Articles Posted in OWI

There are three categories of consequences that can arise out of a drunk driving conviction. The punitive sanctions are those that the judge imposes after you are convicted, and include things like jail time, fines and costs, community service, etc. The driver license sanctions are those imposed by the Secretary of State.

For example, once you’ve been convicted of a high BAC/Super-Drunk case, your license will be suspended for 45 days followed by 320 of restricted privileges with an ignition interlock device.

But, the most significant consequences of a drunk driving conviction are often the collateral consequences.

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:

Former Local News Channel Four Reporter Kevin Dietz recently interviewed Barone Defense Firm attorney Keith Corbett regarding the Medicare Fraud case of Dr. Rodney Moret.  The allegations in this salacious case included that Dr. Moret was trading prescription drugs for sex.  However, the allegations claim that the total amount of Dr. Moret’s fraud amounted to far more than a few sexual favors. Instead, in round figures, the Doctor is alleged to have been fraudulently enriched himself in the amount of 21 Million Dollars.  The video of Mr. Corbett’s interview can be viewed on the ClickOnDetroit website.

Dr. Moret’s behavior in this case, and the way he abused and took advantage of his victims, many of them women, was so egregious that he received a prison sentence of 75 years. He also lost his license to practice medicine.  According to his interview, when asked about why the sentence was so high, Mr. Corbett indicated:

When they misuse that license, when they misuse that position of trust, that’s a factor,” Corbett said. That’s going to be considered by a judge. You don’t want doctors, lawyers abusing their position and taking advantage of people when they are most vulnerable.

Keith Corbett of the Barone Defense Firm was recently interviewed by Channel Four reporter Kevin Dietz about the Federal Gun case involving Juan Eagle.  The video of the interview includes comments made by Mr. Corbett and can be viewed at the ClickonDetroit website.

According to the news report, Juan Eagle was purchasing guns “wherever he could find them” and then reselling them in locations including Metro Detroit.  Allegedly Mr. Eagle was on parole at the time, and was blatantly violating the law, even when traveling to Michigan to see his parole officer.  Mr. Corbett was asked for his comments on this case because of his expertise in the prosecution of Federal Crimes, including gun crimes, RICO, medical and billing fraud, and other white-collar criminal activity.

Having spent 30 plus years as a federal prosecutor but now in private practice, Mr. Corbett is a popular guest on various news programs due to his ability to see both sides of a case, from the perspective of a seasoned prosecutor but also the perspective of a successful defense lawyer.  Mr. Corbett also has a wry sense of humor but at the same time, he can look at the human side of things and offer a compassionate take on what may otherwise seem like a heinous crime.

Yes, an unpublished Michigan Court of Appeals case suggests that you can.  The name of the case is People v. Ra[i]. In this case, the defendant, Ms. Ra, was visiting the home of her mother. Ms. Ra’s teenage niece was also at the home.  Ms. Ra and her mother were both sitting on the porch watching Ms. Ra’s two-year old daughter play in her car which was parked in front of the house. The niece’s teenage friend showed up and since it was believed that this young woman had beaten up the niece at school earlier, Ms. Ra told her to call her mother to pick her up.  The mother showed up in response to the call and proceed to create a big scene.  Ms. Ra then asked her to leave as well, and this request apparently infuriated the teenager’s mother.  At trial different versions of what happened next were presented by the two parties, but it appears that after the teenager got into her mother’s car, the mother rammed the car into the car in which Ms. Ra’s child was playing.  Ms. Ra then went to her car and retrieved a handgun from the consol.  She then pointed the gun at the other car, demanding that they leave.  The teenager’s mother got out, apparently unafraid, and took pictures of Ms. Ra holding the gun.  She then left, went to the police department, and filed a complaint.  The defendant ended up charged with two felonies; assault with a dangerous weapon (felonious assault), pursuant to MCL § 750.82, and possessing a firearm while committing a felony (felony-firearm), pursuant to MCL § 750.227b.

Ms. Ra’s was convicted of both felonies counts at trial, and on appeal her attorney that the trial court erred by refusing to instruct the jury on the use of nondeadly force in self-defense.  Her attorney argued that she used only nondeadly force by pointing her gun at the car, and that the trial court thereby unfairly restricted the circumstances justifying self-defense to whether defendant reasonably feared death or serious bodily harm.  The Court of Appeals agreed and reversed and remanded the case for a new trial.

Self-defense is an affirmative defense that justifies otherwise punishable criminal conduct, and applies when the defendant acted intentionally, but under circumstances that justified her actions. The  use  of  deadly  force  in  self-defense  requires  that  the  defendant  honestly  and reasonably believe that she or another is in danger of being killed or seriously injured, M Crim JI 7.15(3), while the use of nondeadly force in self-defense requires that the defendant honestly and reasonably  believe that  the use of force is  necessary to  protect  herself  or  others  from the imminent unlawful use of force by another.  M Crim JI 7.22(4).  Thus, the use of deadly force in self-defense requires a reasonable belief that the circumstances were more dire than the circumstances necessary to support a use of nondeadly force in self-defense.  The Michigan Self Defense Act does not define “force” or “deadly force.”  The Michigan Supreme Court, however, has applied the term “deadly force” as defined as force used in a circumstance in which the natural, probable, and foreseeable consequence of the act is death. People v Couch, 436 Mich. 414, 428 n 3; 461 NW2d 683 (1990).  In this case the Michigan Court of Appeals held that brandishing a gun, which is essentially the threat of deadly force, is itself non deadly force.  Because Ms. Ra may have honestly and reasonably believed that non-deadly force was necessary to protect her daughter from the imminent use of force by the teenager’s mother, Ms. Ra was entitled to brandish the gun in self-defense.