Michigan Criminal Defense Lawyer Blog

Commission Recommends No Legal Limit for Marijuana in Michigan

Published on: April 3, 2019 | by Patrick Barone

The Impaired Driving Safety Commission (IDSC) has recently recommended that Michigan lawmakers take no action toward the creation of a legal limit for marijuana. In summary, the Commission believes that the science does not support a one size fits all legal limit threshold for drivers who have used marijuana.

The IDSC was established in 2017 by Michigan Compiled Laws sec. 28.793. According to subsection 2 of this law:

(2) The commission shall research and recommend a scientifically supported threshold of THC bodily content to provide evidence for per se impaired driving in this state. The commission shall exist until it submits the final report.

Can a Michigan CPL Holder Concealed Carry on a Boat?

Published on: April 3, 2019 | by Patrick Barone

Michigan is often referred to as the “Great Lakes State.” Four of the five Great Lakes share borders with Canada, and when combined, all five of the Great Lakes share borders with seven other states, including Illinois, Indiana, Minnesota, Ohio, Pennsylvania, Wisconsin and New York. Then there is Lake St. Clair and the Detroit River, both of which also share borders with Canada. Consequently, boats in Michigan have the potential of originating their travels in a lake or river governed by State waters then crossing over into waters governed by a different state, or even crossing over into international waters. Unlike vehicles on land, these boundaries between states and countries are not always readily discernable. These facts combined with other unique qualities applicable to boating generally mean that there is no definitive answer to the “guns in boats” question that will apply in all situations.

Another complicating factor is that there is no law in Michigan that specifically addresses this issue. While MCL § 28.425c does provide that a person with a CPL may carry concealed anywhere in the state (unless otherwise prohibited) including inside a vehicle, the term vehicle as used here probably does not include powerboats and other kinds of vessels, such as sailboats. However, this also is not 100% clear on its face.

There are also various laws applicable to boating and guns that appear to apply only in very specific scenarios, such as MCL §324.40111(2) which is applicable to boats used while hunting. This sub-section provides that “[E]xcept as otherwise provided in this part or in a department order authorized under section 40107, a person shall not transport or have in possession a firearm in or upon a vehicle, unless the firearm is unloaded … in a motorized boat.” Arguably this law, and others like it, are designed to stop poaching, and don’t otherwise apply to recreational boating.

Former RICO Prosecutor Offers Insider Tips for Avoiding Opioid and Prescription Fraud Investigations

Published on: March 15, 2019 | by Patrick Barone

The Barone Defense Firm is pleased to announce that Patrick Barone and Keith Corbett will be co-presenting to the Oakland County Bar Association’s Medical Legal Committee on April 4, 2019. Their presentation will offer attendees an insider view of the federal government’s tactics, objectives and methods of conducting an opioid fraud investigation. They will also offer tips for avoiding governmental scrutiny as well as what to do when contacted by the government.

Mr. Corbett will take the lead role in this presentation. He is an entertaining and informative speaker and will draw upon the wealth of knowledge and experience gained over the three decades he spent under the employ of the Department of Justice (DOJ), the institution charged with the investigating and prosecuting Medicare fraud. As Chief of the Organized Crime Strike Force for the United States Attorney’s Office, Mr. Corbett gained invaluable insight into what happens “behind the curtain” of the government’s opioid investigations. He will use this knowledge to provide seminar attendees with insider tips for avoiding the scrutiny of the Federal Government and offer advice for how to handle the threat of prosecution when such scrutiny becomes unavoidable.

This topic is currently of great concern to all health care professionals and the attorneys representing them due to the increasing federal pressure to investigate and hold responsible all health care professionals who engage in prescription fraud, with a special emphasis on cases involving opioids. For example, the Department of Health and Human Services announced late last year that they would spearhead a much more aggressive stance on prescription fraud, with a focus on stemming the opioid crisis in America. These increased efforts included the dispatch of 300 new prosecutors whose efforts will be supervised by an Opioid Coordinator in each Department office. The number of prosecutions and excluded providers is expected to increase in 2019.

When is a Doctor’s Referral Fee a Crime?

Published on: March 1, 2019 | by Barone Defense Firm

It is unlawful for a doctor to receive any kind of payment or thing of value when the underlying services are payable by a Federal Health Care Program, including Medicare and Medicaid. Services may include medical services, drugs or supplies. The thing of value can include money, restaurant meals, event tickets, hotel rooms etc. Less obvious might be additional and/or excessive compensation for a particular job, such as a consultancy. In legal terms such compensation is called a “remuneration.”

Based on the Anti-Kickback Statute, found at 42 U.S.C. § 1320a-7b(b) it is a crime to either pay or receive such remuneration. The law indicates as follows:

(b) Illegal remunerations

Restoration of Firearms Rights in Michigan After Felony Conviction

Published on: February 14, 2019 | by Patrick Barone

Michigan law provides that if you have been convicted of a felony you may not use, possess transport, sell or carry a firearm for a period of either three or five years. After this period has elapsed limited firearms rights under state law will either be returned to you automatically, or you will be required to affirmatively seek to restore such rights by petitioning a judge. It is important for you to understand that any restoration granted applies only to your eligibility under Michigan law. Although pursuant to Michigan law you may lawfully use, possess, transport and sell a firearm, you may still be prohibited from same under Federal law. This means that:

After restoration of your rights, the only firearms you can possess or use are certain types of firearms that do not take a modern cartridge, i.e., a pellet rifle, muzzle-loader, or black powder gun.

Knowing these limitations, if you are still interested in a restoration of your firearms rights, then you should also know that the specific felon in possession statute appears in the Firearms chapter of the Michigan Penal Code, and is found at Michigan Compiled Laws § 750.224f. This law defines the term “felony” as being a conviction for a crime that is punishable by imprisonment for four years or more. Some felonies are punishable by maximum terms of less than four years, and if you were convicted of such a crime, then this law will not prohibit you under this statute.

Slow Driving, Glazed Dilated Eyes and Odor Sufficient to Prove Marijuana Impairment

Published on: February 13, 2019 | by Patrick Barone

Michigan’s recreational and medical marijuana laws continue to be amended, modified and refined. These changes have helped to clarify many aspects of these laws, but when it comes to driving, a big unanswered question remains; how do the police and prosecutor prove impairment from Marijuana? There is no legal limit for marijuana, and many question the efficacy of field sobriety tests in reliably predicting intoxication.

At present, regarding this issue, Michigan’s recreational marijuana law, known formally as the Marihuana Cultivation and Taxation Act, indicates in sec. 4 only that Michigan law does not permit:

a) operating, navigating, or being in physical control of any motor vehicle, aircraft, snowmobile, off-road recreational vehicle, or motorboat while under the influence of marihuana; and b) consuming marihuana while operating, navigating, or being in physical control of any motor vehicle, aircraft, snowmobile, off-road recreational vehicle, or motorboat, or smoking marihuana within the passenger area of a vehicle upon a public way.

Keith Corbett to Focus on Defense of Federal Financial Fraud Crimes

Published on: February 12, 2019 | by Patrick Barone

Keith Corbett to Focus on Defense of Federal Financial Fraud Crimes
Effectively immediately, Keith Corbett, Senior Trial Lawyer at the Barone Defense Firm, will be focusing his practice on the Federal defense of complex financial crimes, including, prescription fraud, billing fraud and Medicare fraud. He will also continue to handle other matters at the Firm, such as the defense of intoxicated driving cases and other state crimes.

Prior to joining the Barone Defense Firm in 2013, Keith had a long career as a prosecutor which began at the State Court level with the Oakland County Prosecuting Attorney‘s office in 1974. However, much of Keith’s wide breadth of knowledge and experience was gained in the Federal Courts while prosecuting the major organized crime families in Detroit. These prosecutions were most often based on various proven violations of the Racketeer Influenced and Corrupt Organizations Act of 1980, also known simply as the RICO Act. This Act defines and sets forth various kinds of prohibited activity and is most often applicable when such activity is performed as part of an ongoing criminal organization. The act also provides for criminal penalties. Among other things, RICO allows for the prosecution of leaders for crimes they ordered others to do, such as murder or other unlawful activities related to the criminal syndicate, such as various financial crimes.

During his tenure with the U.S. Attorney’s Organized Crime Unit, Keith was involved in the prosecutions of 17 members and associates of the Detroit La Cosa Nostra (LCN), and some of the most well-known figure federal criminal lawyer s involved in Detroit’s organized crime, including the Zerilli, Tocco, and Beckham families.

Must a Licensed Health Care Worker Report a DUI to LARA?

Published on: January 25, 2019 | by Patrick Barone

Yes, Michigan law requires all licensed health care workers to self-report all criminal convictions to the Department of Licensing and Regulatory Affairs (LARA). This reporting requirement includes all intoxicated driving offenses. Additionally, Michigan law provides that clerks of the court must also report a licensed health care worker’s drunk driving conviction to LARA. Thus, one way or the other, LARA will learn of the conviction, and will take whatever action they deem appropriate.

Specifically, Michigan Compiled Laws Sec. 333.16222(3) indicates as follows:

(3) A licensee or registrant shall notify the department of any criminal conviction within 30 days after the date of the conviction.

Supreme Court to Rule: Can Unconscious Driver Consent to Blood Draw?

Published on: January 24, 2019 | by Patrick Barone

On January 11th the United States Supreme Court indicated that they would hear a case arising out of the state of Wisconsin involving the constitutionality of a warrantless blood draw from an unconscious person. The name of the case is Mitchell v. Wisconsin and the State Court’s opinion is found at State v. Mitchell, 383 Wis.2d 192, 914 N.W.2d 151, 2018 WI 84 (Sup. Ct. Wisc., 2018). This state court opinion contains the following facts and analysis; first, the defendant drank to the point of passing out, meaning he was voluntarily rendered unconscious. A roadside breath test suggested that the defendant had a breath alcohol concentration of 0.24. The blood test came back slightly lower at 0.222. After the Wisconsin Supreme Court upheld the warrantless blood test, the defendant asked the United States Supreme Court (USSC) to hear the case.

In analyzing if the warrantless blood draw from the unconscious person was constitutionally permissible, the Wisconsin Supreme Court reviewed both prior USSC cases of McNeely and Birchfield and focused on the provisions of the state’s implied consent law. The state court found that the search was permissible because the defendant’s self-induced physical condition did not render Wisconsin’s Implied Consent presumption unreasonable under the totality of circumstances. This was based on four factors: (1) by exercising the privilege of driving on Wisconsin highways, the defendant’s conduct demonstrated consent to provide breath, blood or urine samples if law enforcement had probable cause to believe that he had operated his vehicle while intoxicated, (2) the arresting officer had probable cause to arrest the defendant for driving while intoxicated, (3) the defendant chose to drink sufficient alcohol to produce unconsciousness, and; (4) by his conduct, the defendant forfeited the statutory opportunity to assert that he had “withdrawn consent” he previously gave. This opinion suggests that had the driver, prior to becoming unconscious, manifested any intent to withdraw his consent, then the outcome would have been different.

By deciding to hear the case, the USSC has signaled their intention to rule on the constitutionality of the Wisconsin decision/law. This is interesting because there is a split of authority on this issue at the State Court level. In fact, Wisconsin is among 29 states that allow warrantless blood draws from persons who are unconscious. The remaining states have either not ruled on the issue, or do not allow them.

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.

Michigan Criminal Defense Law Blog