Criminal Evidence

Barone Scheduled to Teach Michigan Criminal Defense Lawyers About New Roadside Drug Testing Laws

Published on: August 13, 2020 | by Barone Defense Firm

The Criminal Defense Attorney Association of Michigan (CDAM) has asked Michigan DUI Lawyer Patrick Barone to present a 1-hour Webinar to criminal defense lawyers seeking to learn about recent changes to Michigan law impacting how intoxicated driving cases are investigated at the roadside.

The seminar, entitled Michigan Law Update: Roadside Drug Testing – What You Need to Know, will include a detailed analysis of Michigan’s roadside saliva drug testing program. In this workshop, Mr. Barone will teach other lawyers how to address these preliminary screening tests in court, and how to avoid defense traps that may befall the unwary.

In recent years, law enforcement at all levels of government, State and National, have begun focusing on the investigation and arrest of drivers intoxicated by drugs other than alcohol. Interest in drugged driving has increased with the advent of medical and recreational marijuana, and the saliva swab roadside testing program is designed to facilitate drugged driving arrests.

Barone Busts the Miranda Rights Myth on WUSA9 Television Appearance

Published on: July 30, 2020 | by Barone Defense Firm

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.”

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

Will Covid-19 Face Masks Lead to More DUI Arrests in Michigan?

Published on: July 24, 2020 | by Patrick Barone

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 Missouri Mansion, but Not a Michigan Castle. Michigan’s Castle Doctrine Explained.

Published on: July 22, 2020 | by Michael Boyle

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.

Michigan’s Legalized Recreational Marijuana May Lead to More Impaired Driving Traffic Deaths

Published on: July 2, 2020 | by Ryan Ballard

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?

Does Michigan CPL Shooter Who Killed Armed Gunman Have a Viable Self Defense Claim?

Published on: June 16, 2020 | by Patrick Barone

Recent Mlive news reports that a Michigan CPL (Concealed Pistol License) holder shot and killed a gunman who was “seen firing gunshots into the air and pointing a handgun at motorists.” Will the CPL holder literally get away with murder, or will he go to prison? The question depends on how Michigan’s Stand Your Ground Law is interpreted.

According to Michigan’s Stand Your Ground Law, a person may use deadly force against another if, but only if, he or she honestly and reasonably believe that the use of deadly force is necessary to prevent the imminent death or imminent great bodily harm or imminent sexual assault to himself or herself or to another individual. This is a simplified paraphrase of Michigan Compiled Laws section 780.972.

On a plain reading of the law therefore, it would appear that the CPL shooter has a viable self-defense claim. This assumes that three things are also true, because if they’re not, then no self-defense. First, the CPL shooter must not have been himself engaged in a crime. This seems like a reasonable assumption based on what little has been reported about this incident so far. Second, he must have been somewhere he was legally allowed to be. Again, we do not know the answer from the reports, but it seems likely the CPL shooter was not trespassing or otherwise someplace he wasn’t lawfully allowed to be. Finally, the CPL shooter must have believed that deadly force was the only way to defend himself or another person. This seems self-evident.

More Police Officers Trained to Use Roadside Drug Tests to Make DUI Arrests in Michigan

Published on: June 13, 2020 | by Patrick Barone

There are 32 new drug recognition “experts” (DRE) qualified to make DUI arrests in Michigan. Only a trained DRE may administer the saliva tests in a DRE DUI investigation. Including this new crop of 32 DREs, there are currently 157 a total of DRE trained officers in Michigan.

The use of “oral fluid” drug tests began as a pilot program in Michigan in late 2017 and lasted one year. Initially, the devices were only used in DUI investigations in five Michigan counties, including Berrien, Delta, Kent, St. Clair, and Washtenaw Counties. During this time a little more than 7 drivers per month were tested. No information is available relative to number of Michigan DUI arrests that followed.

The DRE officers in this pilot program used a device called a SoToxa Mobile Test System. This device tests a DUI suspect’s saliva for the presence of amphetamines, benzodiazepines, cannabis (delta 9 THC), cocaine, methamphetamines, and opiates. As such it is only used to give a yes/no answer to the question of whether a drug is present. The test does not give a number, or a quantitative drug level. Therefore, it cannot indicate if a driver is actually DUI.

FBI Raid Leads to Several Medicare and Medicaid Prescription Fraud Charges

Published on: June 12, 2020 | by Patrick Barone

As part of an ongoing investigation by the Federal Bureau of Investigations, several of Michigan’s pharmacists have been charged with Medicare and Medicaid Prescription Fraud. The allegations include claims that at least one scheme lead to the defrauding of the Federal Government of more than five million dollars. Further, that fraudulent claims were submitted to Medicare, Medicaid and Blue Cross via the service dialdrugspharmacy.com. Medications fraudulently prescribed included Clozapine and Alprazolam. According to the complaint, some of these prescriptions were written for dead people.

According to Title 18 of the United States Code, health care fraud consists of the knowing implementation (or attempted implementation) of a scheme intended to defraud a health care program using false pretenses. A pharmacist can violate this law even if they are ignorant of the law itself, or if they only have the “general intent” to violate the law. This is because health care fraud under this section is not a specific intent crime. The law defines “fraud” as being the intentional deception or misrepresentation of facts which lead to the receiving of an unauthorized benefit. But here again the intent need only be general and not specific. According to the Michigan prescription fraud lawyers at the Barone Defense Firm, this can lead to unfair prosecution of pharmacists who never specifically intended to violate the law.

There are many kinds of prescription fraud. Once type of prescription fraud involves a scheme whereby a prescription is set on “auto-refill” and then billed as scheduled when the patient never actually ordered or wanted the medication. These prescriptions are never picked up but the pharmacy non-the-less bills Medicare. This same medication can be “re-sold” many times over, thereby increasing the size of the auto-refill fraud. Another version of this kind of fraud involves giving the undelivered pills to patients, staff or medical sales reps for redistribution. This is most common with Opioid drugs that have significant street value.

Michigan’s Statutory Rape Exception – Romeo and Juliet Law

Published on: June 8, 2020 | by Ryan Ballard

Generally speaking, Romeo and Juliet laws were developed to prevent or lessen prosecution of a young adult engaged in consensual sexual activity with a minor. For example, some Romeo and Juliet laws would prevent an 18-year-old from being prosecuted for statutory rape for having consensual sex with a 15-year-old. So, what is Michigan’s Romeo and Juliet law?

What is Michigan’s Age of Consent?

To understand Michigan’s Romeo and Juliet law, a basic understanding of Michigan age of consent law is helpful. The age at which a person can legally consent to sexual activity in Michigan is 16 years old. This means that anyone under the age of 16 does not have the legal capacity to consent to sexual activity.

My Michigan DUI Case is Waiting on Blood Test Results. Do I Need to Hire a Lawyer Right Away?

Published on: May 29, 2020 | by Ryan Ballard

Driving under the influence (DUI), or in Michigan Operating While Intoxicated (OWI), is usually charged using a breath test result. However, due to the recently discovered breath testing fraud, more often Michigan DUI cases are charged using a blood test result. Breath test results are available immediately after the test is administered at the police station or jail. Blood sample results, however, can take weeks or months to be returned from the Michigan State Police (MSP) forensics lab. The prosecutor in a DUI case generally, but not always, waits for blood results to submit formal charges because if the result is over .08 then the case can be charged under Michigan’s Unlawful Blood Alcohol Level law. And if the test result is above a .17, then it is considered a super-drunk driving.

What is the Process That My Blood Sample Goes Through?

If you have gone through a Michigan DUI arrest that involved a blood sample, you may have noticed that the police officer provided special vials to be used for the sample. These blood collection vials come from a kit that is specifically made for police agencies in Michigan to collect blood samples for criminal investigations. There should be two vials with grey caps. Sodium fluoride should be in the vials to properly preserve the blood. The vials are sent to the Michigan State Police forensics lab in Lansing for testing. Once tested, the results are sent back to the arresting agency, and the prosecutor for that agency. The prosecutor will review the matter, and if appropriate, will file DUI charges against you in court. If the blood is being tested for alcohol only, the process usually takes three to six weeks. If it’s also being tested for drugs, it could take months. During the coronavirus pandemic, the results could take even longer to be returned.