Michigan Criminal Defense Law Blog

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into the extent of the criminal activity is investigated, all suspected drunk drivers will have their blood withdrawn for testing. This blood can be withdrawn with the consent of the driver, or by a warrant, if the driver refuses to give blood.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 Barone Defense Firm is proud to announce that attorney Michael Boyle was recently included among a list of Top Lawyers in non-white collar criminal defense. The well-researched list was compiled by the joint efforts of Grand Rapids Business Journal and Grand Rapids Magazine.  Mike is one of only 5 lawyers listed in this specific category, is well-deserving and in good company.

And being named to this prestigious list is certainly no accident. Mike Boyle first dedicated his professional life to the defense of criminal cases when he joined the Barone Defense Firm in 2005. Over the next 10 years, Mike worked hard, constantly honing his trial skills and eventually becoming a graduate of the Gerry Spence Trial Lawyer’s College in 2013.  He also spent considerable time acquiring highly sophisticated knowledge of the law and science involved in drunk driving defense. As he continued to use these skills to win drunk driving cases, Mike’s reputation began to grow in the Greater Grand Rapids area, and more than that, throughout Michigan. Then, in 2015, Mike was named the Firm’s first Partner.

Not only is Mike terrific inside the courtroom, but outside the courtroom too.  His empathetic and caring approach is appreciated by his clients and is why they consistently give him top ratings and online reviews.  Mike even earned AVVO’s “Client Choice Award” for the first time in 2017.  In addition to being named a “Super Lawyer” rising star in 2016, Mike also has the auspicious honor of having earned two not guilty verdicts on two different DUI cases in the same week!  He is believed to be the only lawyer in Michigan ever to have done so!

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.

If you are facing a possible conviction on a misdemeanor or felony in Michigan, then you are undoubtedly wondering what the likely sentence will be for a misdemeanor or felony. Michigan judges operate on the theory of “individualized sentencing” meaning that each offender is sentenced according to their own circumstances. Accordingly, the judge sentencing you should consider all relevant and necessary information to allow him or her to fashion an appropriate and proper individualized sentence. Such a sentence should be tailored to the particular circumstances of the case and the offender and should balance both society’s needs for protection and society’s interest in maximizing the offender’s rehabilitative potential.[i] The sentencing judge should consider information that has a logical bearing on the following four sentencing goals:

1. the reformation of the offender,
2. protection of society,
3. the disciplining of the wrongdoer, and
4. the deterrence of others from committing like offenses.[ii]

To help you avoid pleading guilty without any knowledge or expectation of your actual sentence, your lawyer may ask the judge for a “Cobbs[iii] agreement.” If your judge agrees to give one, the judge will advise you before the plea is entered what the judge believes to be an appropriate sentence or sentence range will be at sentencing. In other words, the judge may tell you that the sentence will be “six months in jail” or will fall within “the lower half of the sentencing guidelines.” This preview of the judge’s sentence is supposed to be based on the specific facts of your case and your criminal history, or lack thereof. Prosecutors are not supposed to be party to the terms of this possible sentence.

If you agree to plead guilty based on this sentencing preview and the judge determines later that a different sentence is in fact appropriate, then you may withdraw your plea.[iv]  There are some situations where this is not true, however. One example of when the judge need not follow the previewed sentence is where you violate a precondition the plea and Cobbs evaluation for a misdemeanor or felony. In such circumstances, you are not entitled to the benefit of the agreement. If this happens, you will not be allowed to withdraw your plea even if the sentence is worse the promised. [v]