Oct 31, 2023 | Blog, Victories Project
The fourth Amendment lives to see another day.
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.
https://komornlaw.com/3000-cases-may-have-been-impacted-by-inaccuracy-of-michigan-state-police/
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.
When You Stand Up For Your Rights
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.
Michigan State Police Legal Updates
MSP Legal Update No. 153 (01/2023)
- Search & Seizure: The smell of marihuana, standing alone, no longer constitutes probable cause to search for that substance
- Vehicle Code: Violation for impeding traffic requires evidence the accused’s conduct actually affected the normal flow of traffic.
Legal Update No. 153 (01/2023)
MSP Legal Update No. 150 (01/2022)
- 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.
Legal Update No. 150 (01/2022)
Legal Update No. 148 (09/2021)
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.
Legal Update No. 148 (09/2021)
Legal Update No. 147 (03/2021)
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.
Legal Update No. 147 (03/2021)
Apr 18, 2023 | Recent Victories, Victories Project
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.
If you or someone you know has been accused of a crime or DUI.
Call Komorn Law - Call Now 248-357-2550
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Jul 9, 2021 | Blog, News, Recent Victories
Summary: Komorn Law has won another case in Circuit Court. The Judge suppressed the 26 pounds of marijuana of evidence seized following a traffic stop and then lead to the dismissal of the case. The police conducted an unlawful inventory search, contrary to the police department’s established procedures.
Michael A. Komorn and Alyssa L. McCormick won suppression of evidence in the 56A Judicial District Court on an inventory search / People v. Toohey (438 Mich. 265; 475 N.W. 2d 16 (1991)) issue.
Circuit Court Opinion of the Month: Unlawful Inventory Search The Honorable Julie A. O’Neill, of the 56A Judicial District Court, in May suppressed evidence seized following a traffic stop and then dismissed the case.
Judge O’Neill found that police conducted an unlawful inventory search, contrary to the police department’s established procedures, and, pursuant to People v. Toohey, 438 Mich. 265; 475 N.W.2d 16 (1991), the improperly seized evidence had to be suppressed.
Once the evidence was suppressed, there was no evidence to support bindover to circuit court, so the case was dismissed. The defendant was stopped by Potterville Police Chief Barry for speeding and improper use of a turn signal. The defendant did not have on his person his driver’s license, but subsequent investigation revealed that the defendant was properly licensed and had no outstanding warrants.
Chief Barry, upon approaching the pickup truck, saw a black plastic trash bag on the passenger seat; the Chief, who later testified he could smell marijuana, asked the driver multiple times about the contents of the bag; the defendant replied that it was trash.
The defendant also replied that he had some marijuana wax in his possession. Backup arrived, and the defendant was told to exit the vehicle; he complied and then locked it. He consented to a search of his person but declined a request by police to search the truck.
The driver was handcuffed and placed into the Chief’s vehicle. Officers looked through the windows of the pickup and noticed another plastic trash bag in the behind the seats, as well as a smaller plastic bag with a leafy, green substance visible.
The Chief called a prosecutor, who advised that an arrest could be made for the misdemeanor of not having a license in his possession. The driver was arrested. Later, 6 Criminal Defense Newsletter June 2021 during a search of the pickup truck, just over 26 pounds of marijuana was found.
The defendant challenged the arrest as illegal because, he argued, he constructively possessed his license. His wife was able to text a photo of the license, which Chief Barry was able to observe.
Judge O’Neill rejected that argument and held that the statute, M.C.L. 257.311, expressly requires a driver to have an operator’s license “in his or her immediate possession at all times.”
The defendant also challenged the inventory search as illegal, and Judge O’Neill, as noted above, agreed. The Toohey case requires that inventory searches be conducted “in accordance with established departmental procedures … and must Reports and Studies not be used as a pretext for criminal investigation.”
Judge O’Neill rejected the prosecution arguments, which included that police had probable cause to search due to either plain-view or the automobile exception.
The defendant was represented by Michael A. Komorn; the opinion in People v. Michael Anthony Gonzalez, 56A Judicial District Court No. 20-111-FY.
Mar 22, 2021 | Blog, Recent Victories
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.
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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.
Jul 24, 2020 | Blog
This registered nurse stood to lose their livelihood or were going to be quietly forced into rehabilitation.
Who Knew?
Who knew that LARA was punishing Registered Nurses merely because they are a medical cannabis patient?
Who knew that the same government agency (LARA) that regulates the licensing of the Physician (who recommended the use of medical cannabis,) and also regulates the licensing of Registered Nurses, punish those same Licensed Registered Nurses (by suspending and or attempting to revoke their Nursing Licenses) merely for following the medical advice and proscribed medical treatments made to them by their State Licensed Physician?
Who knew that “Cannabis Dependence” with “Cannabis use disorder,” “Mild” was a medical diagnosis?
Who knew that this so called disorder was categorized as “Mild” and or “Spicy”?
Who knew that the States protocol for this “diagnosis” , mandates that the registered nurse admit to this disorder, sign a contract to complete an unknown length and unknown terms of substance abuse treatment, as a condition of retaining that nursing license?
Who knew that this could be done without any evidence regarding the registered nurses performance at work?
Who knew this could be done with evidence that the registered nurses performance at work was impeccable?
Who knew that the Physicians contracted with the State (Health Professional Recovery Program -HPRP), and acting on behalf of LARA ( who diagnose medical cannabis patients with “Cannabis Dependence” with “Cannabis use disorder,” “Mild” ) and those that regulate nursing licenses don’t distinguish between active delta-9 THC, and any other cannabinoids, including the metabolite of THC, 11 Carboxy THC (which is not a controlled substance)?
See an important Michigan Supreme Court Opinion - People vs Feezel
Enter Komorn Law
All of the above are real, and circumstances that we encountered in this more than a year long battle, with the Michigan licensing agency. Because of my client's relentless and passionate pursuit for justice in their case. This Licensed Nurse is no longer left .
Almost from day one, we were ready and looking forward to litigating this matter. My client, refused to settle, and there was no reason that they should.
Komorn Law PLLC, is proud to announce another huge win and a long hard fought victory.
Victory
This past week we received the final order dismissing the complaint, and re-activating their nursing license.
In light of the MMMA, the MMFLA and the MRTMA, this issue like many others remain overlooked, as unfinished business that the State of Michigan has failed to address.
For a full perspective of this issue, see the link to the complaint filed in Federal Court, relating to HPRP. HPRP-Class-Action-Complaint. Additional links on this topic. ( that nursing power point I sent earlier)
Huge Shout out to everyone at Komorn Law PLLC, specifically Ally McCormick, Steve Miller, Jenifer St. Amant, Jeff Frazier and Dan, nice job team!!
Why Are You Here?
Either you're here just out of interest or you are searching for an attorney. If you need a law firm to protect and fight for your rights call our office 248-357-2550 or visit KomornLaw.com and do your research.
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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.
