Michigan Criminal Defense Law Blog

Michigan has been particularly hard hit by Covid-19, and our Governor Gretchen Whitmer has responded with a series of executive orders effectively ordering residents into house arrest. Under the most recent shelter in place Executive Order 2020-42, citizens are allowed to leave their homes only for things necessary to sustain life, such as to obtain food and medicine. Even then, Michigan’s governor has ordered that citizens make maximum use of delivery services, meaning there is a near total lock down until May 1, 2020. Consequently, all bars and sit down restaurants remain closed, as are public gatherings of almost any size, even in one’s home.

While alcohol consumption in Michigan is on the rise during the pandemic meaning people are now drinking copious quantities inside their homes, often as part of a virtual happy hour with friends, they are not leaving their homes or driving their cars. As a result, the Michigan’s economy is at a near halt, and with it, so too are DUI arrests.

On top of this, police resources are strained by covid-19 personnel losses, and the already strained police forces are refocusing efforts toward enforcing the governor’s shelter in place orders, a misdemeanor punishable by up to a $1,000 fine and up to 90 days in jail. With the roadways nearly empty, and fewer police on patrol, far less traffic stops are occurring.

It has been widely reported in a rather sensational story that a 6-time murderous drug dealer from the City of Detroit avoided jail by becoming a DEA informant. The big questions are what did the DEA know about their informant’s background, and did the information he provided justify the informant’s extraordinary deal?  According to Barone Defense Firm attorney Keith Corbett, the DEA knew about their informant’s dangerous criminal history and the DEA’s deal was a bad one.

This story, which was widely reported in the Detroit area news media, was eventually picked up by the United Kingdom’s Daily Mail.  The individual involved is Kenyel Brown, and according to the UK Daily Mail article “Brown was hired as an informant for the Detroit Police Department and the Drug Enforcement Administration in a joint task force.”  Our local paper, the Detroit Free Press reported that Brown was released from custody at the request of federal law enforcement officials. It was U.S. District Judge Bernard Friedman who actually signed the release.

In addition to the alleged 6 murders, Brown had other criminal legal problems.  For example, he violated the terms of his probation by failing to remain abstinent from drugs and alcohol, missing mandatory meetings, and, picking up a drunk driving charge!  Judge Freedman was aware of all this, but decided to give Brown a break because, in addition to all of his criminal wrongdoing, he was “doing some of the right things” too.

In a series of public communications, the Michigan State Police have admitted that many of the more than 200 DataMaster DMT breath test machines used in the state were fraudulently certified.  The full extent of the fraud as well as it’s meaning and impact to those arrested and prosecuted for allegedly driving drunk remains to be revealed. In the meantime, the integrity of the breath test results for all drunk driving cases throughout the State is being called into question.  Accordingly, the Michigan State Police (MSP) has ordered that all breath test DMT instruments throughout the State be taken out service immediately. While the investigation into the extent of the criminal activity is investigated, all suspected drunk drivers will have their blood withdrawn for testing. This blood can be withdrawn with the consent of the driver, or by a warrant, if the driver refuses to give blood.

Here is a chronological record of how MSP and their breath test program ended up in this tenuous situation:

1. 1. On September 1^st, 2011, Michigan entered contract # 071B1300379 with National Patent Analytic Systems (NPAS) for the purchase of 300 DataMaster DMT breath test instruments.  This contract, which amounted to over Three Million Dollars, included a three-year period of maintenance to be performed by NPAS employees.

The Michigan State Police have recently announced that they have created the “Diversion Investigation Unit (DIU)” to help combat opioid prescription fraud within the State. The newly formed DIU will investigate licensed health care professionals for possible prescription fraud.  Prescription fraud happens any time a health care professional prescribes or distributes a controlled substance for anything other than an appropriate medical purpose within a proper physician/patient relationship.

An example of this would be writing fake or fraudulent prescriptions for pain killers, including opioids, which have a high potential for abuse. This might happen when a doctor is supplied with names of people who are not his/her patients and he/she then writes them a prescription.  Another example is when a doctor sees a patient one time and writes the opioid prescription without a proper examination and in the absences of a “real” physician/patient relationship.  The patient never returns for follow-up, and the disability leading to the pain being treated is never verified.

Michigan’s DIU will generally look at four things before beginning their investigation: