Criminal Evidence

How Long Should a Marijuana User Wait Before Safely Operating a Car?

Published on: May 7, 2021 | by Patrick Barone

It can be difficult for a marijuana user to subjectively assess their level of impairment. Even worse, there is no way for a marijuana user to objectively evaluate their level impairment. So, after consuming marijuana medically or recreationally, how can a marijuana user make a safe decision about driving?

Before we get to that question, let’s do a quick review of Michigan’s OWI laws as it relates to drugs. In Michigan, you can be charged (and potentially convicted) if you are either impaired or intoxicated by alcohol, drugs, or any combination thereof. Specifically, Michigan’s OWI law references impairment or intoxication caused by alcohol, controlled substance or “other intoxicating substance.” See Michigan Compiled Laws Sec. 257.625.

Notably, the statute does not define either the word intoxicated or impaired, leaving that factual determination to the fact finder, which is usually a jury of 6 or 12 individuals, depending on if the case is a misdemeanor or a felony. To assist the jury in reaching this determination they will be given several standard jury instructions.

Consecutive Sentences Greater than 25 Year Minimum Mandatory Lawful on Michigan CSC First

Published on: April 30, 2021 | by Patrick Barone

The Michigan Court of Appeals has indicated that two sentences of 30 to 50 years in prison for two CSC-I convictions may run consecutive to one another. This effectively means that this defendant received a minimum sentence of 60 years. The name of the case is People v. Randolf.

The Michigan sexual assault crime called criminal sexual conduct first degree, is set forth in Michigan Compiled Laws Sec. 750.520b. As therein provided, criminal sexual conduct in the first degree involves a victim aged 13 years or younger, or between 13 and 16 when certain exacerbating circumstances exist, such as a perpetrator in a position of authority.

The punishment for a Michigan criminal sexual conduct first degree conviction ranges depending again on the circumstances and facts of the involved crime. For example, in the case where the perpetrator is 17 years old or older, and the victim is less than 13 years old, there is a minimum mandatory sentence of 25 years. Furthermore, the law provides that the sentencing judge may order consecutive sentences for two criminal offenses “arising from the same transaction.”

Court Ruling Could Lead to Dismissal of Drunk Driving Causing Serious Injury Charge

Published on: April 26, 2021 | by Patrick Barone

The Michigan Court of Appeals has indicated, in the unpublished opinion of People v. Adam Robe, (COA# 355005); that a failure to wait 15 minutes before administering a roadside preliminary breath test (PBT) meant that the trial court could not consider the PBT in determining if the arrest is valid. This ruling may lead to the dismissal of the intoxicated driving causing serious injury charges pending against Mr. Robe.

The Robe case involved a two-vehicle accident. When the police arrived to assist, they immediately went to the vehicle where the driver had sustained serious injuries. Later then went to talk with Mr. Robe, and after about 3 minutes asked him to take a PBT. He consented, and thereafter was arrested and charged with drunk driving causing serious injury. Before trial, the defendant’s attorney filed a motion to dismiss, arguing that the PBT was not administered according to the administrative rules which require a 15-minute determination. No field tasks were administered, and the arrest was based almost solely on the failed PBT.

The trial court denied the motion, and rather than stand trial at that moment, the defense attorney asked for a “stay of proceedings” to pursue an “interlocutory appeal.” In other words, the defense attorney wanted an answer to this legal question about the PBT before putting Mr. Robe’s fate before a jury because if the attorney was right, and the arrest was unlawful, then there would be no trial. The drunk driving causing serious injury charge would have to be dismissed.

Michigan DUI Case Based on Anonymous 911 Call Dismissed

Published on: April 25, 2021 | by Patrick Barone

In the case of People v. Pagano, the Michigan Supreme Court has indicated that a traffic stop based only on an anonymous 911 call is invalid. This ruling affirmed the District Court’s dismissal of both the child endangerment drunk driving and open intoxicants in a motor vehicle charges.

As the Pagano opinion indicates, the police received information from central dispatch that a woman was obnoxious and yelling at her children and appeared to be intoxicated. The 911 caller also provided identifying information about the vehicle driven by the ostensibly intoxicated woman, including the license plate number and make and model of the car.

The Michigan Supreme Court, in the unanimous Pagano opinion, held that information provided to and by the officer failed to establish a “reasonable and articulable suspicion” either that a traffic violation had occurred or that criminal activity was afoot. While the Court acknowledged that the 911 caller was able to appropriately identify the individual involved and the car being driven by her, the tip still did not give rise to anything more than, at best, an “inchoate or unparticularized suspicion” of criminal activity. Otherwise, there was nothing in the record to suggest that the police officer making the traffic stop corroborated the 911 caller’s mere assertion that the driver was drunk. There was no bad driving observed by the police officer, and the stop was based only on the information provided to the 911 caller. After all, said the Court, parents can obnoxiously yell at their children without being drunk, and the 911 called also did not indicate that any bad driving was observed.

Marijuana Use Not Relevant to Sentencing in Michigan Intoxicated Driving Causing Death Case

Published on: April 21, 2021 | by Patrick Barone

In this Michigan Intoxicated driving causing death, the defendant Willett entered a no contest plea thereby admitting that he was operating a motor vehicle with the presence of any amount of marijuana in his body, and that the operation of his vehicle caused the death of another, under Michigan Compiled Laws § 257.625(4)(a)and (8).

Mr. Willett was sentenced to 4 to 15 years of imprisonment. Prior to sentencing the defendant, the court questioned him about his marijuana use, and the defendant, then 21 years of age, admitted he used marijuana daily and had started using marijuana at age 14 or 15. The court concluded the pre-sentencing colloquy by admonishing the defendant and stating to him that it was his use of the drug that lead to the horror of the accident and death. On appeal the defendant argued that the court’s sentence was based on inaccurate information, and the Michigan Court of Appeals agreed. The case was reversed and remanded.

The facts of this case include an admission from the defendant, at the roadside, that while he was driving, he was getting sleepy and closed his eyes. He crashed into the car in front of him immediately after opening his eyes, creating a multi-vehicle accident leading to the death of one of the vehicle’s occupants.

Michigan Rape Conviction Reversed due to Improper Vouching by Prosecution Experts

Published on: April 20, 2021 | by Patrick Barone

A recent Michigan Court of Appeals panel reversed a conviction for Criminal Sexual Conduct First Degree, commonly called rape, due to improper witness vouching. The case involved three expert witnesses, all of whom testified for the government. In different and sometimes subtle ways, each expert made improper statements about the complaining witnesses (CW) credibility that amounted to their “vouching” for the CW’s credibility.

According to the standard jury instructions utilized in Michigan sex crimes cases it is up to the jury to judge and weigh a witness’s credibility. In reaching this determination, the jury will be instructed to consider a variety of factors including how well the witness was able to see and hear things and was there anything that might have distracted them; how good is their memory; how do they look and act while testifying and do they seem to be telling the truth or are they trying to evade answering and arguing with the lawyers, do they have any personal interest in how the case is decided, and how reasonable is their testimony when compared with all of the other evidence in the case. See M Crim JI 2.6.

Notice that “what do other people think about the witness’s credibility” is not among the factors for the jury to consider. Vouching is improper therefore because it “invades the province” of the jury by substituting someone else’s opinion for the jury’s collective determination.

Federal Prescription Drug Fraud Lawyer Discusses Prescription Fraud

Published on: April 5, 2021 | by Ryan Ballard

Patrick Barone and Keith Corbett Federal Criminal Defense Lawyers The best way to understand federal prescription fraud is to look at a case where this has happened. For example, the United States Department of Justice and the State of New York recently announced an indictment on federal health care fraud charges on a licensed pharmacist and business owner in New York.

The basic allegations are that the pharmacy owner paid off customers (in other words, provided kickbacks) to fill fake prescriptions at his pharmacy. The pharmacy would then bill the prescriptions to Medicaid and Medicare.

However, the government alleges that the prescriptions drugs were never actually given to the customers. Alternatively, that drugs of lesser value were given, and that it was a scheme to fraudulently get reimbursed by Medicaid and Medicare.

How Long Can I Be Held on a Federal Complaint and Warrant?

Published on: March 23, 2021 | by Patrick Barone

Once you have been arrested on a Federal Complaint and Warrant, the government must hold a preliminary exam with 14-21 days unless you consent, and good cause is shown. Otherwise, the rules require that you be released. However, you can only be held on a complaint. You cannot be prosecuted further on a complaint and warrant. To prosecute you further, the government must either file an information or obtain an indictment.

To better understand this, it is helpful to consider that when the government believes that you have committed a felony over which the federal courts have jurisdiction, the prosecution for this crime may be initiated by the government in one of three ways. The most common of the three is the criminal indictment. However, in certain circumstances, the government may determine that there is a need to forgo the grand jury and instead will prepare and file a complaint. This procedure is governed by Rules 3-5.1 of the Federal Rules of Criminal Procedure.

A complaint, and the necessary probable cause to support it, may be based in whole or in part on hearsay. According to Rule 3 of the Federal Rules of Criminal Procedure, a complaint must contain the essential facts of the crime alleged, and must be presented to a magistrate judge, under oath. Rule 4 of the Federal Rules of Criminal Procedure provides that, in reviewing the warrant and deciding whether to issue an arrest warrant, the magistrate judge must determine whether the complaint establishes probable cause to believe 2 things; first that the crime alleged has been committed and that second that the defendant committed it.

Executive Order May Limit Due Process in Student Sexual Misconduct Cases

Published on: March 12, 2021 | by Patrick Barone

President Biden recently signed an executive order seeking to have the rules applicable to sexual misconduct cases reviewed. Previously, President Trump had increased the due process of rights of the accused, bringing them more in line with the constitutional rights afforded those accused of sexual assault crimes in state and federal courts.

What Happens if a Student is a Victim of Sexual Assault?

If a college student believes that they have been sexually assaulted and want to bring the perpetrator to justice, they have many choices. They can go to the police just as with any other crime. Alternatively, they can report it their school. Or they can do both. Or they can have both done for them. Much of this will depend on the particular school involved.

When Yes Doesn’t Mean Yes – Understanding Statutory Rape in Michigan

Published on: March 4, 2021 | by Ryan Ballard

In the most basic terms, statutory rape means consensual sex with a minor child. Michigan does not actually call this “statutory rape” to describe this crime. Instead, Michigan’s rape laws use the phrase criminal sexual conduct as the term for statutory rape.

Michigan’s rape laws, which are sex crimes, are divided into four degrees of criminal sexual conduct. All four degrees can be triggered by the age of at least one of the actors, fitting the generic definition of statutory rape. Regardless of the degree of criminal sexual conduct, the basic idea of statutory rape is preserved under these laws, which is that an individual under the age of consent does not have the capacity to consent and, therefore, cannot give consent.

Thus, even if a person under Michigan’s age of consent is 100% willing and voluntarily agrees to engage in the sex act, they still cannot legally consent. In this instance, yes does not mean yes.