Medical Marijuana Distribution Law Suit

An East-side lawyer that owns a medical marijuana distribution or transfer center -the lawyer refuses to call his business a dispensary- filed a multi-million dollar lawsuit in Macomb County Circuit Court on Monday. The complaint alleges the lawyer plaintiff and his partner distribute medical marijuana to their patients in accord with the Michigan Medical Marijuana Act yet, the City of Warren, its mayor and police chief have developed an unwritten policy to shut the business down.

Traction for such a suit is possible due to the vague language of the Medical Marijuana Act. Are dispensaries legal; can pot growers earn a profit from their sales? The MMA is silent on these issues.

Michigan Attorney General Bill Schuette has declared marijuana dispensaries illegal. Nevertheless, such businesses continue to operate in counties where the prosecutor has, "looked the other way", such as Washtenaw and Wayne.

Macomb, however, is not one of those counties. Law enforcement in Warren, Mt. Clemens, and Shelby Township have cracked-down on establishments believed to traffic in medical marijuana.

Through his lawsuit, the lawyer is fighting back. The complaint combines a few dozen legal care providers and alleges counts of illegal state action, unconstitutional searches, and damages in the multi-millions.

Most of the litigation involving the MMA has taken the form of criminal appeals. This law suit is different as it seeks money damages and preempts criminal charges.

Stay tuned on this one as we will monitor and report back to our readers.

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Judge's Aggressive Questioning Results in New Trial

Jackson Circuit Judge John McBain

A defendant in Jackson County was tried for murder in the 2010 death of his 3-month old son. The prosecutor's theory was that the father caused his infant son's death by shaking him or throwing him against a wall.

During the murder trial, the trial judge in People v Stevens questioned the accused and his expert witness in a highly demeaning and aggressive manner. Although Stevens was acquitted of first degree murder, he was convicted of the lesser charge of second degree murder.

His conviction was affirmed by the Court of Appeals. The Michigan Supreme Court, however, held that the trial judge's manner and style of questioning the defendant was so aggressive as to suggest partiality and guilt on behalf of the accused. In reversing Stevens' conviction and remanding the case to a different trial judge last month, Justice Bernstein held that the trial judge's conduct deprived the defendant of a fair trial when he pierced the veil of judicial impartiality.

As you can imagine, this was a very fact-specific case with the following characteristics being displayed by the trial judge during the Stevens trial:

• displaying disbelief, even unintentionally, of a fact or expert witness;
• permitting a judge's own views to become known or implied to the jury;
• exhibiting an unfavorable demeanor toward the accused or one of his witnesses;
• asking a witness questions that are hostile, demeaning, suggestive or argumentative;

While taken individually, no one of these judicial missteps may cause an otherwise fair trial to become constitutionally defective. Taken as a whole, however, the Supreme Court was convinced that the judge's conduct in Stevens' trial deprived him of his right under the Sixth Amendment to the U.S. Constitution to a fair trial by jury.

So now, Stevens gets another bite at the apple before a different trial judge.

For his part, Jackson County Circuit Judge John G. McBain has gone to the press complaining that the Supreme Court's ruling in his case will have a chilling effect on trial judges that are permitted to question witnesses under our relatively new rules of trial procedure. Judge McBain believes his questions were appropriate because neither the prosecutor nor defense counsel asked the right questions.

In our view, given the liberty interests at stake in any felony jury trial, circuit court judges must take the utmost care to oversee fair and impartial trial proceedings. Even the slightest demonstration of annoyance can suggest partiality to a party; this is often fatal to the accused who is cloaked with the presumption of innocence until proven guilty.

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Sentencing Guidelines Abandoned as Unconstitutional

Lockridge with Attorney Jerry Sabbota

Long-challenged in other states and repeatedly addressed at the SCOTUS, the Michigan Supreme Court finally abandoned the state legislature's attempt at a mandatory indeterminate sentencing scheme in favor of giving sentencing judges more powers.

The case that got the ball rolling back in 2013 was a homicide case -of course- from right here in Oakland County. In People v Lockridge, defendant was jury convicted of the involuntary manslaughter of his wife and faced sentencing guidelines of 43 to 86 months.

Sentencing Judge Nanci Grant found "substantial and compelling" reasons to deviate from the guidelines: Lockridge killed his wife in front of their 3 young children, leaving her corpse among them; he had a probation violation, and was involved in at least one other incident of domestic violence. Judge Grant thus sentenced Lockridge to 96-months to 15-years; on appeal, both the scoring of defendant's original guidelines as well as Judge Grant's deviation therefrom were challenged.

The Court of Appeals affirmed the judgment of sentence, but the Michigan Supreme Court agreed to take a look. While Lockridge's appeals were pending, an interesting thing happened: the SCOTUS decided Alleyne v United States which held that a judgment of sentence could not be based on a fact that: a) defendant did not admit or, b) was determined to exist beyond a reasonable doubt by a jury.

In last week's opinion, the Supreme Court, addressing defendant's Alleyne challenge to his sentence, held that Michigan's mandatory sentencing guidelines were unconstitutional based on precedent from the United States Supreme Court. Our High Court ruled that so long as Michigan's sentencing process requires trial judges to make findings of fact to which a defendant does not confess or that a jury did not determine beyond a reasonable doubt, that process was unconstitutional.

Scrapping the sentencing guidelines, the Supreme Court further mandated that sentencing judges must now treat the sentencing guidelines as "advisory only". The basis of the abandonment of the sentencing guidelines is that it forces judges to utilize facts in fashioning a sentence that were not in evidence at a trial, or admitted by a defendant, all in violation of the defendant's Sixth Amendment right to a trial by jury.

Conservative Justices Stephen Markman and Brian Zahra dissented, stating that whenever a defendant is jury convicted, that defendant is subject to serving the maximum statutory sentence therefore, the Sixth Amendment's jury trial requirement is not offended. As criminal defense lawyers, however, we rarely conceive a criminal charge in terms of the statutory maximum sentence; to do so puts form over substance and does not take into account the reality of a contemporary sentencing hearing.

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Teenage Sex Offender Sentenced Harshly

Convicted sex-offender
Zachery Anderson

Often, our law firm represents someone accused of criminal sexual conduct. In such cases, one of the penalties is being listed on the sex offender registry -known as SORA in the industry- as a component of the sentence.

These days there are not many things worse than being labeled a sex offender. There are many cases, however, where if the details were known, they would reveal that the convicted offender is not a monster at all but rather, someone that exercised poor judgement on a single occasion.

Examples include so-called "Romeo and Juliette" situations where the accused is only a few years older than the all-too-willing victim. Other tough cases involve situations where the victim lies convincingly about his or her age.

In Michigan, 17 is the age of legal consent for sexual activity; younger than that and the older person can be charged with criminal sexual conduct.  This is what happened in the case of a 19-year old young man from Indiana when he crossed the state line into Michigan for a sexual liaison. The object of his affection lied, telling him she was 17 when in fact, she was only fourteen.

The couple "hooked-up" on the Hot or Not app. This app, like Tinder, allows for easy access to a multitude of profiles.

Unfortunately for Zachery Anderson, by the time his love interest returned to her home in Michigan, the local sheriff was already there, conferring with her very-concerned mother over her sudden albeit temporary disappearance.

Anderson was charged with criminal sexual conduct in the 4th degree, a misdemeanor. At his sentencing hearing, however, the district court judge denied Anderson's request for the age-based deferral status and required him to register as a sex offender.

Not getting youthful trainee status was a huge blow, requiring Anderson to register with the Michigan State Police for the next 25-years. He cannot have an email address; he cannot live near a park -his parents live near a boat launch on the St. Joseph River which is deemed to be a "park"; he cannot access the Internet which he needs to do for his computer science major.

At his sentencing hearing, even Mr. Anderson's victim called for leniency, but to no avail. Instead, the district court judge sentenced him to 90-days jail, denied Holmes Youthful Trainee status, and required Anderson to register on SORA. In doing so, the judge criticized Anderson's uses of the social media app "Hot or Not" and the casual hook-up culture so prevalent among teenagers.

In cases like these, the sentencing judge should take into account the relative ages of the participants. Under Michigan law, a victim cannot "consent" to sexual activity until attaining the age of 17. Also, consider that, although not a complete defense to such charges, the uncontested fact that the victim held herself out to be of the age of consent should be taken into account by a sentencing judge.

Related: Although it will not assist young Mr. Anderson, we did note a few months back in this post that certain provisions of Michigan's SORA were deemed unconstitutional by a federal judge in Detroit.

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Married to the Medical Marijuana Patient

Justice Richard Bernstein

Yesterday, the Michigan Supreme Court, in one of Justice Richard Bernstein's first opinions, held that when a husband-wife medical marijuana operation is not conducted in strict accord with the Medical Marijuana Act, the wife, whose role was limited to assisting with the harvest schedule, is not afforded immunity under the MMA. So let's break that down.

In the case, People v Cynthia Mazur, Oakland County Circuit Judge Colleen O'Brien denied defendant's request for immunity under the act because the grow operation conducted within the marital home was not in accord with the provisions of the MMA. Ms Mazur's role in the operation was limited to writing-out the harvest schedule of the pot plants on sticky notes.

Defendant's husband was both a registered marijuana patient as well as a care-provider. Ms. Mazur, however, was neither.

She appealed the trial court's denial of her request for immunity, but the Michigan Court of Appeals affirmed Judge O'Brien's ruling. The Supreme Court agreed to take a look. In its opinion, the High Court left the door open for the defendant, however, by ruling that her sticky notes detailing harvest dates constituted supplying hubby with "marijuana paraphernalia" as that phrase is defined in the act.

Accordingly, Justice Bernstein's opinion concluded that if these sticky notes were the prosecutor's only evidence, then the charges against Mazur had to be dismissed; the prosecutor could, however, rely on other evidence to secure a conviction, the Court held.

This case is the first of a triad of pot cases from the Oakland County Circuit Court to result in an opinion from the Michigan Supreme Court. Decisions in the two remaining cases are expected within the next few weeks as the High Court prepares to end its 2014-2015 term.

One of the take-aways from this case is that spouses of registered patients may avail themselves of the immunity of the MMA, even if they are not registered care providers or patients, if the operation is conducted in strict accord with the act.  If the operation is rogue or being conducted outside compliance with the MMA, then criminal liability can attach to the non-registered spouse.

We note, and perhaps this is the other take-away, that the Mazurs are now divorced.

Stoned Driving Gets Much Needed Legislative Attention

By:  Brent Scott

Social acceptance and decriminalization has equated to more people getting behind the wheel after they have consumed marijuana.  However, unlike alcohol, there is no standard measurement to determine whether someone has had “too much” weed while operating a motor vehicle; if blood is drawn and there is any THC, the active ingredient of pot, then the driver is in violation. 

THC metabolites can remain in your system for up to 30-days.  Thus, just because a driver has trace amounts of marijuana in their blood stream at the time of the arrest, does not prove the individual was feeling the drug’s effect at the time of the traffic stop.  Consequently, this gap in the law has left police, prosecutors, and Cheech and Chong with an incredible amount of uncertainty. 

When an officer pulls a driver over and determines they have probable cause to believe the driver is under the influence of a controlled substance, the individual’s blood is drawn to be tested for THC.  This is where the process gets complicated because unlike alcohol (.08), there is no specific threshold that defines what exact amount of THC in the blood means a person is under the influence at the time of operation.  [Note: in Washington state, the legal threshold is 5 ng/ml.]

In People v. Koon, the Michigan Supreme Court held that if you are a medical marijuana patient, you may operate a vehicle with THC in your system, so long as you are not impaired or under the influence.  From a practical standpoint, this holding makes little sense.  For example, this blogger fails to understand why it is safe for Mr. Cheech to operating his vehicle with marijuana in his system because he has his medical marijuana card, but unsafe for Mr. Chong, because he lacks the state certification.       

Law enforcement and members of the driving public need a standard to measure the legality of operating a vehicle when the driver uses marijuana.  Currently, patrol officers use methods akin to conducting field sobriety tests. 

Training is available but it is expensive, and takes 3-weeks.  Most officers will admit they simply use the same subjective tests that are administered for “drunk” drivers –glassy eyes, smell, speech.  This is not a technical analysis. 

Last week, Governor Snyder signed legislation to allow police to conduct a preliminary roadside analysis for control substances.  However, until the actual statute is published, and it regulations are developed, little is known about the mechanics of how these tests will be performed. 

Earlier this year lawmakers removed a provision from legislation proposing a roadside saliva test for controlled substances after concerns were raised about scientific accuracy.  Thus, it appears that until marijuana impairment is better understood, it will be up to police officers to make a subjective assessment as to whether a driver is “under the influence” of a controlled substance when operating their vehicle. 

This makes us a bit uncomfortable over here at our law firm.  If you or a friend have recently been subjected to a roadside sobriety analysis, you may want to give us a call to discuss your options.

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Blood Draws May Require a Warrant in Some Suspected Drunk Driving Cases

By: Brent Scott

If you are of the opinion that our government is already too invasive (think PRISM – the clandestine mass electronic surveillance data mining program launched by the NSA back in 2007), you may not want to read any further.  Did you know that by merely obtaining a driver’s license you are also consenting to a blood test? 

Michigan’s implied consent law provides that a person operating a motor vehicle is considered to imply his consent to have chemical tests of his blood, breath, or urine to determine the amount of alcohol or a controlled substance if the person is suspected of operating while intoxicated.

Now, courtesy of a recent SCOTUS decision, the pendulum may be swinging in the other direction.  In a 5-4 decision, authored by Judge Sonya Sotomayor, the Supreme Court agreed with Tyler McNeely’s defense counsel that an involuntary blood draw is a "search" as that term is used in the Fourth Amendment.  

A technical reading of this decision is that a search warrant is generally now required for a blood sample to be withdrawn from a suspected intoxicated driver’s body.  However, as our SCOTUS likes to do, it opened the door for an "exigent circumstances" exception in some drunk-driving situations where a warrant would not be required.

Specifically, in McNeely, the Defendant was stopped for speeding.  McNeely was asked to submit to an alcohol breath and blood test, both of which he refused.  When the hospital staff took a blood sample without the arrested driver’s consent, the result was that McNeely's blood-alcohol levels were above the legal limit; he was charged with driving while intoxicated. 

McNeely’s defense lawyer moved to suppress the test arguing the blood draw constituted a search and the officer needed to obtain a warrant.  After all, the officer testified at the suppression hearing that he had time to obtain a warrant, but simply chose not to.   

So where does this leave us?  It appears that prosecutors are barred from arguing that implied consent searches are “per se” valid and constitutional because a blood draw is a "search".

Justice Sotomayor’s decision states:

We hold that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant…. "In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.

However, as the loony Lee Corso likes to say, “not so fast my friend.”  The Court also reiterated that police are not required to get a warrant if there is some true exigency:

 We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test. That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the “considerable overgeneralization” that a per se rule would reflect…” and …"exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process.

Well that certainly clears it up for me…   

From a practical standpoint, it is tough to tell how the McNeely ruling will play out on the highways and byways of America.  On one hand, metabolism does not automatically create an exigency thus, a warrant is called for.  On the other hand, since a warrant takes time that creates a delay where alcohol will be metabolized and eliminated from the suspect’s blood stream, minute by minute by minute. 

While time seems to be the key element in the evidence preservation equation, the High Court did not elaborate on what the exigent circumstances might be to trigger an application of the exception.

Perhaps law enforcement will be able to streamline the warrant process in drunk driving cases – I’m sure the district court judges will love being woken up at 2:00 a.m. to make probable cause determinations. 

Bottom line: the explicit recognition that some chemical tests require a warrant is certainly a good thing for defense attorneys and for the rights of the accused.  As always, it takes good lawyering to figure out how to best use the McNeely case. 

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