Michigan Criminal Defense Lawyer Blog

Can Off Duty Officer Concealed Carry in Court?

Published on: January 21, 2019 | by Patrick Barone

The answer will depend on the written security policy of the individual court. Police officers and other law enforcement officers are advised to check with the specific court prior to attempting to conceal carry.

Michigan law provides that any person with a CPL may carry anywhere in the State of Michigan unless otherwise precluded. Most of the areas that are prohibited carry zones are set forth in Michigan Compiled Laws sec. 28.425o. Subsection 5 of this law sets forth the people who are exempt from these restrictions and who may therefore otherwise carry in weapons free zones. Provided certain licensing requirements are met, exempted persons include the following:

A retired police officer, retired law enforcement officer, or retired federal law enforcement officer, a private investigator or private detective, a corrections officer, a motor carrier officer or capitol security officer, a member of a sheriff’s posse, a parole, probation, or corrections officer, a state court judge, a court officer, a peace officer.

Operating an Unlicensed Marihuana Facility Now a Crime in Michigan

Published on: January 15, 2019 | by Patrick Barone

Effective January 1, 2019, it is now a crime to operate a marihuana facility in Michigan without a license. The new law was signed by Governor Snyder on December 28, 2019 and was part of a host of changes made to the Michigan Medical Marihuana Licensing Act (MMMLA) just prior to the Governor leaving office. The new section is found at MCL 333.27407a, and provides that, depending on the type of violation, the person who unlawfully operates a marihuana facility is guilty of either a misdemeanor or a felony punishable by up to four years in prison.

The Michigan Medical Marihuana Licensing Act creates five different kinds of marihuana licenses. The term “marihuana facility” is defined as a location at which a licensee is licensed to operate under this act. This term therefore includes a facility where marihuana is grown, processed, tested or sold (provisioned). This term could also theoretically apply to a facility used to house trucks or otherwise used to do business as a marihuana transporter.

According to this new law, it is a now a crime for a person, including a corporation, to hold itself out as a marihuana facility if the person does not hold a license to operate that marihuana facility or if the person’s license to operate that marihuana facility is suspended, revoked, lapsed, or void, or was fraudulently obtained or transferred to the person.

Do I Need a Lawyer for My Michigan Driver License Restoration?

Published on: January 2, 2019 | by Patrick Barone

Reinstate License Online Michigan | Lawyers to Help Get License Back

If your license was revoked due to multiple OWI convictions, then a license revocation lawyer will help maximize the chances of getting your license back. It is possible to do it yourself, but this is not recommended.

Don’t let your prior bad experience with lawyers keep you from hiring one this time.If you want your driver license reinstated, your best chance involves hiring a Michigan license reinstatement lawyer. Here’s why:

What’s the Difference Between OWI and OUIL?

Published on: December 27, 2018 | by Patrick Barone

OWI and OUIL are acronyms describing two different ways a prosecutor can prove the crime of drunk driving in Michigan. The acronym OWI refers to the more general crime, while OUIL describes a specific way to prove a specific crime which is that of drunk driving. In other words, the acronym OUIL relates to a certain kind of proof at trial. Either way, both OWI and OUIL ultimately relate to the same crime.

This crime can be found in Michigan law at MCL 257.625, which sets forth all the different ways intoxicated driving can be proved. The general term for intoxicated driving is OWI which stands for operating while intoxicated. The crime of OWI really consists of several different crimes depending on the type of intoxicating substance present. Thus, OWI can describe intoxicated driving crimes involving alcohol, prescription drugs, and non-prescriptions drugs like cocaine or even marijuana.

When it comes to intoxication by alcohol, the acronym OUIL applies to one of the two ways the crime of OWI can be proved in court. This stands for Operating Under the Influence of Liquor. To prove this crime, the prosecutor will often use what is called the observation evidence. This usually relates to all the evidence other than the breath or blood test. Observation evidence is usually broken down into the parts, and these come from the three phases of the drunk driving investigation.

Michigan Recreational Marijuana Users Advised to Avoid Firearm Possession

Published on: December 10, 2018 | by Patrick Barone

Now that Michigan has legalized the recreational use of marijuana, many citizens want to know how they can possess and use recreational marijuana without running afoul of the law. It will take many years for the legislators and courts to sort this all out, and in the meanwhile, recreational users may unknowingly place themselves at risk for criminal prosecution or other adverse legal consequences. One area that is particularly rife with such risks is the combination of marijuana and firearms.

An example of this this risk relates to the possession or use of marijuana while also being in the possession of a firearm. While this article focuses on State law there is also an interplay between Federal law and marijuana, and this interplay is the subject of a different article on this site.

As it relates to State law, Michigan gun owners should know that it is unlawful in Michigan to possess a firearm under the influence of alcohol, drugs or a combination of alcohol and drugs. There are two separate laws that apply to this scenario, one of which appears in the criminal code and one of which appears in the firearms statute. Both contain provisions applicable to the possession of a firearm under the influence of marijuana, but there are important differences as well.

DUI Defendant’s Constitutional Right to Confront Chemical Test Remains Clear as Mud

Published on: November 30, 2018 | by Patrick Barone

In the past decade, the United States Supreme Court has issued several opinions addressing a DUI defendant’s right to confront a breath or blood test used by the prosecution to prove intoxication at trial. In legal terms, the word “confront” essentially means cross-examine. An example of this confrontation right in the context of a drunk driving case would be the right to cross-examine the police officer who administered a breath test, or the forensic analyst who prepared a blood sample for testing. This issue came before the USSC again in 2018. The name of the case is Stuart v. Alabama. Unfortunately, the USSC declined the opportunity to clarify this issue, and by order dated November 19, 2018, denied the defendant’s petition for review (certiorari).

However, there was a dissenting opinion written by Justice Gorsuch and joined by Justice Sotomayor. This opinion contains some interesting information. Perhaps picking up the cross-examination baton laid down by Justice Scalia, Justice Gorsuch refers to cross-examination as “the greatest legal engine ever invented for the discovery of truth.” Furthermore, that:

Cross-examination is an essential guard against such mischief and mistake and the risk of false convictions. Even the most well-meaning analyst may lack essential training, contaminate a sample, or err during the testing process.

Can I Have a CPL and be a Medical or Recreational Marijuana User?

Published on: November 28, 2018 | by Patrick Barone

No, according to Federal law, you are not allowed to both use medical or recreational marijuana and have a Michigan Concealed Pistol License (CPL). This is due to a conflict in state and federal law.

Michigan is not the only state facing this dilemma. For example, a man in Pennsylvania has filed a lawsuit seeking clarity regarding gun ownership rights. According to the HuffPost,

A medical marijuana prescriber and patient is challenging President Donald Trump’s administration over a federal statute barring cannabis users from purchasing or owning firearms, even when they take the drug legally pursuant to state law.

In a Drunk Driving Investigation Must Police Read Me My Rights?

Published on: November 26, 2018 | by Patrick Barone

Yes, when you’ve been stopped for drunk driving the police must read you your rights. In fact, the police may be required to read to you three separate sets of rights; one related to the roadside or preliminary breath test (PBT), the second set of rights related to the second breath test at the station, and under certain circumstances, the police must read to you your Miranda rights prior to questioning you. Each of these sets of rights is discussed below.

Preliminary Test Rights.

According to the Michigan State Police Preliminary Breath Test Manual, the following rights should be read to a person before asking them to submit to a roadside breath test:

Michigan law requires you to submit to a preliminary breath test upon request of a peace officer. Your refusal to submit as requested shall result in your being charged with a civil infraction with a penalty of up to a $100.00 fine.

How Will Police Know I’m too Stoned to Drive?

Published on: November 23, 2018 | by Patrick Barone

It is an undeniable truth that police officers have a much more difficult time detecting stoned drivers when compared with the relatively easy task of detecting drunk drivers. There are many reasons for this and first among them is that marijuana does not impact driving anywhere near the way alcohol does. It is also debatable whether marijuana impairs a driver’s ability to safely operate a motor vehicle at all. Debate aside, with the legalization of recreational marijuana in Michigan there is little doubt that police will begin arresting more stoned drivers. Which begs the question; how will the police know you’re too stoned to drive?

At the beginning, the stoned-driving investigation will closely mimic a drunk driving investigation. A driver will be stopped for some identifiable violation of the traffic code, such as driving too slowly, disobeying traffic signals and so on. When the police first approach the driver, they will be looking for any signs or symptoms of marijuana use. Like alcohol, the most tell-tale sign will be the odor of marijuana, which is obviously much more difficult to detect in the case of consumables. The police will be looking for pupil dilation and eyes that otherwise appear stoned. Additionally, the police will be looking for packaging or paraphernalia commonly associated with marijuana use. If marijuana use is suspected, the police will seek an admission to the prior use of marijuana. The next step may be either to request a preliminary breath test and/or to request the driver’s participation in the administration of field sobriety tests. The purpose of all this is to determine if in fact the person is impaired and to rule out the possibility that alcohol is causing the impairment.

After a driver blows all zeros (or very low) on the alcohol preliminary breath test, the police officer will need to decide whether to call in a DRE (Drug Recognition Expert). The police officer will also need to decide if they have enough evidence to arrest the driver at this point, or if the DRE needs to continue the investigation at the roadside. In preparation for all of this, in 2016 Michigan expanded its definition of the Drug Recognition Expert.

What is Legal Limit for Marijuana in Michigan?

Published on: November 22, 2018 | by Patrick Barone

Recreational marijuana will soon be legal in Michigan. Known as proposal one, which passed by a large margin, marijuana won’t officially become “legal” until 10 days after the election is certified by the state board of Canvassers. This is expected to happen sometime in early December.

However, the enabling legislation has not yet been enacted, and because of this, the legalization of marijuana in Michigan raises a whole host of legal and criminal law issues. For example, once the election result for proposal one is certified, will it then be legal to operate a motor vehicle with marijuana in your system? What is the legal limit for marijuana? If you operate below this legal limit, are you immune from prosecution for operating under the influence of marijuana? Each of these questions is addressed below.

Is it now legal in Michigan to operate a motor vehicle with marijuana in your system?

Michigan Criminal Defense Law Blog

Reinstate License Online Michigan | Lawyers to Help Get License Back

Preliminary Test Rights.