Michigan Criminal Defense Lawyer Blog

The Rights of Protesters in Michigan

Published on: December 19, 2017 | by Patrick Barone

Under the First Amendment in the Constitution of the United States, people have a legal right to protest through a demonstration, a march, or a similar public gathering or event. In part, this is because the First Amendment also protects the right of the people peaceably to assemble. While there are some legal restrictions on these types of assemblies or protests, Michigan is currently trying to infringe on the rights of protestors.

Any type of peaceful protest is lawful under the First Amendment, but it is illegal for any protestor to break the law while they are demonstrating. This means that violence will not be tolerated as part of a protest, and protestors cannot sit in the streets to block traffic because this is unlawful. The right to protest is most protected in public places such as parks and sidewalks.

Protesting on private property is another matter altogether. In order to protest on private property, the owner of that property needs to give their permission for the protest to take place. This includes properties such as shopping malls and airports.

How to Win a Drunk Driving Case Without Trying

Published on: December 12, 2017 | by Patrick Barone

Can You Really Win a Drunk Driving Trial Without Even Trying?

Sometimes, winning a trial or a contested hearing comes down to knowing what not to do! In drunk driving cases, nowhere is this truer than with administrative hearings held on appeal from an alleged implied consent violation. To understand why this is true, it’s helpful to know a little bit about the Michigan Implied Consent Law and about administrative hearings.

If you have been charged with drunk driving in Michigan and refused to take a breath or blood test at the request of the police officer, then you will be charged with a violation of Michigan’s Implied Consent Law, pursuant to MCL § 257.625f. A violation of the implied consent law will result in the suspension of your driver’s license for up to 2 years.

Are Science Guides for Judges a Good Idea?

Published on: November 28, 2017 | by Patrick Barone

The BBC recently reported that judges in the United Kingdom will be receiving guides to help them deal with scientific evidence in the courtroom. Feedback from the judges has been positive, and the first science primers will address things like DNA and fingerprint evidence, as well as computer programs that (claim to) allow the identification of suspects from the manner of their walk. While there is no question that judges could benefit from an education in science, are these primers a good idea?

On first blush, the answer seems to be yes. The primers are said to explain complex scientific concepts simply and without jargon so that judges can understand the legal significance of the science and apply it to the case before them. They are written by the “foremost experts” in the topics covered, including Nobel Prize-winning scientists. According to the BBC:

The emphasis nowadays is for courts to be more proactive to actually challenge the prosecution for example and say ‘why is this report admissible? How is it going to help you? Is it really the right report for the issues in this case?

How Much Money Will I Need to Obtain a Commercial Michigan Medical Marijuana License?

Published on: November 9, 2017 | by Patrick Barone

You will need a minimum of $150,000.00 and as much as $500,000.00 of both liquid and non-liquid assets combined. Many observers believe that these numbers are way too low, and this is because after obtaining a license, the licensee must then run a successful business. As a licensee, this means that in addition to obtaining a license, you subsequently will have all the associated business costs, such as rent, insurance and labor, not to mention security, legal and accounting costs, just to name a few.

Also, if you are hiring one or more professionals to assist you preparing for and/or applying for your commercial medical marijuana license, these fees would also need to be added to LARA’s projected capital requirements.

The $150,000 – $500,000 number is based on a recent LARA advisory bulletin. When the bulletin was first released there was an open question as to whether these assets had to be liquid, or if investments, including retirement accounts, would count toward this assessment? A subsequent clarification from LARA indicated that:

Using Medical Marijuana While on Bond for Drunk Driving

Published on: November 7, 2017 | by Patrick Barone

If you are charged with drunk driving in Michigan, then the clear majority of judges will require that you abstain from all alcohol and all illegal drugs. This will be a condition of your bond, and to be sure that you are compliant with your bond, you will be tested, usually randomly, for both alcohol and drugs.

If you are a medical marijuana user, then these bond conditions present a special problem for the courts because you have the lawful right to use marijuana. However, marijuana remains a schedule I drug at both the state and federal levels. This means it is an illegal drug that you can use legally.

Because this is a legal gray area, courts differ relative to their willingness to allow a person who is on bond to continue using medical marijuana. Some courts allow this while others do not. Your attorney can help you determine what is likely in your case.

Michigan to Begin Roadside Saliva Testing for Drugs

Published on: November 6, 2017 | by Patrick Barone

In 2016 new laws were passed to allow and encourage roadside salvia drug testing. The laws are set forth in MCL 257.62a, 257.625r, 257.625s, and 257.625t. Michigan’s legislators passed these new laws because there is a belief that more drivers are under the influence of illegal and prescription drugs. In fact, according to NHTSA, there has been a 32% increase in fatal accidents involving drug use.

As has been previously reported, the testing under these laws was delayed, and apparently, the Michigan State Police are ready to roll out the new program in five counties. These five include Berrien, Delta, Kent, St. Clair and Washtenaw.

The saliva tests will be given when a motorist is suspected of being under the influence of drugs. This might happen when the driver exhibits signs of intoxication, but a roadside breath test shows zero or very low for alcohol, or when the belief is that drugs may be on board in addition to any alcohol.

New Jersey Court Clears Way for Marijuana to be Removed from State’s Schedule One

Published on: November 3, 2017 | by Patrick Barone

A New Jersey Appeals Court has issued an opinion wherein they indicate that the New Jersey Division of Consumer Affairs (Division) has the authority to reclassify marijuana, and thereby remove it from Schedule I. According to the Drug Enforcement Agency’s website, “drugs, substances, and certain chemicals used to make drugs are classified into five (5) distinct categories or schedules depending upon the drug’s acceptable medical use and the drug’s abuse or dependency potential.” The rate of abuse of a drug is one of the most important factors. Those drugs having a high potential for abuse combined with a significant potential to create psychological and/or physical dependence, are classified as “schedule I” drugs. Another important determinative factor is that such drugs have no “no currently accepted medical use.”

In New Jersey, a prisoner convicted of a drug crime involving marijuana filed a petition asking the Division to change the categorization of marijuana from schedule I to schedule IV. These drugs have a low potential for abuse and low risk of dependence. Commonly known schedule IV drugs include Xanax, Valium, and Ambien. In his brief, the prisoner argued that because the Legislature determined that marijuana had “a beneficial use . . . in treating or alleviating the pain or other symptoms associated with certain debilitating medical conditions” when it passed the New Jersey Compassionate Use Medical Marijuana Act (CUMMA), N.J.S.A. 24:6I-1 to -16, in 2010, marijuana no longer satisfied one of the requirements for inclusion in Schedule I, that the substance “has no accepted medical use in treatment,” N.J.S.A. 24:21-5(a).

The Director denied the petition indicating that marijuana has been listed as a Schedule I substance since the passing of the federal Controlled Substances Act (CSA) in 1970[i]. He also indicated that he disagreed with the prisoner’s position that the CUMMA demonstrated a legislative intention “to treat marijuana similar to or consistent with substances listed in Schedules II-V.”

Medical Marijuana Dispensaries to Stay Open Pending Licensing

Published on: November 2, 2017 | by Patrick Barone

In a surprise move, Michigan’s Bureau of Medical Marihuana Regulation (BMMR) reversed its prior decision and had now declared in a press release that they will allow currently existing marijuana dispensaries to continue operating provided they have local approval. Furthermore, that such operations will not impact the applicant’s eligibility for licensure.

Prior to the 2016 amendments to Michigan’s Medical Marijuana Act, the only way for a card holding medical marijuana patient to obtain marijuana was to either grow it him or herself or to purchase it from a “caregiver.” The trouble was, there were no rules surrounding the lawful sale and purchase of medical marijuana, and therefore, it was not, strictly speaking, against the law to open a dispensary. This legal gray area caused many problems; problems that the 2016 amendments sought to correct and clarify.

Previously, the BMMR had indicated that currently, existing dispensaries should shut down by not later than September 15, 2017, and that such dispensaries may have trouble getting licenses. This has now changed according to the press release.

Should I Take My Drunk Driving Case to Trial or Just Plead Guilty?

Published on: November 1, 2017 | by Patrick Barone

If you are charged with drunk driving in Michigan, then at some point after your arraignment you will need to decide if you wish to plead guilty or stand trial. This is because all Michigan drunk driving crimes are classified as either misdemeanors or felonies. This means that all people accused of drunk driving in Michigan have an absolute right to trial. The trial can be either by a jury or by a judge. Misdemeanor cases in Michigan are tried before juries of 6 people whereas felony cases are tried by juries of 12. Verdicts in all criminal cases require that juries be unanimous, either in favor of conviction or in favor of acquittal.

The trial/no trial decision is a complex one and requires the assistance of an attorney familiar with the trial process, particularly, one familiar with drunk driving trials. However, relative to the trial option there are many things to consider in making this decision. The first is the likelihood of conviction but this likelihood is best viewed within the context of the plea offer being made on the part of the prosecutor. Has the prosecutor offered to reduce the charge in exchange for your plea of guilty? If so, then how “valuable” is that plea offer? You are the only person who can assess this value.

When there is a plea offer, or in those cases where no plea offer is made at all, and your only choice is to plead guilty as charged, it may be useful to weigh this fact against the right(s) you are giving up by foregoing trial and pleading guilty. Everyone accused of a crime has many trial rights, including the presumption of innocence, the right to call witnesses and the right to remain silent. These are valuable rights and ones that should not be lightly waived or given up.

Proposed Amendments to Michigan’s Medical Marijuana Act Add New Definitions

Published on: October 30, 2017 | by Patrick Barone

Recently, several House Bills have been passed in order to regulate medical marijuana in the state of Michigan. However, these bills are not absolute. Instead, they are subject to change as the state determines more effective ways to govern medical marijuana businesses and seeks to fill gaps that the original bills left out.

On October 19th, 2017, a bill (House Bill Number 5144) was proposed to provide such amendments. The new bill amends 2016 PA 281, also known as the Medical Marihuana Facilities Licensing Act. What follows is a review of the major changes implemented along with House Bill No. 5144.

The Medical Marihuana Facilities Licensing Act licenses and regulates those involved in the commercial aspects of a medical marijuana business in Michigan. It also outlines the duties of local and state government officials when regulating such marijuana-related businesses. In addition, the act establishes the medical marijuana licensing board and the advisory panel. It provides guidelines for interacting with the statewide monitoring system when it comes to marijuana transactions, outlines penalties, taxes, and other fees related to having a medical marijuana business, and establishes that those with such a business are protected from prosecution.

Michigan Criminal Defense Law Blog

Can You Really Win a Drunk Driving Trial Without Even Trying?