The Charge – OWI (Accident and 17 nanograms of THC)
Set for Trial
Thursday, March 18, 2021 at 8:00 am. We arrived at the Roscommon District Court House and were prepared for a 2-day jury trial. We had been preparing for weeks prior for this ongoing case from two years ago (March 2019) that the prosecutor insisted on pursuing.
The Complaint
The Complaint against our client was an alleged OWI Operating While Intoxicated/ Under the Influence or a Controlled Substance. As with all OWI cases, we would also need to defend the lesser included charges of (Operating While Impaired). ( link to both Statutes here).
The prosecution had a lab report that stated there was a suspected 17 nanograms of THC and100 nanograms of Carboxy-THC.
Types of Charges
According to the information posted on the Michigan SOS site the following (current 3/20/21)
Operating While Visibly Impaired (OWVI) means that because of alcohol, controlled substance, or other intoxicating substance, you ability to operate a motor vehicle was visibly impaired.
Operating While Intoxicated (OWI) includes 3 types of violations:
Alcohol, drugs or other intoxicating substance in your body substantially affected your ability to operate a motor vehicle safely.
A bodily alcohol content (BAC) at or above 0.08. This level can be determined through a chemical test. High BAC means the alcohol level in your body was at or above 0.17. This level can be determined through a chemical test.
Operating With Any Presence of a Schedule 1 Drug or Cocaine (OWPD) means having even a small trace of these drugs in your body, even if you do not appear to be intoxicated or impaired. This can be determined through a chemical test.
Case Background
In March of 2019, the police were called to the scene of a single car accident. The vehicle, a 2004 Saturn Ion with apprehensive steering issues, had hit an electric utility pole that caused the neighbors to lose power. The car was totaled.
Upon initial contact with the Advanced Roadside Impaired Driving Enforcement (ARIDE) officer, my client explained the cause of the accident. The passenger tires of her vehicle got caught up in the gravel on the side of the road and she was pulled into the ditch. I lost control of the car and hit the pole.
Within 6 minutes of arriving at the scene the ARIDE officer claimed the vehicle and my client smelled of burnt marijuana. No marijuana was found at the scene.
The ARIDE Officer claimed our client’s pupils were dilated. There were initial concerns from the ARIDE officer with my client’s ability to perform the Standard Field Sobriety Tests (SFST) because of the accident.
Within 9 minutes of arriving at the scene, and prior to any examination by the EMS/ Paramedics, one of the EMS declared that she had been smoking doobies and classified it as dirt weed. “I think she reeks like doobies”. I think she’s smoking dirt weed but I think she’s high” were some statements by the EMS/Paramedic.
We could not wait to find out under oath how this EMS/Paramedic had the expert knowledge of recognizing “dirt weed”.
When the ARIDE Officer asked the victim of the accident (our client) if she was okay to do Standard Field Sobriety Tests (SFST), our client indicated she felt “Fuzzy” from the accident. The ARIDE Officer asked the EMS/Paramedic if he thought our client could perform the SFST. The EMS/Paramedic looked at the totaled vehicle and stated there is not that much damage to the vehicle and I don’t see why she couldn’t take the tests (despite never conducting an examination of our client.
The ARIDE officer then went into the ambulance where our client was seated and being examined by an EMT. The officer was told that he wasn’t done yet, but if he needed to talk to her – he could. The ARIDE officer then told my client she had been cleared to do SFST.
Fail and Arrest (Standard Operating Procedure)
The ARIDE officer then had my client perform SFST and claimed she failed because she was “under the influence of marijuana”. None of the SFST have ever been established to show impairment for marijuana or cannabis). The ARIDE Officer also failed miserably at following the proper protocols in administering the SFST test.
We were ready to address both of these issues on cross examination.
My client was subsequently arrested, consented to a blood draw, and was taken back to the jail. Upon arrival at the jail, she was then tested by the Drug Recognition Evaluator (DRE). That officer concluded my client was impaired by Central Nervous System Depressant CSN, contrary to the ARIDE officer.
We were additionally prepared and looking forward to addressing this issue on cross examination
Back to the Trial
Today… we picked a jury, and prior to the opening statements and some issues about discovery and brady violations, the state decided to Nolle Pros (dismiss all the driving charges) in exchange for a civil infraction plea of responsible… and of course a fine.
What Is a Brady Violation?
The Brady Rule, named after a 1963 case decided by the United States Supreme Court, governs discovery issues in criminal trials. Under its terms, the prosecution must turn over all exculpatory evidence to the defense; this is evidence that is favorable to the defendant and, therefore, might exonerate him, or impeach the credibility of a state witness. The evidence must be material to the case, meaning that if it were divulged prior to or during the trial, it would affect the verdict.
But what about the dirt weed?
Although this case is considered a victory. We still feel like we were shorted somewhat on finding out how the declaration of “Dirt Weed” lead in part to the arrest. We wanted to hear the explanation… we wanted to know how it was determined… that she was smoking “Dirt Weed”.
That moment never came because the allegations of the alleged crime were Nolle Pros.
A Strong Client is the Key to a Successful Outcome
Today… a victory for a client and another revealing look into the justice system.
I want to commend my client for having the courage to stand tall and fight for her rights. She is also did not give in to the unbearable stress and pressure she has had to endure the last 2 years.
Many people do not fight back, or challenge these types of allegations. Despite the seriousness of the accident, she had confidence in the case and our defense that an accident does not automatically equate to the crime of driving under the influence of marihuana. Because sometime an accident is just and accident.
Komorn Law PLLC
I want to thank the entire team at Komorn Law PLLC for the effort that was necessary to accomplish this outcome. Together we saved someone from a state manufactured conviction.
If you or someone you know needs an attorney who is equally driven to win as his clients. There’s just one name they need know… Attorney Michael Komorn of Komorn Law.
I also want to thank all the folks at Komorn Law PLLC for all their efforts in achieving this result. Attorney Alyssa McCormick, Attorney Allen Peisner, Attorney Jeff Frazier, Steve Miller, Jen St. Amant. It was truly a team effort.
I also want to thank Attorneys David Rudoi and Bernie Joucuns for their efforts in assisting in prepping for trial.
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.
For the last 13 years of the Michigan Medical Marijuana Act (“MMMA”), patients on probation have asked that simple question. Relying on the simple plain language in the act that protects a medical marijuana patient from denial of any right or privilege (probation), as well as protection from penalty in ANY MANNER, as long as they followed the medical marijuana laws and rules.
Until now, it was up to each individual courtroom to decide the patients fate. The judges, prosecutors, probation officers and drug testing labs decided which medicines a probationer could use. In some cities and townships medical marijuana was allowed, but in others, patients had to fight. Some were successful, most were banned from using their doctor recommended medicine, and would likely face serious penalties and jail time if they broke those probation rules. Thousands of patients were sent back to jail because of testing “dirty.”
As president of the Michigan Medical Marijuana Association, Michael Komorn has fought for every patient on this issue in courtrooms across the state, by trying to secure their rights under the law to not be penalized for the legal use of medical marijuana. Komorn has fought for patients on bond to be able to use medical marijuana as a bond condition. With over 300,000 registered medical marijuana patients in Michigan, thousands of patients had their bond revoked due to choosing their medicine, as recommended by a doctor.
The justice system has crushed medical marijuana caregivers and patients for more than a decade on many issues. Usually with the excuse that “marijuana is illegal” or “a trial court has considerable discretion to set conditions of probation.”
Four years ago, this was the excuse in People v Magyari that the Michigan Court of Appeals used to deny a registered medical marijuana patient from administering medical marijuana for his condition. The Court stated in its opinion:
“Defendant has failed to offer any persuasive argument for the proposition that the MMMA prohibits a trial court from ever imposing a probationary condition barring the use of medical marijuana. The challenged probationary condition is reasonably related to the goal of defendant’s rehabilitation, including preventing future criminality, as well as protecting the public. Affirmed.”
Until February 2021, when People v Thue was published, that was the law of the land.
Today, attorneys Michael Komorn and Alyssa McCormick, of Komorn Law, provided the “persuasive argument” for medical marijuana on probation. That persuasive argument boiled down to the plain language of the law that so many courts have ignored and disparaged for the last 13 years. The plain language of the law in section 4, for the right to use medical marijuana, has not changed, so why did it take this long to have a correct ruling? No one knows.
The Court ruled:
“The Michigan Probation Act permits a court to impose multiple conditions of probation on a defendant under MCL 771.3. However, provisions of the probation act that are inconsistent with the MMMA do not apply to the medical use of marijuana.”
The Court went on to state:
“We also conclude that the revocation of probation upon the MMMA-compliant use of marijuana constitutes a “penalty” under MCL 333.26424(a) of the MMMA.”
Most times, courts will not rule on both of these issues. Due to the “first out” rule, the appeals courts usually decline to rule on further issues such as penalties.
One of the more incredible rulings in this opinion was on the issue of mootness. Because of the details of the case, Komorns client’s probation ended before the appeal could be heard. The court in its wisdom understood that this issue was of such public importance and issued an opinion even though the client no longer had standing.
The only other medical marijuana case Komorn can remember that issued a ruling where the defendant did not have standing was when the Michigan Court of Appeals issued an opinion against a patient for taking his plants out of his enclosed locked facility for spraying with pesticide. He lacked standing because he died before the court could issue its opinion. The court issued its opinion anyway, post-mortem. Issues of standing and mootness are the FIRST requirements of having a court review an issue.
Having a court rule favorably while overlooking standing and mootness is quite extraordinary. One can only chalk it up to experience and strategy, or as some call it, “lawyer magic.”
Some judges have called the MMMA the worst law they’ve ever seen.
Courts have ruled against patients in all kinds of cases because they personally feel that marijuana is bad.
The Michigan Court of Appeals in Magyari even claimed that marijuana was addictive! “Further, the trial court found that defendant would simply be replacing one addictive drug—alcohol, for another—marijuana.”
The courts have been wildly inconsistent with opinions, rulings, reversals and remands on the medical marijuana law.
Some predictions are that this ruling will also apply to patients on bond or parolees. While this might be true, we have seen most recently that the Michigan Supreme Court has upended even the simplest of understandings of the plain language of the MMMA, specifically in the case of Deruiter v Byron Township. In Deruiter, the Court unanimously said that a township could craft an ordinance that added requirements to the MMMA. This flies in the face of earlier rulings from the MSC where the justices said in oral arguments that you cannot add surplusage or make any words nugatory within the act.
Said another way, because of the ruling in Deruiter, what would stop a locality from drafting an ordinance with additional requirements to administer medical marijuana while on probation?
“As in Qualls and Miller, the local ordinance goes further in its regulation but not in a way that is counter to the MMMA’s conditional allowance on the medical use of marijuana. We therefore hold that the MMMA does not nullify a municipality’s inherent authority to regulate land use under the Michigan Zoning Enabling Act (MZEA), MCL 125.3101 et seq.,13 so long as the municipality does not prohibit or penalize all medical marijuana cultivation, like the city of Wyoming’s zoning ordinance did in Ter Beek II, and so long as the municipality does not impose regulations that are “unreasonable and inconsistent with regulations established by state law.” Qualls, 434 Mich at 363.”
It is also suggested that because the MMMA and the 2018 Michigan Regulation and Taxation of Marijuana (MRTMA) use similar language that this ruling could be used to have the same protective effects of all adults 21 and over to use marijuana while on probation.
Sec. 4. (a) A qualifying patient … is not subject to … penalty in any manner, or denied any right or privilege… for the medical use of marihuana in accordance with this act
1. Notwithstanding any other law or provision of this act … the following acts by a person 21 years of age or older are … not grounds for … penalty in any manner … and are not grounds to deny any other right or privilege …
Both laws have sections stating that all other laws do not apply to them. The intent of both laws is the same– to give people the right to have medical marijuana and legal marijuana. Under no other circumstances can an individual be denied access to marijuana, as long as they follow the MMMA and or MRTMA.
HANDS OFF OUR MARIJUANA ALREADY. THE PEOPLE HAVE SPOKEN.
Strangely, there is an unattributed quote, possibly from one of the judges in the case which addresses this in the opinion:
“We note, however, that the MMMA is inapplicable to the recreational use of marijuana, and thus, a trial court may still impose probation conditions related to the recreational use of marijuana and revoke probation for such recreational use, as well as for marijuana use in violation of the MMMA.”
While the opinion did not directly address the MRTMA (notwithstanding the weird uncited and dicta quotation at the bottom of page 6-7 of the slip opinion), it seems that the statutory language in MCL 333.27955(1) and MCL 333.27954(5) would compel a similar outcome with respect to adult-use marijuana.
The Thue opinion relies on the preemption language in MCL 333.26427(e) and finds that revocation of probation is a “penalty” in violation of Section 4 of the MMMA.
Similarly, Section 5(1) of the MRTMA provides, “Notwithstanding any other law or provision of this act, and except as otherwise provided in section 4 of this act, the following acts by a person 21 years of age or older are not unlawful, are not an offense, are not grounds for seizing or forfeiting property, are not grounds for arrest, prosecution, or penalty in any manner, are not grounds for search or inspection, and are not grounds to deny any other right or privilege . . .”
While Section 4(5) of the MRTMA provides, “All other laws inconsistent with this act do not apply to conduct that is permitted by this act.”
It would seem that the takeaway of Thue opinion is that revocation of probation is a “penalty” and the MRTMA prohibits the imposition of a penalty for conduct that is permitted by the MRTMA, it would stand to logically follow that the MRTMA similarly protects those who are age 21+ from having their probation revoked for engaging in conduct that is protected by the MRTMA.
An issue to be fought in court in the future.
Don’t face the system alone– Hire The Best If you want your right to use marijuana while on bond or probation Call Komorn Law PLLC248-357-2550
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.
On Oct. 12, Whitmer signed House Bills 4980-4985 and 5120 into law to expand and simplify the state’s criminal record expungement process. The bills will take effect April, 11, 2021.
The new law will expand the number and types of convictions that qualify for expungement.
Michigan is also working to establish a system to automatically expunge eligible felonies and misdemeanors after certain periods of time, but that still has some time before becoming active.
What’s expungement?
Expungement seals criminal convictions from the general public, including employers and landlords. Once a record is expunged, people applying for employment, housing and financial aid can truthfully state that the arrest and conviction never occurred.
Of course… Law enforcement, courts and agencies such as the Michigan Department of Corrections retain access to expunged records.
Changes to expungement by application include:
Eligible offenses: Expanding eligibility to up to three felonies and an unlimited number of misdemeanors, with certain conditions on the types of offenses that qualify. No more than two assaultive crimes can be expunged, and no more than one felony conviction for the same offense if the offense is punishable by more than 10 years imprisonment.
Waiting period: Adjusting the waiting period to apply after a person’s monitoring by the justice system ends (i.e. sentencing, probation, release from incarceration, parole — whichever occurred last) if they remain conviction-free. The waiting period will be three years for misdemeanors, five years for serious misdemeanors or one felony, and seven years for multiple felonies.
Traffic offenses: Expanding eligibility to most traffic offenses. This excludes convictions for driving while intoxicated, traffic offenses that cause injury or death, and Commercial Driver License violations.
Marijuana misdemeanors: Creating a streamlined process to apply for expungement of misdemeanor marijuana possession and use that would not have been considered crimes after recreational marijuana was legalized in Michigan. Judges must grant expungements if prosecutors don’t object.
Multiple offenses in one day: One bad day…Treating multiple felonies or misdemeanors arising from the same 24-hour period as one conviction for the purposes of expungement. None of the offenses can be assaultive, involve the use or possession of a dangerous weapon, or carry a maximum penalty of 10 or more years in prison.
Not eligible for expungement
Felonies that carry a maximum punishment of life in prison, attempt to commit a felony for which the maximum punishment is life, felony domestic violence (if the person had a previous domestic violence misdemeanor), child abuse, most criminal sexual conduct offenses, DUIs, and traffic offenses causing injury or death.
What’s eligible when automatic expungement starts?
Up to two felonies and four misdemeanors will be automatically cleared. There cannot be any new convictions during the waiting period.
Misdemeanors will be expunged seven years after sentencing.
Felonies will be cleared 10 years after sentencing or the person’s release from incarceration, whichever comes last.
The following will not be eligible for automatic expungement: assaultive crimes, serious misdemeanors, “crimes of dishonesty” (such as forgery and counterfeiting), offenses punishable by 10 or more years in prison, and crimes that involve a minor, a vulnerable adult, human trafficking, injury or serious impairment, and death.
How do I apply for expungement?
An application form from the State Court Administrative Office lists step-by-step instructions. The form can be found online by searching Google for “application to set aside conviction MC 227 form.” For expungement under the laws taking effect this spring, the State Court Administrative Office is working on an updated application form that should be available on its website by mid-March.
Generally, the process involves ordering a certified record of convictions from the clerk of the court where the convictions occurred, getting fingerprinted, getting the application notarized, filing the application with the court and preparing for a hearing in front of a judge.
Another new law will ensure that anyone under 18 years old will be treated as a minor in juvenile court and receive the rehabilitation services that are offered in the juvenile justice system to reduce recidivism, such as those practices outlined in the Youth Rehabilitation Services Act.
As many battles for marijuana patients, caregivers and business clients represented by the Komorn Law Firm loom in the background – a decision has been made to set the tone for future cases involving those on probation.
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.
Presidential memoranda are similar to executive orders, but they are neither numbered nor have the same publication requirements. The Office of Management and Budget is also not required to issue a budgetary impact statement on the subject of the memoranda.[3]
The State of Michigan is working around the clock to test and treat COVID-19 patients. Below is the most recent data healthcare experts across the state have compiled. It is updated Monday – Saturday.
Latest Data Total Confirmed Cases – 569,417
Total COVID-19 Deaths – 14,905 Sunday & Monday
Daily Confirmed Cases – 1,769 *Sunday & Monday
Daily COVID-19 Deaths – 11
*Note on cases (02/08/21): Today’s daily case count represents new referrals of confirmed cases to the MDSS since Saturday, February 6th. Over the two days, Sunday and Monday, the average number of new confirmed cases is ~884 per day.
CRIMINAL DEFENSE For over 27 years Komorn Law has been a trusted adviser providing results-focused legal counsel to its clients in all areas of criminal defense. From the first encounter with law enforcement to districts courts all the way to the supreme court. We are advocates of our clients’ rights in cases involving marijuana, drugged driving, DUI, criminal charges, as well as many other case types.
CANNABIS BUSINESS LICENSING AND LEGAL COUNSEL If you are starting or have an established Cannabis Business in Michigan. Komorn Law has the legal team you will need. With a 100% success rate in licensing our firm offers legal counsel services with connections and assets in the world’s leading and most refined cannabis industry network.
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.
