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.
Medical marijuana patients have had their doctor recommended use of cannabis while on probation in restricted for a long time.
Lead trial attorney and advocate for marijuana law reform Michael Komorn and his dedicated team of attorneys (specifically Ally McCormick) secured a victory in the Michigan Court of Appeals for Medical Marijuana Patients
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.
Here are the key factors from the ruling as to why you should have the protections of being a medical marijuana patient.
Case background
The case involved 40-year-old Michael Thue of Traverse City, who pleaded guilty in 2019 to a road-rage incident of assault and battery, then was sentenced to a year on probation — but without permission to use medical marijuana.
Komorn Law Gets Involved
Thue, being a state registered medical marijuana patient retained Michael Komorn and the legal team at Komorn Law to argue for the right to use doctor recommended medical marijuana.
Note: Komorn Law was not involved in the original case.
The Prosecution Argued
“The prosecution argued that the district court had the ability to place restrictions on a defendant’s medication. The district court denied defendant’s motion to modify the terms of his probation, holding that it was bound by the “Circuit Court’s decision on this issue,”
The Sentence of Probation
“A sentence of probation is an alternative to confining a defendant in jail or prison and is granted as a matter of grace in lieu of incarceration.”
“Because probation is a privilege, the revocation of probation is a penalty or the denial of a privilege. Under MCL 333.26424(a) a person is protected from penalty in any manner, or denial of any right or privilege, for the lawful use of medical marijuana.”
“Therefore, a court cannot revoke probation upon the use of medical marijuana that otherwise complies with the terms of the MMMA.”
“a statute or provision of a statute that conflicts with a defendant’s right to MMMA-compliant use of marijuana is preempted or superseded by the MMMA”
“protection from arrest, prosecution, or penalty of any kind”.
“In other words, a condition of probation prohibiting the use of medical marijuana that is otherwise used in accordance with the MMMA is directly in conflict with the MMMA and is impermissible.”
“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. The MMMA is substantially similar to the medical marijuana acts adopted in other states, including those discussed here, and immunizes persons from being subject to a penalty of any kind for the lawful use of medical marijuana.”
“We conclude that provisions of the Michigan Probation Act that allow a court to prohibit a probationer’s MMMA-compliant use of marijuana impermissibly conflict with MCL 333.26427(a) and (e) of the MMMA and are unenforceable. Further, the revocation of probation upon the MMMA-compliant use of marijuana constitutes a “penalty” in violation of MCL 333.26424(a) of the MMMA.”
Attorney Michael Komorn
From MLive
“This opinion says the law is the law,” said Komorn, who represented the appellant in the case, “and we’re going to make the ruling that the Medical Marijuana Act and the card associated with the patient protect them from … penalty of any kind.”
It’s taken 13 years, but Michigan courts are finally fully recognizing the rights instilled by the 2008 voter-passed Medical Marijuana Act, said Farmington Hills-based defense attorney.
In Komorn’s opinion, although the ruling doesn’t address the issue, the precedent should also apply to parolees or defendants on bond with release conditions that prohibit legal medical marijuana use.
From The Detroit Free Press
That policy has become widely used in Michigan courts, applied not only when judges set conditions for probation but also when they release defendants on bond prior to trial, and when offenders are paroled. Komorn said he believed that the decision should apply to all of those situations, although the ruling doesn’t address parolees or defendants out on bond. The possession of a state registry card to use marijuana legally and for medical purposes “is exactly what this law is intended to protect, but the irony is that it’s taken this long to get recognition of this fundamental principle,” he said.
Komorn’s client, Thue, “had an accident as a kid (and) has a rod in his arm,” and to alleviate pain he uses medical marijuana instead of pharmaceutical drugs such as opioids, Kormorn said.
“He’s convinced that he’s better off with medical cannabis,” he said. Besides arguing the case in his brief to the state Court of Appeals, Komorn fought for Thue in a circuit court hearing in Grand Traverse County. In that hearing, he recalled how a prosecutor had claimed that allowing Thue to use medical marijuana was tantamount to letting people drink alcohol while on probation for drunken driving. Komorn said he shot back: “Really? Since when has there been a medical alcohol law?”
“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.”
So having a medical marijuana patient card offers certain protections verses using cannabis recreationally. Especially when they go after your blood… to be continued.
Contact Us 248-357-2550 to notify and defend your right to utilize your doctor recommended Medical Marijuana. It will be less costly and easier than doing it from jail.
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.
(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.
Feb 28, 2019 – Charges have been dropped against a local man accused of illegally growing large quantities of marijuana.
45-year-old Anthony Portelli of Whitmore Lake, along with two other men, was charged almost four years ago with various counts of delivering and manufacturing marijuana. The case against the men has spanned years, with motions alleging various medical marijuana defenses being held in abeyance.
At a status conference Thursday, prosecutors agreed to dismiss the case against Portelli and a motion to do so was granted by a Livingston County Circuit Court judge. In an email to WHMI Prosecutor Bill Vailliencourt stated, “In light of the legalization of recreational marijuana in Michigan, we determined that it was no longer an appropriate use of resources to proceed.”
The charges against Portelli, Jeffrey Mote of South Lyon and Richard Lee Riley of Brighton were filed in 2015, following a police raid in 2013 at an alleged marijuana dispensary in Brighton Township and two other homes. Authorities had claimed that Portelli managed the dispensary, Riley grew the marijuana plants and Mote owned the homes where they were being grown.
The case against Mote was dismissed in 2016 due to insufficient evidence, while Riley was sentenced that same year to six months of probation after pleading guilty to maintaining a drug house in exchange for the original charges being dismissed. (DK)
” Lieutenant, this lawyer is a pain in the ass, I can’t stand him, I really hate him”
This was my client’s observation of the prosecutor after exiting the conference room she and I had been in for over an hour discussing and negotiating a possible resolution of his 2 count felony, 1 misdemeanor case.
These were the words my client told me he heard coming out of the prosecutor’s mouth as she stood in the hallway asking, begging the officer in charge to approve of or sign off on the demands I had made during our negotiations.
In the moments before this conversation took place I had made it clear to the prosecutor what I thought of the case against my client.
As it goes in many criminal cases the facts of what actually transpired were in dispute.
The criminal case involving under cover and vice officers, no video, audio or even written recordings are made during the investigation.
These type of “typical” investigations result in cases that revolve around the credibility of the officers. When a prosecutor has a police witness who will assert a fact in a case it is considered the gospel. It is believed that if the officer testified to that fact, independent of any counter facts or versions that differ, it will be believed.
Often the prosecutor in these situations will say during Pre-trial discussions sometime with the officer sitting in the same room, ” counsel are you saying the officer isn’t being honest?
It is these scenarios that we are grateful that we have jury trials so that peers within the community can decide who is telling the truth. But getting the prosecutor to believe the version of the facts that are told by the defendant and disregard the police officer version never happens. This case was a case filled with complete adverse and disputed facts.
Prior to the court proceedings we had done an extensive independent investigation and had uncovered witnesses that observed or were aware of the events alleged in the police reports. I realized these unknowns to the police witness observations were in conflict with the gospel of the police officer witness.
These scenarios usually lead to trials.
These scenarios are why we have trials.
These scenarios never result in the prosecutor abandoning their police officer witness and taking the side of the defendants version of the facts.
Prosecutors never agree with defense attorneys that their police officers versions are in error or untrue.
My strategy was let the prosecutor know that she was going to have to accept my clients version or we would be going to trial.
The prosecutor was obviously unaware that her conversation and advocacy to do what I wanted on the phone was within earshot of my client. During these moments I remained in the conference room and while I was aware she was calling the officer in charge I had no idea and could not hear what her she was actually saying to the officer in charge.
Shortly thereafter the prosecutor came back into the room to explain that they had capitulated and agreed to dismiss all felony charges in exchange for a no contest plea to an innocuous misdemeanor. As I was relaying this information to my client he explained what he had overheard the prosecutor saying about me to the officer in charge.
Michael, I was wondering what was going on in the conference room because when the prosecutor came out of the room and got on the phone she keep telling the person she was talking to how much she hated you and what a pain in the ass you were.
But wait it, the observations in the theatre of so called justice gets even better.
After we secured the charge reduction, dismissal of all felonies and misdemeanors and a no contest plea to the innocuous misdemeanor we still needed the pursued the judge to a sentence that also included everything that we wanted or that was acceptable.
It was late in the morning and most of the cases had cleared out and been resolved. The court room had become empty when me and my client entered the Court with my intentions to discuss sentencing with the Judge.
As it goes the judge invited me ( the prosecutor had waived her presence for these discussions) into her chambers which were immediately behind the Judges Bench. and unbeknownst to me the Judges Chambers also are within “yelling” earshot of anyone who was or remained in the Courtroom.
This scenario and positioning I am describing was also observed by client who also watched me enter the Court room and then leave with the Judge into her adjoining chambers.
While I would like to describe what took place over the next 10 minutes with the Judge in her chambers as a healthy academic debate about current morals and virtues what my client heard was loud voices and yelling.
Of course my client couldn’t see or hear the softer spoken words that the judge and I agreed upon or the friendly handshake she and I had after our academic ” discussion” about morality.
Which is why when I exited the Judges chambers to return to my clients side I could tell he was scared out of his mind.
What happened in there…? my client asked.
I said the judge and I had a healthy debate and she is going do what we want at sentencing.
Really, said my client, because from where I was sitting it sounded like the judge hated you. I smiled and said she is going to do what we want for sentencing.
We left the court room, and went outside into the parking lot and walked together to our cars. As the morning sun was turning to midday my client turned to me thanking me for the outcome and reflected upon his observations.
Michael, everyone in that building seemed to hate your guts. I heard the prosecutor saying how much she disliked you and then it sounded like the Judge was going to lock you up. Despite that he said we got everything that we wanted and I couldn’t be happier.
I realized at this time the perspective by which he had observed the events from his day in Court.
Everyone hated his lawyer, me. Yelling and disdain are the emotions and reactions that he had observed. He described his emotions as total fear when he heard prosecutor talk ill of me and the judge screaming at me from her chambers.
Yet as we stood in the parking lot and his case was resolved he explained his joy and how happy he was with the way things turned out.
There is a joke somewhere that begins with lawyers have thick skin or when can you tell a lawyer is offended … I am not sure what the punch line is but I do know that my client’s reflection on the events of the day and how the hatred and disdain for me brought about the favorable resolution of his case.
I was emotionally devoid of any care of concern of who liked me or hated me.
Being a lawyer is not a popularity contest. It is a commitment to get the best results possible for my client.
Lawyers strategize and the negotiation process can be a disaster if a good strategy is not employed for the process. Sometime the discussions are friendly sometimes they are not. But this experience may be the first where the disdain for me and my involvement in the case was the catalyst to our favorable resolution.
I could be wrong but I really don’t think that the prosecutor hates me, instead she knows that if we are going to litigate the case I am going to make her life miserable by litigating, advocating and fighting the case till the end.
This is not hate in my eyes but respect. Likewise much of the yelling from the judge’s chambers actually was my voice as I encouraged the Judge to see things my way and not her silencing me or yelling over me.
In other words the loud academic debate was meaningful and needed to take place.
On the other hand maybe they do all hate me and maybe my skin is thick, and if that is the case then let their hatred be revered.
