Michigan Criminal Defense Law Blog

The Interplay Between Legalized Marijuana and Intoxicated Driving

Published on: November 7, 2018 | by Patrick Barone

Now that Michigan’s voters have approved the legal use of recreational marijuana, how will this impact Michigan’s laws against intoxicated driving? The answer is – not very much.

As of the date of this article, it is unlawful in Michigan to drive under the influence of or while impaired by alcohol, drugs, or a combination of alcohol or drugs. This includes marijuana. However, the current state of the law in Michigan is that there are two different standards that apply to marijuana, one for medical marijuana users and one for everyone else. For a person with a medical marijuana card who is otherwise using medical marijuana legally, the police must prove that the marijuana substantially lessened their ability to operate the motor vehicle. For everyone else, zero tolerance applies, and simply driving with any amount of marijuana in your system is enough to violate the intoxicated driving laws.

Because marijuana has just become legal to use recreationally in Michigan, it will take some time for the intoxicated driving laws to catch up to this new reality. When they eventually do catch up, two things are likely to happen. First, marijuana will no longer be classified as a zero tolerance “any amount” drug. This zero-tolerance standard will be replaced by a legal limit for marijuana. Other states have set arbitrary amounts, such as 5 ng of THC (marijuana’s active ingredient), so the first thing Michigan’s lawmakers will need to decide is this arbitrary legal cut-off. Next, Michigan’s laws of intoxicated driving, found in the Michigan traffic code’s chapter 257 will need to be amended. Until both things happen, Michigan’s recreational marijuana users will be in a sort of legal limbo while trial courts try to decide the appropriate legal standard for judges and juries to apply in the review of these cases.

Use of Legalized Marijuana While on Probation in Michigan

Published on: November 7, 2018 | by Patrick Barone

Now that Michigan’s voters have spoken, and we are now among a handful of states that allow the legalized use of marijuana, how will this change in the law impact the terms and conditions of probation? The answer is, it depends on the judge!

When a judge determines the conditions of probation for any crime, he or she is governed by Michigan Compiled Laws section 771.3, which sets forth all the mandatory conditions of probation. This law does not specifically state that a judge can order a person to stop using drugs or alcohol, but there is a catch-all provision, and this indicates that a judge may impose any other lawful condition of probation as the circumstances of the case require or warrant or as in his/her judgment are proper. Thus, it is very common for judges to order people to stop using alcohol, illegal drug or even legal drugs without a prescription. For those judges who believe that the circumstances of a case require the non-use of recreational marijuana, all the judge need do is order it as a condition of probation.

This issue has already been litigated as it relates to medical marijuana, and Michigan’s courts have found that the conditions of probation can include the non-use of lawfully prescribed medical marijuana. There seems to be no good reason why the same would not be true of recreational marijuana.

How to Prepare for Your Michigan Implied Consent Hearing

Published on: October 31, 2018 | by Patrick Barone

Michigan drivers suspected of intoxicated driving based on the consumption of alcohol, marijuana, or other intoxicating substances, must submit a breath, blood or urine sample upon the reasonable request of a peace officer. A failure to provide such a sample will result in the police obtaining a warrant for your blood. You will also be charged with an OWI along with a separate charge for an alleged violation of Michigan’s implied consent law. This will result in the police destroying your Michigan driver’s license. The officer will then issue you a 625g paper permit, also called a DI-93, and this will allow you to drive temporarily.

You have a right to appeal the police officer’s determination that you violated the implied consent law, and such appeals go before the Administrative Hearings Section of the Michigan Secretary of State. You or your attorney must mail the request for this appeal hearing within 14 days of the date of arrest. A failure to do so will result in your driving privileges being automatically suspended for at least one year.

According to the Michigan Implied Consent Law, there are only four issues to be resolved at the appeal hearing:

Possession or Use of Firearm Under the Influence in Michigan

Published on: October 18, 2018 | by Patrick Barone

All firearms are inherently dangerous, so naturally, it is against the law in Michigan to possess or use one under the influence of alcohol or drugs. Because of the danger posed by individuals who violate this law, penalties are quite significant and are set forth in the statute found at Michigan Compiled Laws sec. 750.237.

This statute defines “under the influence” the following three ways;

You are “under the influence” of alcohol, drugs or a combination of alcohol or drugs, and/or
You have a bodily alcohol level (BAC) of .08 or more, or are;
You are impaired by alcohol, drugs or a combination of drugs and alcohol.

This crime is categorized as a misdemeanor punishable by possible imprisonment for up to 93 days. Additionally, if you are found guilty of this crime, you may also be required to pay a fine of not more than $100.00 for carrying or possessing a firearm, or both, and not more than $500.00 for using or discharging a firearm, or both.

Prosecutors Stop Using Results from Improperly Calibrated Breath Test Machines

Published on: September 25, 2018 | by Patrick Barone

Prosecutors across the state of Massachusetts have stopped using breath test results obtained during drunk driving arrests for tens of thousands of motorists between 2011 and 2017. The reason is that defense attorneys representing the drivers discovered that breath test machines throughout the state were improperly calibrated. If was further discovered that state officials tried to hide this fact from both prosecutors as well as defense attorneys. During the litigation defense attorneys representing the alleged drunk drivers learned that the Massachusetts State Police Breath Testing Unit had withheld hundreds of documents showing a far higher calibration failure rate than had been reported. These documents were withheld even after they had been ordered by a judge.

Breath test and computer forensics expert Thomas Workman was involved in the case and was instrumental in helping the defense attorneys uncover the fraud, which included withholding several hundred calibration worksheets the police kept documenting their work. These calibration sheets collectively showed an unreasonably high calibration failure rate. Mr. Workman also determined that the calibration protocol the State Police claimed to operate under did not exist. Because of this ongoing litigation, an agreement was reached whereby older breath test results will no longer be used as evidence. Cases where an accused has already been convicted may pursue an appeal, but only if they can show that their plea or conviction was based only on the breath test, and not on other evidence, such as failed field sobriety tests or erratic driving. For more information, see “Tainted breathalyzer results could force new trials” Salem News, August 16, 2018.

Although this litigation transpired in Massachusetts and involved a Draeger 9510 breath test machine, this does not mean that it has no relevance in Michigan. Like Massachusetts, Michigan also has no calibration protocol. There are administrative rules covering calibration checks, which must be performed once per calendar week. This rule, which can be found at Tests for Breath Alcohol Admin R. R 325.2653, which reads in part as follows: [A]n appropriate class operator who has been certified in accordance with R 325.2658 shall verify an evidential breath alcohol test instrument for accuracy at least once each calendar week, or more frequently as the department may require. Notice the word “calibration” does not appear here. A second paragraph from this administrative rule also indicates that Michigan’s breath test machines “shall be inspected, verified for accuracy, and certified as to their proper working order within 120 days of the previous inspection by either an appropriate class operator who has been certified in accordance with R 325.2658 or a manufacturer-trained representative approved by the department.” While calibration can be performed as part of this 120-day inspection, again, the word “calibration” does not appear within this administrative rule. In fact, the only place the word “calibrate” appears within the whole of the administrative rules is in Table One of Tests for Breath Alcohol Admin R. 325.2658, wherein it indicates that only Class VIB operators can calibrate evidential breath test machines. There is, however, no description of how such calibration is to be effectuated. Worksheets from the 120-day inspections can be obtained through discovery, yet such worksheets also contain no information relative to the way such calibration was conducted.

Barone Defense Firm Obtains Not Guilty on Troy Michigan Drunk Driving Jury Trial

Published on: September 17, 2018 | by Patrick Barone

The Barone Defense Firm is proud to announce a recent not guilty verdict on a Troy Michigan drunk driving case. The Barone Defense Firm Trial Attorney who handled the case was rising super-star Ryan Ramsayer. Here is Mr. Ramsayer’s synopsis of the case, including a summary of the not guilty trial:

Our client’s case arose out of Clawson, Michigan. The Troy District Court, a/k/a, the 52-4 Judicial District Court, is the court having jurisdiction over Clawson Michigan. There are two judges in Troy, the honorable Kirsten Nielsen Hartig and the honorable Maureen M. McGinnis, and Judge McGinnis presided over this jury trial.

As with all cases and clients at the Barone Defense Firm, while simultaneously preparing the case for trial, we attempted to avoid trial by engaging in plea negotiations with the prosecuting attorney. Despite Mr. Ramsayer’s best efforts to avoid trial, the arresting officer and prosecution would not offer less than an impaired. Our Client (hereafter BH, client’s initials used only so as to protect client confidentiality), had to then make the decision of whether to plead guilty take his case to trial. BH looked at the difference in penalties and decided that the trial was his best option. BH works in the auto industry setting up factories for production. For the last year he had been away most of the month in Spring Hill, TN or Buffalo, NY. His biggest fear, outside of driving, was that he had to go through Canada to get to Buffalo. Also, they have a factory in Canada that he could eventually be required to work at. To add extra intrigue, BH just found out that his wife is pregnant while this case was going. This complicated his decision because he knew that an OWI conviction would make it difficult to impossible to get into Canada, and so he knew if he was convicted he would probably lose his job. This meant there was a lot riding on the outcome of this trial.

How Does Drinking on an Empty Stomach Effect My Breath or Blood Test Results?

Published on: September 12, 2018 | by Patrick Barone

Generally, when a person drinks on an empty stomach they will reach a higher blood alcohol concentration more quickly, and this higher concentration will last longer, then if the same amount of alcohol is consumed on a full stomach. This is one reason some people get charged with drunk driving even when they think they are drinking responsibly. They did not realize the little alcohol they had would put them over the legal limit. Here’s why this is true:

There are three things that impact a person’s blood alcohol concentration. These are alcohol absorption, distribution and elimination. Various factors can potentially impact all three of these factors, and possibly increase a person’s breath test. Generally the absorption of alcohol is a function of food in the stomach, distribution is a function of the amount of water present in various tissues in the body and the elimination of alcohol is largely a function of a person’s prior exposure to alcohol.

Ethanol, which is also called “beverage alcohol” or simply “alcohol,” has many interesting traits and characteristics. Because of Ethanol’s unique molecular structure, it will begin to be absorbed into the blood as soon as it comes into contact with tissues in your body. So, the absorption of alcohol will begin in your mouth. However, about 80% of the absorption into your bloodstream will take place in the lower intestine. This means that anything that stands in the way of alcohol getting from your stomach into your small intestine will significantly delay absorption. Certain foods, such as those that are high in fats and proteins, require the most time to digest. While you are digesting, a muscle between your stomach and your small intestine remains closed. Then, as you’re done digesting, the muscle opens, and the contents of your stomach pass into the small intestine. This typically happens over time, meaning smaller amounts of alcohol pass into your bloodstream for each unit of time. Also, as you are drinking alcohol, some elimination takes place in the stomach, and some alcohol is passing into the blood through the stomach tissues and then is eliminated by the liver. This means there’s less alcohol available to pass into the small intestine when the digestion is complete.

Will Michigan Drug Conviction Cause a Driver’s License Suspension?

Published on: September 11, 2018 | by Patrick Barone

Convictions for many drug charges in Michigan will result in a suspension, restriction or even revocation of your driving privilege. This is true even if you were not driving at the time of the offense. The length, type, and severity of the driver license sanction will depend on the charge you are facing and on your prior record.

If you have no prior drug violations, then in most instances your driver license will be suspended for six months. You may be able to obtain restricted privileges, but no matter what, there will be no driving at all for at least the first 30 days. If you wish to obtain restricted privileges, then your lawyer will need to obtain a court order. It is the judge presiding over your case and not the secretary of state who makes this decision. But it is discretionary, so the judge is not obligated to give you restricted privileges just because you ask for them. Your lawyer will explain to you all the factors that will be considered by the judge in making this decision.

On the other hand, if you have one or more prior drug convictions and these convictions happened with the prior seven years, then not only will your driver license will be suspended for one full year, you will also not be able to obtain any restricted driving privileges.

Can I Open Carry on School Grounds with a CPL?

Published on: September 11, 2018 | by Patrick Barone

Yes, unless the school specifically has a policy against open carry, a person with a valid CPL may open carry on school grounds. However, the multitude of laws addressing this topic is so nuanced that a person wishing to open carry on school grounds should consider contacting the school and the local police agency prior to open carrying on school grounds.

The issue of open carry on school grounds has been extensively litigated finally resolved by at the end of July 2018 Michigan Supreme Court opinion by the name of Michigan Gun Owners, Inc v. Ann Arbor Public Schools. In this case, the plaintiffs, Michigan Gun Owners and Michigan Open Carry, Inc., set forth Michigan law supporting open carry on school grounds as follows:

MCL § 750.237a(4) generally prohibits possession of a firearm within a “weapon free school zone”.
MCL § 750.237a(5)(c) exempts “an individual who is licensed by this state or another state to carry a concealed weapon”.
MCL § 28.425o(1)(a) generally prohibits the carrying of a “concealed weapon” at a school or school property. However, this statute specifically provides an exception for a concealed pistol licensee while in a vehicle on school property, if he or she is dropping the student off at the school or picking up the student from the school.
18 USC §922(q)(2)(A) restricts knowingly possessing a firearm in a school zone. An exception exists for an individual licensed to do so by the State in which the school zone is located. 18 USC §922(q)(2)(B)(ii).

It was the Michigan Gun Owner and Michigan Open Carry, Inc.’s position in this case that because of the interplay between the above sections of Michigan law, open carry is allowed, for CPL holders only, and that Michigan Public Schools were precluded from modifying this law in any way by the law of preemption. This second argument was based on MCL § 123.1102, which preempts local units of government from adopting firearm ordinances or regulations.

Am I Responsible for Drugs in a Car I am Driving?

Published on: August 24, 2018 | by Patrick Barone

Yes, it is possible for you to be arrested, charged and convicted of a drug charge for drugs found anywhere inside a car you are driving. Because of the concept of constructive possession, you can be charged even if the drugs don’t belong to you. Provided you have knowledge of the drugs, and the right to control them, you can be charged with possession of drugs that are not actually in your purse or pocket. If there are enough drugs, and other “indicia of intent to sell” you can also be charged with delivery of drugs, a much more serious crime. This concept of constructive possession can be applied to marijuana, unlawful prescription drugs, drugs like heroin, cocaine, meth. and many other drugs.

It’s always good to remember that an arrest is not a conviction, and just because the police can charge you with a crime does not mean the prosecutor can prove it happened. Once you’ve hired an experienced drug crime lawyer, he or she will be looking for various ways to defend and win your case. If you encountered the police while driving a car, and during the encounter, drugs are found, your lawyer will first want to determine if there is a search and seizure issue. If the police violated your fourth amendment rights during the encounter, then this can result in the suppression of any evidence found. Since a drug charge is dependent on evidence of drugs, suppression of the evidence will often lead to dismissal of the charges.

If your car was stopped by the police, then your lawyer will also want to examine the record to determine if the vehicle was lawfully stopped. This is a different kind of search and seizure issue, and just as with the drugs, if your fourth amendment rights were violated by the traffic stop, this can also lead to the dismissal of your case. This is based on the “fruit of the poisonous tree” doctrine, which essentially stands for the proposition that any evidence found after the unlawful stop is inadmissible as evidence.