Komorn law is pleased to report another victory for a client entangled in the justice system.
After a lengthy evidentiary hearing, we heard the magic words stated from the Court,
For these reasons I am going to grant the defendants motion to suppress the evidence seized (our client’s blood) because probable cause did not exist to arrest the driver.
Background
This case was initiated back in January of 2021. Originally charged as a driving under the influence of cannabis, as we see in so many cases, the driver admits to smoking cannabis at some point prior to driving.
After performing some field sobriety tests most people could not pass sober on a warm windless day… you have an arrest. This leads to a blood draw and some charges alleging you were intoxicated while operating a motor vehicle.
Delay of Game
This case was delayed, mostly because in 2022, the Michigan State Police Forensic Science Division (MSP/FSD) announced that it was halting THC testing because the toxicology test used a reagent in the preparation of the sample that converted CBD to THC.
The MSP/FSD then shut itself down, to establish a new THC testing platform. Allegedly, to avoid a backlog during the offline period beginning in August, the FSD outsourced some (700) samples to a private toxicology lab.
Upcharged
It was at that time the State amended the charges in this case from a driving under the influence of marijuana to Operating Under the influence of a combination of Alcohol and a controlled substance (marijuana).
It should be noted that our clients blood alcohol level was below the legal limit, however for reasons that are not supported by science, logic or law, the States theory of criminality was a below the legal limit alcohol level and the presence of THC in the blood.
Officer Report
The story of this case began where it should have ended, at the traffic stop. The arresting officer claimed he observed our client driving with expired tags.
When the officer got behind our client’s vehicle, my client was aware that his tags were expired and upon seeing the police vehicle driving behind him, pulled into a driveway he was familiar with and had done work at that house before.
Upon observing this behavior, the officer became extremely suspicious and after passing by the driveway our client had pulled into, circled back around and waited for our client to depart from the driveway he had pulled into.
Sure enough when our client began to drive again, the office caught back up to our client, followed him for approximately 3/4 of a mile before turning on his sirens and pulling our client over.
Upon approaching the driver, screaming at my client, the officer demanded to know why the driver was “ trying to short block him”.
What do you have in the car, where are you going, why are you being so suspicious and what is wrong with you. Our client tried to explain, his other vehicle wouldn’t start that night, and he was forced to use this vehicle he was driving despite knowing it did not have current registration of the plates.
The officer did not believe our client, claimed he smelled marijuana in the car, and ordered my client out to perform the field sobriety tests.
The Evidentary Hearing
The issue we raised was at the evidentiary hearing, was that probable cause to arrest under these circumstances was not supported by the evidence.
In addition to the police reports the in car video and body cam evidence, was a treasure trove of exculpatory evidence, which supported our position.
After a very thorough cross examination of the arresting officer, including but not limited his training in Field sobriety testing and his substantial compliance with the standards prescribed by the National Highway Traffic Safety Administration (NHTSA).
“Standardized field sobriety test” means 1 of the standardized tests validated by the National Highway Traffic Safety Administration. A field sobriety test is considered a standardized field sobriety test under this section if it is administered in substantial compliance with the standards prescribed by the National Highway Traffic Safety Administration.”MCL 257.62a.
The Court agreed with our position and suppressed the evidence that was seized based upon the illegal arrest and violation of my clients 4th amendment right to be free from illegal searches and seizures.
Charged With DUI or A Cannabis Related Crime?
Hire a Lawyer that has specialized in fighting for those that want to take a stand against the “justice system”
A big shout out goes to our client for having the courage to fight the state on this silly over charged and baseless crime.
When you take a stand and fight for your rights… the cost to hire a lawyer can end up to be less than what the system will takes from you.
Additionally, the Judge in our case was patient, objective, composed and impartial exhibiting some of the best qualities and demeanor from the bench in recent memory.
A Reminder
Limit chit chat and interacting with a police officer during a traffic stop. Admitting to smoking cannabis, although legal, in these situations almost always creates suspicion for officers, that will surely result in the driver being asked to step out of the car so the officer can determined if you are safe to drive.
A driver is not required to participate in providing evidence to the police that will help convict that driver. Participating in the field sobriety testing is not required, and most people should not presume that independent of their self perceived athleticism, that they will satisfy the officers concerns by taking these tests. It is ok to say, my lawyer has told me not to take these tests.
In this case, there was literally no bad driving or even the suggestion that my client was driving less prudent than the normal driver. This case was made by, manufactured by the admission of “ smoking cannabis” and not satisfying the arresting officers requested tests.
It was a good day and the fourth Amendment is still a thing for now.
Vehicle Code:Persons under the age of 21 may be prosecuted for operating a motor vehicle with the presence of marihuana in their system
Criminal Law:Ethnic intimidation based on gender includes harassing or intimidating another person because of the actual or perceived gender of that person.
Statutes: Code of Criminal Procedure amended to prohibit issuance of appearance tickets to a person arrested for an “operating while intoxicated” offense;Juvenile Law: Individuals who are 17 years of age to be treated as juveniles in criminal proceedings rather than automatically being treated as adults;Did You Know: The mere presence of an unidentified cocaine metabolite is insufficient to prove operation of a vehicle with the presence of “any amount” of cocaine in the body.
Statutes: The Code of Criminal Procedure amended to require persons arrested for certain misdemeanor and ordinance violations not exceeding 1-year in jail to be released from custody upon issuance and service of an appearance ticket;Vehicle Code: The Michigan Vehicle Code amended to eliminate the requirement to provide an audible signal when overtaking another vehicle.
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The court granted our motion to Suppress and Dismiss all evidence
“ The manner by which the evidence was seized violated the accused 4th Amendment Rights, and therefore that evidence is suppressed and all charges shall be dismissed. “
Just leaving Gaylord, where they are still felony prosecuting folks for cannabis. We just completed the second day of an evidentiary hearing and Komorn Law PLLC is happy to report the the Court granted our motion to Suppress and Dismiss all evidence; which included all of the alleged felony Marihuana evidence and the alleged Psilocybin evidence.
The Judge, was well prepared, well researched and delivered a lengthy and detailed analysis of the issues which included but was not limited to the following:
Warrantless Searches are Presumptively invalid, unless the state establishes an exception.
In this case the execution of the eviction order was a recognized exceptions. However that exception is limited to Safety Sweep, which had been exhausted. The next factual sequence involved a search of a drawer, where a firearm was allegedly found.
The Court determined this was an unreasonable search and seizure of the firearm, but this did us no good because my client was not charged with any gun charges.
The court went on to find somewhere in the time line of the execution of the order of eviction, my client allegedly consented to the search, ( usually not good). What was remarkable to me was that the Court found that while there was consent to search, that consent does not allow the seizure of property that is not illegal or probable cause of a crime ( in this case “ marihuana”).
The Court went on to read from MRTMA section 2/4/5/15, correctly concluding that the 10 ounces within the dwelling was not illegal ( civil infraction) and not a crime, and even consent to search does not provide consent to seize items that were not illegal.
The Court then went on to find that the State did not carry its burden of rebutting the presumption of the warrantless search and seizure of the alleged psilocybin. I kept waiting for the judge to find an exception or some reason to justify the search and seizure but it never happened. I even held my breath for the “Good Faith” exception ruling that sometimes happens and that to was not a finding the court made.
Anyhow, it is always rewarding as a lawyer when you go to lengths to establish the illegality or unconstitutionality of a search ( or some government action) and the court agrees. Prosecutor threatening appeal. For now we are calling it a Huge Win.
DISCLAIMER In a legal environment that continues to evolve, it is essential to stay informed and seek guidance from knowledgeable professionals. Before acting on any information you find on the internet, this website, any linked website, any referring website or any verbal or written information consult a licensed attorney. Contact Komorn Law today to discuss your case and learn how we can assist you in navigating the complexities of Michigan’s laws. Consult an Attorney – Remember you’re on the internet.
December 6, 2022 – Through the diligence and tenacity of trial attorney Michael Komorn and the team at Komorn Law. We are proud to announce – another case dismissed.
YPSILANTI, MI – Less than four months after a company sued Ypsilanti over the city’s marijuana business licensing process, the company has dropped the legal claims.
AMA Operations, LLC — a company that sought one of 10 local marijuana retailer permits — alleged in a lawsuit filed in December the process the city used to dole out the permits broke Michigan law and resulted in “preferential treatment” for competitors.
The company took issue with a scoring system used to rank applicants and sought a court order to nullify some competitors’ permits.
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Mar 30, 2021Roadside drug tests piloted in Michigan last year can’t immediately tell police if a driver is high, but they are expected to detect recent ingestion …
Mar 30, 2020ANN ARBOR, MI — The Hash Bash marijuana rally that was supposed to happen this Saturday in Ann Arbor is postponed until fall, but organizers …
DISCLAIMER This post may contain re-posted content, opinions, comments, ads, third party posts, outdated information, posts from disgruntled persons, posts from those with agendas and general internet BS. Therefore…Before you believe anything on the internet regarding anything – do your research on Official Government and State Sites, Call the Michigan State Police, Check the State Attorney General Website and Consult an Attorney – Use Your Brain.
Komorn Law is proud to report a significant and relevant case victory directly related to our recent Michigan Court of Appeals Opinion win in the People v. Thue case where as a registered medical marijuana patient cannot be penalized for consuming medical marihuana while on probation.
The Client Issue
Our client was charged with violating his probation for allegedly testing positive for “Marihuana” on 2 occasions. The allegations were based upon a urine test which both indicated the metabolite of Delta-9 THC, Carboxy -11/ COOH-11.
Our client was certified as a medical marihuana patient after the date of the first alleged violation but before the second alleged violation. We had filed several motions, including but not limited to, a “Motion to allow for the Medical Use of Marihauana While on Probation”.
A probation violation hearing began on January 14, 2021, whereby testimony was taken, from the probation officer, and our expert.
Our position and the evidence we presented established that the urine samples indicating the metabolite Carboxy-11 COOH-11, were from a lawful source. The matter was adjourned, mid hearing.
Return to Court
On February 22, 2021 – when we appeared before the court again in person, we were happy to hear the court had read and reviewed the People v,.Thue case, commented on our involvement, and was prepared to rule on the allegations regarding the 2 positive urine tests.
Because of the People v,Thue case our previous position regarding “lawful THC” became moot.
In summary the court found that because of the current valid medical marihuana patient status of my client, he could not be revoked from probation, for either violation. That is to say, that the allegation of his use prior to becoming a registered medical marihuana patient (and the allegation after he became a certified patient) were dismissed.
“Counsel, that is my interpretation of the case” the Court said. To which I replied, I agree that is the correct interpretation.
The Court dismissed both of the violation, and amended the sentencing order to allow for the medical use of cannabis while on bond.
Huge shout out to our client for his courage in wanting to assert his rights and challenge the allegations, the legal defense team at Komorn Law PLLC, and Dr. Land for his expertise in science and assistance in presenting our case.
(1) A person shall not carry a dagger, dirk, stiletto, a double-edged nonfolding stabbing instrument of any length, or any other dangerous weapon, except a hunting knife adapted and carried as such, concealed on or about his or her person, or whether concealed or otherwise in any vehicle operated or occupied by the person, except in his or her dwelling house, place of business or on other land possessed by the person.
(2) A person shall not carry a pistol concealed on or about his or her person, or, whether concealed or otherwise, in a vehicle operated or occupied by the person, except in his or her dwelling house, place of business, or on other land possessed by the person, without a license to carry the pistol as provided by law and if licensed, shall not carry the pistol in a place or manner inconsistent with any restrictions upon such license.
(3) A person who violates this section is guilty of a felony, punishable by imprisonment for not more than 5 years, or by a fine of not more than $2,500.00.
Case Victory
Komorn Law PLLC, is proud to announce another victory and rare outcome in the broken criminal justice system.
Case Background
The allegations in this matter, arose out of a traffic stop by the Sherriff’s Department. It was not a surprise that the case had several issues related to the stop, arrest and seizure of both the accused and the evidence intended to be used at trial.
After raising these issues, and being prepared to proceed with a hearing to address these issues, the state capitulated – or – said another way, they made an offer that we couldn’t refuse.
Important Legal Lesson For Gun Owners
This case represents an important legal lesson for second amendment possessors and advocates.
If you possess a firearm and while transporting it in your vehicle are involved in a traffic stop by the police. You can be assured that the manner or method of that transport will be heavily scrutinized (see below for Michigan firearm transport in vehicle laws).
My client had expressed to me his top priorities for the outcome of this matter, and on that list was his right to preserve his right to possess and own a firearm ( in addition to avoidance of a felony conviction, jail, or similar encumbrances) .
This was based upon concerns for safety at or upon his residence.
The final result and outcome in this matter allowed him to achieve this goal and move on with his life without affecting his future while retaining all of his fundamental rights.
Case Outcome
Client was charged with 5 year felony-Carrying a Concealed Weapon. Client resolved matter by pleading to a reduced charge of an unregistered vehicle and sentenced to a fine. Any and all second amendment rights, including ccw / pistol permit retained and unaffected by this disposition.
Mission Accomplished!
Tap the number for an Attorney to fight for your freedom and your life > 248-357-2550 – Komorn Law
GUN LAWS in MICHIGAN
As with any law or anything you find on the internet, before you act, one should get their information directly from a government website and/or consult an attorney.
Michigan’s Gun Laws
Licenses are issued at the local level by county clerks. A permit to purchase, a background check and firearms registration are required to buy a handgun from a private individual.
Open carry is legal in Michigan with several restrictions. Open carry is allowed in more places than concealed carry as the restricted areas which can be found in MCL 28.425o apply to concealed carry.
28.425o Premises on which carrying concealed weapon or portable device that uses electro-muscular disruption technology prohibited; “premises” defined; exceptions to subsections (1) and (2); violation; penalties.
Concealed carry is legal in Michigan with a Concealed Pistol License (CPL) and for individuals at least 21 years old who have CCW licenses/permits issued with successful completion of a firearms training.
A Concealed Pistol License (CPL) is issued to residents only, with exceptions for active duty military stationed in Michigan as well as active duty military stationed outside of Michigan.
Each state in the USA has reciprocity laws. Michigan currently recognizes resident permits from all states, the District of Columbia and Puerto Rico (Note: Before traveling check each states laws for any changes or updates from an official state website).
Michigan is a Castle Doctrine(see Self Defense Act 780.972 below) state. A person may use deadly force, with no duty to retreat, if the individual has an honest and reasonable belief that such force is necessary to prevent the imminent death, great bodily harm or sexual assault to that person or to another individual. Any person who uses a gun legitimately in self-defense has immunity from civil liability.
The Law for a Common Question About Transporting a Firearmin Michigan
Transporting or possessing firearm in or upon motor vehicle
750.227d Transporting or possessing firearm in or upon motor vehicle or self-propelled vehicle designed for land travel; violation as misdemeanor; penalty.
Sec. 227d.
(1) Except as otherwise permitted by law, a person shall not transport or possess in or upon a motor vehicle or any self-propelled vehicle designed for land travel either of the following:
(a) A firearm, other than a pistol, unless the firearm is unloaded and is 1 or more of the following:
(i) Taken down.
(ii) Enclosed in a case.
(iii) Carried in the trunk of the vehicle.
(iv) Inaccessible from the interior of the vehicle.
(b) A pneumatic gun that expels a metallic BB or metallic pellet greater than .177 caliber unless the pneumatic gun is unloaded and is 1 or more of the following:
(i) Taken down.
(ii) Enclosed in a case.
(iii) Carried in the trunk of the vehicle.
(iv) Inaccessible from the interior of the vehicle.
(2) A person who violates this section is guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $100.00, or both.
Portable device or weapon directing electrical current, impulse, wave, or beam; sale or possession prohibited; exceptions; use of electro-muscular disruption technology; violation; penalty; verification of identity and possession of license; prohibited use; definitions.
Short-barreled shotgun or rifle; making, manufacturing, transferring, or possessing as felony; penalty; exceptions; short-barreled shotgun or rifle 26 inches or less; short-barreled shotgun or rifle greater than 26 inches; violation of subsection (5) as civil infraction; seizure and forfeiture; applicability of MCL 776.20 to subsection (3).
Armor piercing ammunition; manufacture, distribution, sale, or use prohibited; exceptions; violation as felony; penalty; definitions; exemption of projectile or projectile core; rule.
Possession of firearm or distribution of ammunition by person convicted of felony; circumstances; penalty; applicability of section to expunged or set aside conviction; definitions.
Carrying or possessing firearm when committing or attempting to commit felony; carrying or possessing pneumatic gun; exception; “law enforcement officer” defined.
Committing or attempting to commit crime involving violent act or threat of violent act against another person while wearing body armor as felony; penalty; consecutive term of imprisonment; exception; definitions.
“Aircraft,” “approved signaling device,” and “vessel” defined; sections inapplicable to approved signaling device; sale, purchase, possession, or use of approved signaling device; violation as misdemeanor; penalties.
Obtaining pistol in violation of MCL 28.422; intentionally making material false statement on application for license to purchase pistol; using or attempting to use false identification or identification of another person to purchase firearm; penalties.
Intentionally discharging firearm from motor vehicle, snowmobile, or off-road vehicle as crime; penalty; exceptions; other violation; consecutive terms; self-defense; “peace officer” defined.
Intentionally discharging firearm at dwelling or potentially occupied structure as felony; penalty; exceptions; other violation; consecutive terms; definitions.
Threatening to commit violence with firearm, explosive, or other dangerous weapon against students or employees on school property; specific intent or overt act; violation arising out of same transaction; definitions.
Disposition of seized weapon; immunity from civil liability; “law enforcement agency” defined.
Act 372 of 1927
AN ACT to regulate and license the selling, purchasing, possessing, and carrying of certain firearms, gas ejecting devices, and electro-muscular disruption devices; to prohibit the buying, selling, or carrying of certain firearms, gas ejecting devices, and electro-muscular disruption devices without a license or other authorization; to provide for the forfeiture of firearms and electro-muscular disruption devices under certain circumstances; to provide for penalties and remedies; to provide immunity from civil liability under certain circumstances; to prescribe the powers and duties of certain state and local agencies; to prohibit certain conduct against individuals who apply for or receive a license to carry a concealed pistol; to make appropriations; to prescribe certain conditions for the appropriations; and to repeal all acts and parts of acts inconsistent with this act.
History: 1927, Act 372, Eff. Sept. 5, 1927 ;– Am. 1929, Act 206, Imd. Eff. May 20, 1929 ;– Am. 1931, Act 333, Imd. Eff. June 16, 1931 ;– Am. 1980, Act 345, Eff. Mar. 31, 1981 ;– Am. 1990, Act 320, Eff. Mar. 28, 1991 ;– Am. 2000, Act 265, Imd. Eff. June 29, 2000 ;– Am. 2000, Act 381, Eff. July 1, 2001 ;– Am. 2012, Act 123, Eff. Aug. 6, 2012 Popular Name: CCW Popular Name: Concealed Weapons Popular Name: CPL Popular Name: Right to Carry Popular Name: Shall Issue
Definitions; lawful owning, possessing, carrying, or transporting of pistol greater than 26 inches in length; conditions; firearm not considered as pistol; election.
License to purchase, carry, possess, or transport pistol; issuance; qualifications; applications; sale of pistol; exemptions; transfer of ownership to heir or devisee; nonresident; active duty status; forging application as felony; implementation during business hours.
Individuals not required to obtain license; completion of record by seller; duties of purchaser; noncompliance as state civil infraction; penalty; entering information into pistol entry database; obtaining copy of information; exemption; material false statement as felony; penalty; rules; verification; definitions.
Entry of order or disposition into law enforcement information network; written notice; person subject of order; request to amend inaccuracy; notice of grant or denial of request; hearing; entry of personal protection order; service required.
Validity and duration of concealed pistol license issued before December 1, 2015; duties of county clerk; verification by state police; applicant issued personal protection order; emergency license; requirements; notice of statutory disqualification; surrender of emergency license; compilation of firearms laws by legislative service bureau; distribution; statement.
License application; form; contents; material false statement as felony; record; fee; verification of requirements; determination; circumstances for issuance; information of court order or conviction; fingerprints; issuance or denial; individual moving to different county; replacement license; suspension or revocation of license; furnishing copy of application to individual; list of certified instructors; delivery of license by first-class mail; liability for civil damages; voluntary surrender of license; definitions.
Concealed pistol license; possession; disclosure to peace officer; violation; fine; notice to department; suspension or revocation by county clerk; entry into law enforcement information network; seizure by peace officer; forfeiture; “peace officer” defined.
Acceptance of license as implied consent to submit to chemical analysis of breath, blood, or urine; collection and testing; refusal to take chemical test; definitions.
Premises on which carrying concealed weapon or portable device that uses electro-muscular disruption technology prohibited; “premises” defined; exceptions to subsections (1) and (2); violation; penalties.
Suspension, revocation, or reinstatement of license; notice; surrender of license; order or amended order; entry into law enforcement information network; effect of suspension or revocation order; failure to receive notice.
Sale of firearms by federally licensed firearms dealer; sale of trigger lock or secured container; exceptions; brochure or pamphlet; statement of compliance; notice of liability; action by political subdivision against firearm or ammunition producer prohibited; rights of state attorney general; exceptions; effect of subsections (9) through (11); violation; penalties; definitions.
750.246 Mutilation.
Sec. 246.
Mutilation of flag, etc.—Any person who shall publicly mutilate, deface, defile, defy, trample upon or by word or act cast contempt upon any such flag, standard, color, ensign, coat-of-arms or shield, is guilty of a misdemeanor.
DISCLAIMER This post may contain re-posted content, opinions, comments, ads, third party posts, outdated information, posts from disgruntled persons, posts from those with agendas and general internet BS. Therefore…Before you believe anything on the internet regarding anything do your research on Official Government and State Sites, Call the Michigan State Police, Check the State Attorney General Website and Consult an Attorney.
