting officer destroys your plastic license and prepares a DI-177, which is entitled “Breath Blood or Urine Report Michigan Temporary Driving Permit.”  This document becomes your paper license and you will use it to drive until you are convicted or until your case is dismissed.  A DI-177 is only prepared if you agree to take a breath or blood test when asked by the arresting officer.

If you refused to submit to a breath or blood test then the officer will prepare a DI-93, which is entitled “Report of Refusal.” This too becomes your paper license but is only good for 14 days or until after you win your appeal hearing. Because you are not allowed to refuse a breath or blood test your license will be suspended for a year unless your Michigan DUI lawyer demands a hearing within this 14-day period.

Both the DI-93 and the DI-177 are filed with the State of State, and your driving record will reflect this fact.  This means that even before you are convicted of anything in Michigan your driving record will reflect that you have been arrested under the suspicion of drunk driving. All of this applies for any kind of intoxicated driving including driving under the influence of marijuana.

One of the many unintended consequences of the government’s response to the Covid-19 pandemic may well be a significant increase in financial fraud. This is due in part to the central banks lowering of the prime interest rate to zero percent. With money this “cheap” companies and individuals are encouraged to borrow money, which is all well and good until the money must be repaid. And when money is cheap, individuals may use the money they have borrowed recklessly, taking greater risks of loss.

Financial fraud occurs when an individual or corporation offers to provide goods, services, or financial benefits knowing that that these things do not and may never exist. In these situations, the victims of financial fraud trade money for these benefits, but never receive what’s been promised to them.  This is because the perpetrators of the financial fraud know that the benefits  do not exist, were never intended to be provided, or were misrepresented. Typically, victims give money but never receive what they paid for.

Possibly the most famous historical example of financial fraud occurred in the 1870s and is referred to as a “Ponzi scheme.”  Charles Ponzi was a businessman and financier who created the Securities and Exchange Company.  Using this as a front to defraud, Mr. Ponzi took money from investors, and then, after a mere 45 days, promised to return to them a 50% profit.  Trouble was that the money was never “invested.” Ponzi simply took the new money he was being paid today to pay off the older investors.  Also called a “pyramid scheme” a Ponzi scheme can only last so long, and like all Ponzi schemes, it eventually collapsed.

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