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On May 11, 2020, a Southwest Michigan prosecutor arrested for DUI after crashing his car. He was later observed pouring  liquid out of a container in an apparent attempt to conceal evidence.  The container was later determined to have contained alcohol, and so the prosecutor was charged with open intoxicants as well as drunk driving.

If Convicted of DUI in Michigan He May End Up in Jail

The potential penalties for a first offense DUI, called OWI or Operating While Intoxicated in Michigan, include a maximum penalty of up to 93 days in jail. Additional sanctions include a fine of up to $500 fine, court costs and cost recovery, in addition to a crime victim rights fee and a judgement fee.  On top of this, if convicted of DUI this prosecutor is likely to serve a term of probation, be ordered to complete up to 45 days of community service, be ordered to complete some form of counseling and could even lose his car through vehicle forfeiture.

On May 6th, 2020, Secretary of Education and Michigan native, Betsy Devos, issued new rules under Title IX of the United State’s Federal Laws. Title IX is the section of the laws that prescribe more generally any form of discrimination on the basis of sex for any program receive federal funding. The rules and procedures set out under this section of Title IX also apply to domestic violence, sexual assault, stalking, and dating violence. The new rules govern when and under what circumstances colleges and universities may deal with alleged instances of sexual misconduct among students.

When is Sexual Activity Among Students Misconduct?

Devos’s new rules define sexual harassment as unwelcome conduct that is so severe, pervasive, and objectively offensive. This new definition is narrower than that under the Obama administration’s rules. The previous rule required conduct to be severe or pervasive as opposed to severe and pervasive. That one-word difference can be crucial. For example, one instance of sexual harassment may not be enough to trigger a school’s requirement to investigate the claim.  Victim’s advocate groups are not happy with this change and believe that it effectively denies some victims access to the school’s programs.

Former RICO Prosecutor Offers Insider Tips for Avoiding Opioid and Prescription Fraud Investigations
The Barone Defense Firm is pleased to announce that Patrick Barone and Keith Corbett will be co-presenting to the Oakland County Bar Association’s Medical Legal Committee on April 4, 2019. Their presentation will offer attendees an insider view of the federal government’s tactics, objectives and methods of conducting an opioid fraud investigation. They will also offer tips for avoiding governmental scrutiny as well as what to do when contacted by the government.

Mr. Corbett will take the lead role in this presentation.  He is an entertaining and informative speaker and will draw upon the wealth of knowledge and experience gained over the three decades he spent under the employ of the Department of Justice (DOJ), the institution charged with the investigating and prosecuting Medicare fraud. As Chief of the Organized Crime Strike Force for the United States Attorney’s Office, Mr. Corbett gained invaluable insight into what happens “behind the curtain” of the government’s opioid investigations.  He will use this knowledge to provide seminar attendees with insider tips for avoiding the scrutiny of the Federal Government and offer advice for how to handle the threat of prosecution when such scrutiny becomes unavoidable.

This topic is currently of great concern to all health care professionals and the attorneys representing them due to the increasing federal pressure to investigate and hold responsible all health care professionals who engage in prescription fraud, with a special emphasis on cases involving opioids. For example, the Department of Health and Human Services announced late last year that they would spearhead a much more aggressive stance on prescription fraud, with a focus on stemming the opioid crisis in America. These increased efforts included the dispatch of 300 new prosecutors whose efforts will be supervised by an Opioid Coordinator in each Department office.  The number of prosecutions and excluded providers is expected to increase in 2019.

When is a Doctor’s Referral Fee a Crime?
It is unlawful for a doctor to receive any kind of payment or thing of value when the underlying services are payable by a Federal Health Care Program, including Medicare and Medicaid.  Services may include medical services, drugs or supplies.  The thing of value can include money, restaurant meals, event tickets, hotel rooms etc.  Less obvious might be additional and/or excessive compensation for a particular job, such as a consultancy.  In legal terms such compensation is called a “remuneration.”

Based on the Anti-Kickback Statute, found at 42 U.S.C. § 1320a-7b(b) it is a crime to either pay or receive such remuneration.  The law indicates as follows:

(b) Illegal remunerations

If you are charged in Michigan with possession of Marijuana and/or Possession of Marijuana with Intent to Deliver, and the search producing the drugs is unlawful, your case can be dismissed.  That’s effectively what happened in the case of People v. Mahdi, where Mr. Mahdi was convicted of two counts of possession with intent to deliver less than 50 grams of a controlled substance, MCL 333.7401(2)(a)(iv), and one count of possession with intent to deliver less than 5 kilograms of marijuana, MCL 333.7401(2)(d)(iii).

In investigating this crime, the police found out where Mr. Mahdi lived, then tricked his mother into giving them consent to search her house where he lived.  The police did this because consent is an exception to the Fourth Amendment search warrant requirement.  In searching the home, they did not find any drugs but did find keys, a cell phone and a wallet.  This led the police to the apartment where they did find the drugs that became the basis of the felony drug charges. Also, while in possession of the phone, the police were able to retrieve calls from individuals ostensibly attempting to purchase drugs.

The court held that Mr. Mahdi’s mother had the authority or ability to consent, but because the police said they were going to search for drugs, but found keys, wallet and phone, the search exceeded the consent given.  Her consent was for the limited purpose of uncovering drugs.  Thus, the wallet, keys and phone were not lawfully seized by the police.

In the recent Michigan Supreme Court case of People v. Cunningham, the court was called upon to decide if Michigan law[i] provides courts with the independent authority to impose costs upon criminal defendants. This question was presented because Cunningham was ordered to pay $1,000.00, but there was no indication in the court’s order as to the basis for these costs.

The Supreme Court ruled that this $1,000.00 in unspecified costs was not consistent with Michigan law which provides courts with the authority to impose only those costs that the Legislature has separately authorized by statute.

If you are convicted of DUI in Michigan, the in additions to any allowable fine, the court will also order you to pay court costs.  As it relates to Michigan DUI cases, the most contentious issue about this court costs is often the charges for “costs of prosecution.”  Michigan DUI law does allow the court to order you to pay costs of prosecution if you are convicted of DUI because these are allowed by statute.

The lynchpin of Michigan drunk driving prosecution is a reliable breath testing program.  Prosecutors have big problems when this reliability is legitimately called into question.

This is exactly what has happened recently in Texas where it is reported that between 1200 and 4000 breath tests were fraudulently verified.

According to the Houston Chronicle a Department of Public Safety contractor by the name of Deetrice Wallace fraudulently manipulated the state’s breath testing machines causing thousands of wrongful DUI convictions.  Instead of changing the reference sample every month as required Wallace instead falsified the tests and pocketed $146,000 in profit.

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