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Last year Michigan passed sweeping legislation ushering in the age of commercial medical marijuana.  There are five different kinds of commercial licenses available, including those needed to commercially grow, transport and sell marijuana.  The administrative rules have yet to be written, so it’s not clear exactly how many licenses will be available.  However, entrepreneurs hoping to cash on the “gold rush” are already starting to lay the groundwork for their future business enterprises.

Once such entrepreneur was a restaurant owner who allegedly attempted to bribe Garden City workers into guaranteeing him a commercial marijuana license. Apparently, he gave an envelope filled with $15,000.00 in cash to a Garden City official.  He didn’t know at the time that he was actually handing the money over to an FBI agent.

In addition to whatever federal crimes this person may have broken, he also violated state law.  According to Michigan’s Penal Code, section 750.117, it is unlawful to give things of value to public officials, the intent or purpose of which is to influence the act, vote, opinion, decision or judgment of such public officer.  This would include a medical marijuana permit.  A violation of this law is a felony.

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Many judges, prosecutors, and defense attorneys have mistaken beliefs about alcohol tolerance.  In a drunk driving trial, these mistaken beliefs can lead to misleading arguments which might further lead to wrongful convictions.  A recent article from the peer-reviewed science journal article Psychopharmacology[i] helps support a defense lawyer’s attempt to preclude a wrongful conviction based on these misleading arguments.

Generally speaking, most drunk driving trials include observations of the police leading up to the arrest and a subsequent breath or blood test, generically called a “chemical test.”  Therefore, winning a drunk driving trial requires reasonable doubt as to both.

Issue With Alcohol Tolerance

There are many ways to approach the defense of a drunk driving crime, and a defense should always be matched to the facts and science of a particular case.  However, one way to explain to jurors that there is a reason to doubt the chemical test is to show that there is a disparity between the breath or blood test result and the physical and mental condition of the driver.  This might occur in cases where the driver performs well on the field tasks, such as the one-leg stand or walk and turn.  This evidence, usually collected at the roadside, is often referred to as the “observational evidence.”

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If you have never been arrested for drunk driving before in Michigan, or anywhere else in the country, then there are three possible drunk driving charges in Michigan.  The driver’s license sanction for each offense is described below.

High BAC/Super Drunk OWI

According to Michigan’s Criminal Code, section 257.625(c) a driver is considered “super drunk,” meaning they have a high BAC (bodily alcohol content) if that person has an alcohol content of 0.17 grams or more in their blood, breath, or urine.

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Barone Defense Firm founding partner Patrick T. Barone has been asked to present at the upcoming Solo and Small Firm Drunk Driving Update.  This seminar, presented by the Michigan State Bar, will take place Thursday, May 22, 2017 from 6:00 – 8:00.  The location is at the Western Michigan University Cooley Law School’s Auburn Hills campus.  Food and light refreshments will be served, including appetizers, beer, wine and soft drinks.  The cost is a very modest $20.00 for State Bar Solo and Small Firm section members, $25.00 for all others.  Law Students are free.

This seminar will cover the basic nuts and bolts involved in the representation of those alleged to have driven under the influence of alcohol or drugs.  Topics to be covered include pretrial proceedings, driver Assessment and Appeals matters, including driver license restorations and implied consent matters and trial practice.  Patrick Barone will be presenting on the topic of trial skills.  Mr. Barone has tried 100’s of drunk driving cases and frequently lectures locally and nationally on advanced trial skills, including most recently this past March at the Advanced OWI Seminar in Columbus Ohio.

Hearing Officer Brian Longman with the Michigan Secretary of State is also among the panelists. Mr. Longman will be speaking about implied consent matters, including available defenses, and more generally, how to conduct such a hearing on behalf of a client who is alleged to have unreasonably refused a breath or blood test.

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Imagine you have done nothing wrong but for a minor moving violation. You have not been drinking.  You have not consumed any prescription or illegal drugs.  You tell the officer the truth.  But then you are arrested for suspicion of driving under the influence.  This was the very unfortunate circumstance for not one, not two, but three Georgia women, all arrested by the same highly credentialed, drug specific trained, experienced police officer.[1]

This was the story that Michael J. Boyle shared with a conference room full of defense attorneys and prosecutors of WHY they were all there today.  Those three women are not the only ones that end up wrongly arrested, and it is not only happening in Georgia, but in Michigan and in every other state.  The only way to protect those from wrongly arrested, and potentially wrong convicted, is to have an attorney with the experience and knowledge to know how to handle the case.

On May 12th and 13th Attorneys from across Michigan gathered in Lansing for the first ever Seminar put on in concert by the Michigan Association of OWI Attorneys (MIAOWIA) and the Marijuana Law Section (MLS) of the State Bar of Michigan.  The two-day Marijuana Criminal Law Seminar titled “Everything About Medical Marijuana in Michigan” covered a variety of current marijuana issues including Hot Topics, Search and Seizure, License Restoration, Section 4 and Section 8 Hearings, Marijuana Drug Recognition Evaluations (DRE), Chemical Testing for Marijuana, the most recent Michigan Case Law and Legislative Updates, and Marijuana and Driving in Michigan.

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If you have a concealed pistol license in Michigan, then you are free to carry your concealed weapon throughout the state.  This means you can carry a gun with you while driving on streets or freeways, including rest areas, while shopping, eating at certain restaurants while walking in fairs and fairgrounds, neighborhood BBQs, many small (non-sports) entertainment facilities and many other places.

However, there are certain areas that are strictly excluded from your right to carry.  These CPL exclusions are set forth in MCL sec. 28.425o.

CPL Exclusions:

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On July 1, 2001, Michigan’s new concealed carry law went into effect.  With this new law, Michigan effectively became a “shall issue” state, meaning everyone not otherwise excluded by law is entitled to obtain a license allowing them to carry a concealed weapon.

To obtain a concealed pistol license or CPL, you must file an application with the county clerk where you reside. The Concealed pistol license application can be download here or on the state police website, but should not be signed until you file it.  You will then be placed under oath by the clerk, after which you will sign your application in their presence.  A $100.00 filing fee is due at this time.  Additionally, you must have your fingerprints taken, and there is an additional $15.00 fee for this service.  Your application is not complete until your fingerprints are taken.  In most instances, the county clerk will direct you the nearby county sheriff location where your fingerprints will be taken.  Other possible locations for fingerprints include county the state police, local police agency, or other entity that provides fingerprinting services.

In addition to the application and fingerprints, you must also present a certificate indicating that you’ve attended an approved appropriate pistol safety training course or class.  These classes include information about gun safety, use of force law, and range training where you will shoot a pistol under the supervision of an instructor.

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An Oakland County Circuit Court Judge recently suppressed a DataMaster .20 evidentiary breath test result on a felony drunk driving case.  The judge suppressed the breath test because the police officer who administered the test failed to follow the laws and rules intended to assure that breath tests are reliable.  Because of the judge’s ruling, the prosecutor can no longer argue to the jury that the driver had an unlawful bodily alcohol level (UBAL).

The facts, in this case, are as follows: the driver was stopped for making an unlawful turn.  The driver had no valid driver license, smelled of alcohol and admitted drinking.  Subsequently, the driver was unable to perform to the police officer’s satisfaction on the field sobriety tasks, including the alphabet, backward count, heel to toe and horizontal gaze nystagmus.  This driver had two or more prior DUIs in his lifetime.  Based on Heidi’s law, with at least two lifetime prior DUIs, this arrest would make it a felony.  A roadside preliminary breath test indicated .123 on a “weak” sample.  Thereafter the driver was arrested for felony drunk driving.

Because this was a felony case, the driver was entitled to a probable cause hearing.  In Michigan, this is called an evidentiary hearing.  At an evidentiary hearing, the prosecutor bears the burden of proof, but only by the standard of probable cause.  This means prosecutor need only show, through witnesses and evidence, that the crime charged was probably committed.  Because of this, an evidentiary hearing is a much-abbreviated version of trial.  Nevertheless, at the evidentiary hearing, we did ask the police officer some general questions about his observation of the driver prior to the breath test. This was to set up a motion to suppress at the circuit court.

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If you are stopped and the police smell alcohol or marijuana, then there’s a good chance you will be asked to step out of the car to perform field sobriety tests. If you fail one or more of these tests, then you will probably be arrested for OWI, or Operating While Intoxicated.

Michigan has not made it unlawful to refuse field sobriety tests, and if you refuse them, then the police will not be able to use any poor performance against you at trial.  Your attorney might also argue that without field sobriety tests the police lacked probable cause to make a lawful arrest. If successful, your case could actually be dismissed.  So there is a real benefit to refusing the field sobriety tests.

On the other hand, the prosecutor might argue that you refused the tests because you knew you’d fail them.  This is sometimes called a “consciousness of guilt.” Much has been written about consciousness of guilt arguments, and some courts believe that these arguments violate due process.  For example, if you exercise your constitutional right to remain silent, this should not later be used against you.  However, other courts have held that so long as you are advised ahead of time that your refusal will be used against you, then there is no due process violation.

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A Barry County Judge has indicated that he’s going to start cracking down on repeat drunk drivers by giving them a minimum of 30 days in jail.

Judge Michael Shipper was appointed by Governor Snyder in 2011 and is already tough on first-time offenders.  Now he says he’s ready to be even tougher on repeat drunk drivers.  He’s indicated that the 30-day sentences could be spread out over 15 weekends.

In Michigan, a second offense drunk driving charge is appropriate only where the offender has a prior offense within the prior 7 years.  If the prior offense is more than seven years old the new offense will be considered a first offense.  However, the same is not true for those drivers with two prior drunk driving offenses on their record.  Michigan has a lifetime look back for drivers with three or more total drunk driving convictions.  These drivers are considered felons and may face up to five years in prison.

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