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A technical reading of this decision is that a search warrant is generally now required for a blood sample to be withdrawn from a suspected intoxicated driver’s body.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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The Plea

This is a post that received recognition as the 2013 "JDog Memorial Blawg Post" for the best post on criminal law, in the opinion of Scott Greenfield, a prolific law blogger over at Simple Justice and a veteran criminal defense lawyer from New York City.

By:  Leo Mulvihill, Jr.

It is Tuesday at 9.30am and I am in the booth.

The booth is a tiny box where I have the honor of talking to my client through an inch of bullet-proof glass. I say “talking”, though it’s really more like yelling, since it’s pretty hard to hear through that glass.

“Booth” is a misnomer too. “Booth” reminds me of the precursor to something fun. You buy tickets to a movie or carnival rides at a booth. No such fun was happening today.

Really, the booth is purgatory, a limbo my clients sit in after they’ve made their way from the prison and to the courthouse basement’s holding cells, but before they enter the courtroom where they await final judgment.

This particular morning, I am wearing a navy flannel Brooks Brothers No. 1 sack suit, a white shirt I freshly pressed at 5.30 that morning, and a somber tie that reflected my mood.

In gross juxtaposition, my client is in an orange prison jumpsuit and has a thermal on underneath to keep warm. I guess this hell follows Dante’s rules.

My client is a good man who’d recently made a series of terrible decisions, all of which led to where he is today. Despite his cock-ups, he was truthful and admitted his mistakes not only to his family, but to members of his community.

Then the police became involved.

And he got arrested.

And his mistakes became a “case.”

And that’s how we ended up on opposite sides of the same sheet of glass on Tuesday at 9.32am.

Today, he is ready to plead guilty to the charges against him. In exchange for giving up his Constitutional right to a jury trial, he is offered a sentence far less than what he would see if he were found guilty at trial.

Though we’ve already done this before back up at prison, I review with him one last time his written guilty plea colloquy, and explain to him word by word the rights he is giving up by pleading guilty. I’m reading it to him like I’d read “Hop on Pop” to a kindergartner.

But he’s not a kindergartner. He’s a grown man. And this isn’t “Hop on Pop.”

It’s 9.34am. I’ve finished reviewing the colloquy with him. He’ll sign it out in the courtroom, since now his hands are shackled behind his back and we’re separated by an inch of bullet-proof glass.

It’s 9.35am, and I can only watch as my client sobs and tears stream down his face.

You see, up until this point he’s been a man of god. An educated guy, he’s worked the same job for the last 25 years, and been married to the woman he loves for the last 30. He’s lost all of that now.

(Did I miss the day in law school they taught you how to handle this?)

According to the arrangement with the District Attorney’s office, he faces up to five years in a state correctional institution for the crimes he’s pleading to. If he’s really good (including credit for time served) he’ll get out in about two years. If he runs into problems in prison, he’s going to miss his son’s high school graduation.

I ask him if he as any more questions for me before we go into the courtroom.

“Lord Jesus, what have I done? Will God forgive me? My wife’s left me. Leo, what am I going to do?”

He spits out this sentence between sobs. A man, broken. But in an instant, he musters up all the dignity he has left. He toughens up his features and tries to wipe his eyes on his elbow—which is difficult seeing as his arms are handcuffed behind his back—and puts on an air of stoicism.

And I tell him. “Bill [not his real name], when the court officer asks you how you plead, you say ‘Guilty’”.

He nods.

According to that fancy framed piece of paper from the Pennsylvania Supreme Court hanging on the wall of my office, I’m an attorney and counselor at law. But the three years of schooling and two years out in practice hadn’t prepared me for this—telling a grown man, through bullet proof glass, who until thirty seconds ago had been crying like a baby, that he was going to be spending the next five-ish years of his life outside of the city he’s lived in his whole life, shipped out to Bumblesuck, Pennsylvania (which alone would be enough of a shock) to take up residence at the taxpayer’s expense in a state correctional institution. And I can tell you that a state correctional institution is no Sandals resort. Hell, it’s not even a Howard Johnson.

“Leo, what am I going to do with the rest of my life?” He asks me. While his expression is still stoic, his bloodshot, watery eyes belie his terror. That look—the feeble attempt to cover fear with toughness—it’s a look that will quickly become familiar to me.

At 9.37am, two knocks on the door interrupt us. The court crier pokes his head in. “The Judge is ready,” he says, then shuts the door behind him.

I stand up. Bill stands up, hands cuffed behind his back, and the sheriff walks in prepared to lead him out to the courtroom.

Through the glass I shout: “Bill, I’ll see you inside. It’s been my honor to represent you. Remember — everyone is better than the worst thing they’ve ever done.”

I turn and walk out of the booth, prepared to meet my client in the courtroom for judgment.

___________________________________

Leo Mulvihill, Jr. is a criminal defense lawyer from Philadelphia, PA.  We here at the electronic criminal lawyer can appreciate his experience and his sentiments; we've been there with some of our clients. Defending the accused can be a rough road at times.  Few cases go to trial; the majority end with some sort of plea.

We cannot help but wonder what crime Mr. Mulvihill's client pled to, and what sentence was meted out by the judge.  From the tone of the post, sounds like the client was headed to prison.

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Federal Judge Establishes Juvenile Lifer Parole Process

In the wake of a pair of SCOTUS decisions, Graham vs Florida, and more recently, Miller vs Alabama, holding that state juvenile lifer statutes violate the 8th Amendment's prohibition of cruel and unusual punishment, U.S. District Judge John Corbett O'Meara ruled on Tuesday that the State of Michigan has to get serious and must take immediate action to comply with those decisions.

This federal judge has rolled-up his sleeves and has got down to some serious, serious business where these individuals are concerned.

Here is a summary of the requirements set out in Judge O'Meara's tersely worded 2-page opinion.  By December 31, 2013, the State of Michigan must:

• Create an administrative structure for the purpose of processing and determining the appropriateness of paroles for prisoners sentenced to life without parole for crimes committed at juveniles;

• Give notice to all such persons who have completed more than 10-years imprisonment that their eligibility for parole will be considered in a meaningful and realistic manner; 

• Schedule, on a fair and reasonable basis, proceedings including a public hearing for each of the eligible prisoners making application for consideration;

• Put in place a process for preliminary determination of appropriateness of submission of each eligible prisoner's application for parole to the entire Parole Board;

• The proceedings, from an initial determination of eligibility will be fair, meaningful and realistic;

• The Parole Board will, in each case, issue its decision and explain its decision determining the appropriateness vel non [Latin for "or not"] of parole.  It will not issue a "no interest" Order or anything like a "no interest" Order;

• There will be no vetoes by the sentencing judge or anyone else; and 

• As of the date this process begins, there will be no prisoner sentenced to life imprisonment without parole for a crime committed as a juvenile will be deprived of any educational or training program which is otherwise available to the general prison population.

Wow, those are some serious substantive rights for Michigan's prisoners.  In the event that the State of Michigan fails to establish the above  procedures by the end of the year, Judge O'Meara also has ordered the appointment of a Special Master to carry out the federally mandated procedures.

For its part, the Michigan Attorney General has been focused on the families of the victims in these cases, arguing that the SCOTUS holdings in both Graham and Miller only should be applied prospectively, and not retroactively as argued by the criminal defense bar.

There are approximately 350 juvenile lifers doing time in Michigan prisons, most of whom are indigent and many of whom will be able to immediately take advantage of Judge O'Meara's order.  It is a good bet that the State Appellate Defenders Office is about to get really busy.

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Stop and Frisk in Gotham

Federal Judge Shira Scheindlin

When a police officer has good reason to stop someone on the street to ask a basic question like, "what is your name?" or, "what are you doing?", he has a right not to receive a bullet for an answer.  In some places in our country, here in the 313 or, say, Gotham, police are often viewed as the enemy, especially by the thugs on the streets patrolled by those officers.

Police officers are trained to identify and stop crime.  Their training and experience translates into certain tactics used on the streets in the course of their daily job duties.

One such tactic endorsed by the SCOTUS 45-years ago, in a case called Terry vs Ohio, is the "stop-and-frisk".  A stop-and-frisk is where a police officer with a "particularized suspicion" [something less than probable cause] that a person may be involved in criminal conduct, can stop the person  -briefly detain the individual- in order to ask them some basic questions.

In the process of stopping the individual and asking them basic questions, the officer may pat down the outer clothing of the individual in order to ensure no weapons are present and to facilitate the safety of the officer, the stopped individual, and innocent bystanders.  Think Sheriff Andy Williams strolling through Mayberry.

In theory, this pat down search must be brief and minimally intrusive, limited to the outer clothing of the individual; it cannot be a search for evidence.  How a particular officer conducts a basic pat down search says a lot about his personality; where a pat down search takes place is a huge factor in whether there will be trouble, or not.

On the mean streets of NYC, like here in the "D", officers have their hands full.  Routine stop-and-frisks can become a full-on fleeing, eluding and shooting in a matter of seconds.

In recent years, much grumbling has percolated up from the streets of Gotham due to the manner in which the NYPD handles its stop-and-frisk maneuvers.  The NYPD has been criticized for using racial profiling techniques in the prosecution of this law enforcement tactic.

In turn, this has led to a recent series of strident rulings by a federal judge in Manhattan.  Judge Shira A. Scheindlin has ordered sweeping changes to the NYPD, including a suspension of the stop-and-frisk policy as well as the appointment of a monitor for the department.

These rulings have been appealed to the United States Court of Appeals for the Second Circuit by the legal department of the outgoing Bloomberg administration.  Last month, the Second Circuit stayed Judge Scheindlin's rulings pending resolution of the appeal.

Of course, nothing ever being simple in Gotham, Judge Scheindlin put her thumb print all over these cases through a questionable maneuver to steer all the "stop-and-frisk" cases into her courtroom, and by granting media interviews about the cases while they were still being prosecuted in her Manhattan courtroom.

Now, however, some City bureaucratic leaders, and law-enforcement oriented folk, fear that the new administration of mayor-elect Bill de Blasio will withdraw the City's appeals of Judge Scheindlin's so-called anti-NYPD rulings.  NYC is the only entity with standing to appeal the rulings.

We shall see how these cases turn out in Manhattan.  While there could be some implication for all big-city police departments, here in Detroit, the DPD has a host of other problems distinct from how they conduct their stops and frisks.

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Should Texting to Someone Driving a Car be Criminalized?

These days it is nearly universal that texting while driving is a violation of the motor vehicle code, or at least a local ordinance, in the jurisdiction through which you are passing.  Now, some law makers are considering whether a person that texts to someone they know is driving should be proscribed conduct as well.

This would mean that if your spouse or child is on their way home, and you decide to text them to, say, grab a loaf of bread from the market, or a bottle of wine from the corner store, you've committed a crime; or at least an ordinance violation.  Some say this is needed while others assert such laws go too far.

To be sure, studies demonstrate that a driver distracted through texting or operating an increasingly complex cell phone is at least the equivalent of some mild forms of drunk driving.  As always, it depends on the circumstances.

There could be some free speech defenses available to those pushing out text messages.  However, time and place restrictions are common relative to our right to "speak our mind".  Should such regulation apply to our preferred mode of communication when the recipient of such speech is traveling across the local highways and byways of our communities?

One possible solution would be to require manufactures to put an app in all cell phones such that whenever that phone is traveling via GPS at a high rate of speed, it is unable to receive text messages.  But then, what about the passenger of the vehicle?

This type of legislation, actually proposed in New Jersey, and perhaps soon to other states and jurisdictions, will probably not pass; there are too many problems that would arise and enforcement would be cumbersome.  The message behind such initiatives, however, continues to seep out:  operating cell phones while driving is a bad and dangerous idea.

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Where's the Body? Prosecuting the "No Body" Case

Career Prosecutor Donna Pendergast

By Donna Pendergast

The Corpus Delicti rule mandates that a prosecutor prove that a crime has been committed before a person can be convicted of committing a crime.

A dead body is a critical component and establishes the corpus delicti of a murder case.  However, successful prosecutions have occurred where there is no body and sometimes no physical evidence linking a suspect to the crime.

I have successfully prosecuted two "no body" murder cases and sent away five defendants on murder charges where there was no body to substantiate the crime.  Having tried over 200 cases to a jury with 97 of those cases being murder trials, I can vouch from experience that the "no body" murder trial is the most difficult and complex prosecution of all.  It is a difficult feat to convince jurors of a murder without the body as a key piece of evidence.  With careful and tenacious planning it is an obstacle that can be overcome.

The ABC's of a "No Body" Prosecution
Prosecuting a murder case without a body is an uphill climb for a prosecutor. Without a body, circumstantial evidence becomes the key to the prosecution.  The prosecutor must use every shred of available evidence to prove to the jury circumstantially that murder is the only logical explanation of what happened.  The prosecutor must also disprove all innocent explanations for the disappearance.

The first thing that a prosecutor must do in a "no body" murder case is make a critical assessment of all available evidence to determine if there is sufficient circumstantial evidence to convince a jury that a murder occurred. Before charging a "no body" murder case, the prosecutor must be ready to rule out reasonable explanations for the disappearance through the process of elimination.

The prosecutor must prove not only that death is the reason for a disappearance, but that the means of death was at the hands of another. The prosecutor needs to use circumstantial evidence prove that the death was a murder as opposed to an accident or by natural causes.  The defense will capitalize on any uncertainty in the case arguing that there may be another explanation.

The Missing Hunters
A case that I prosecuted in 2003 is a classic example of a "no body" murder case.  On Friday November 22, 1985, Brian Ognjan and David Tyll left their suburban Detroit homes for a weekend hunting trip and disappeared off the face of the earth.  When they failed to return home as planned on Sunday night, the families and later police authorities began a massive search.  Their bodies and vehicle were never recovered.

In October 2003, J.R. Duvall and his brother Coco Duvall went to trial for the murder of the missing hunters. I had one witness who came forward after 18 years to admit that she had observed the Duvall brothers savagely beat the hunters to death with a baseball bat outside a local bar.  It was widely rumored, but never proven, that the bodies of the hunters were then cut up in a wood chipper and fed to pigs.  A more detailed account of the nuances of the case can be found in Tom Henderson's book, Darker Than Night, which gives an eerily accurate description of the case and trial.

The lack of bodies in the case was complicated by other difficult problems.  My key witness in the case, Barb Boudro, had issues that I also needed to overcome with circumstantial evidence to prove a murder. Barb admitted to having at least nine drinks the night of the murder, she didn't know what had happened to the bodies after the beating and she had delayed telling the police what she knew for 18 years.  I also had a concern, which did in fact materialize at trial, that Barb would be portrayed as a media attention seeker because of the high-profile nature of the trial.

To corroborate Barb's story, I needed to elicit every favorable shred of circumstantial evidence available to bolster her version of events. To prove the death of the two hunters was fairly easy.  Both David Tyll's and Brian Ongjan's bank accounts and credit cards had never been accessed after their disappearance.  This evidence was presented at trial to refute claims made by the defense that perhaps the two hunters had ran away to start new lives.

I also presented testimony from David Tyll's wife that he had asked her to come along on the trip.  This circumstantial evidence seemingly ruled out the likelihood that the two hunters willingly set the stage to disappear and start new lives.  I also put in evidence to show that there had been no medical insurance claims presented nor processed over the past 18-years for either of the two.  This circumstantial evidence supported my witness's claim that the hunters were in fact dead.

Proving that the deaths were due to murder was more problematic.  Barb's testimony still for the most part needed to stand on its own to prove death by murder as opposed to accident or natural causes.  The defense argued that even if the hunters were dead, the prosecution couldn't prove murder but for the testimony of one shaky and drunk witness. The defense further argued that the hunters who were last seen in an extremely intoxicated state may have driven off the road and ended up in a lake or quarry.  As the defense repeatedly argued, the prosecution had the burden of proving that something like that hadn't happened.

Luckily I had snippets of statements made by the Duvall brothers over the ensuing 18-years that corroborated Barb's version of events to a certain extent.  It was only a few small snippets but it was enough. After a two week trial the jury came back guilty of First Degree Murder in less than two hours.

My other "no body" case was considerably easier than the first.  In Detroit Michigan, in early 2001, three men working on a house renovation ambushed, tortured, and robbed the owner of the house when he stopped in to check on their progress.  They then stuffed his body in a trash can and took it out to the curb where it was picked up in the normal trash collection the next morning.  By the time the police learned of the murder and got to the city dump the body was presumably completely buried under massive mounds of trash.  Multiple search attempts were made to sift through the trash piles with a bulldozer to no avail.  That set the stage for a "no body" prosecution utilizing circumstantial evidence.

The victim had been stabbed multiple times at the house so there was DNA evidence at the crime scene to compare to the victim's DNA taken from his toothbrush.  This proved that at the very least the victim had been bleeding in the house.  I also put into evidence pictures of the city dump so that the jury could understand the futility of the search and see for themselves why the body was never found.

The three defendants later all individually made statements exculpating themselves but implicating the others in the murder.  This further proved a murder, even if the respective defendants were blaming it on each other. Since these types of statements are only admissible in trial against a defendant himself and not against other defendants, I was required to do a triple jury trial when prosecuting the case.

The trial was a circus to say the least.  We had three separate juries in court at the same time.  I was required to do three separate opening and three closing arguments back to back to back.  That made for one exhausted prosecutor.

For much of the testimony all three juries could be in court simultaneously.  However, certain witnesses only pertained to one jury and when the defendant's respective statements were introduced into evidence only the jury for that defendant was allowed to be in the court to hear the statement.  All three juries ultimately convicted the defendants of murder after a three-week trial.

My personal experience has proven that the conventional wisdom of "no body, no murder" is a thing of the past.  The "no body" murder case makes for a difficult prosecution but more and more frequently these case are being prosecuted and won despite the lack of a body.  What used to be the perfect crime for those cunning enough to dispose of their victims has become a little less perfect.  For that we can all be grateful.

Donna Pendergast is a career prosecutor.  She has tried high-profile murder cases for both the Oakland County Prosecutor and the Wayne County Prosecutor before serving the Michigan Attorney General as a First Assistant.  We here at the electronic criminal lawyer wish to thank Donna for permitting us to reprint her comments from a recent article in the Ludington Torch.

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Entrapment of a Drunk Vehicle Passenger

By: Timothy P. Flynn

This would have made a great appeal had the accused not pled to a lesser charge.  A district judge from Brighton accepted a plea from a woman who moved from the passenger seat to the drivers seat of her drunk boyfriend's truck at the command of a police officer who happened upon the scene of a local restaurant.

District Judge Theresa M. Brennan ruled that it is not entrapment when a police officer requests [demands] an obviously drunken passenger to move a vehicle, then arrests her for drunk driving after she backed right into his patrol car.  The woman was convicted via plea of the lesser offense of impaired driving; she allegedly had a BAC of .17, making her eligible for a "super drunk" charge.

Prior to the woman's plea, her attorney argued for dismissal of the drunk driving charge based on an entrapment defense.  Entrapment is when an otherwise law abiding citizen is induced to commit a criminal act.

The defense lawyer asserted that the woman was placed in a position of either resisting an officer or operating a vehicle with an illegal blood alcohol level; she chose to obey the officer's command.  Not taking the bait, Judge Brennan ruled that the woman made a "bad decision", and that the Brighton police officer was just, "doing his job."

Now that the woman has pled, her right to appeal could have been compromised depending on the procedure that played-out in the case.  The now-convicted woman is scheduled to be sentenced sometime next month.

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SCOTUS Upholds Warrant Requirement for Blood-Draws

In January 9, the US Supreme Court was presented with a straightforward question:   can a law enforcement officer legally obtain a non-consensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment’s warrant requirement based upon the natural dissipation of alcohol in the bloodstream?

The simple answer – NO.  However, we all know that the law is never that simple.

Last month, SCOTUS decided Missouri v. McNeely, holding that the natural metabolization of alcohol in the bloodstream does not present a per se exigency categorically justifying a warrantless, nonconsensual blood test in all drunk-driving cases.

The High Court ruled that exceptions for exigency in this context require a case-by-case analysis, based on the “totality of the circumstances” to determine if the government could have obtained a warrant “within a reasonable amount of time.”  Also, a legitimate inquiry is whether securing a warrant “produce unacceptable delay” in light of the exigency of the dissipating alcohol levels in the arrestee’s blood.

So what does all this mean for the driving public?  And how does a police officer know when they need a warrant to conduct a blood draw following a drunk driving arrest? 

Here is some guidance offered by the McNeely Court:

[I]n a situation in which the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer, . . there would be no plausible justification for an exception to the warrant requirement.

Hence, the Court disagreed with the State of Missouri’s argument that an exigency necessarily exists in any alcohol-related blood test given because that blood-alcohol content rapidly diminishes with time.  SCOTUS agreed, however, that significantly delaying a blood test to obtain a warrant would, "negatively affect the probative value of the results." 

Therefore, it is safe to say that when obtaining a warrant is impractical, the blood testing may well merit an exigency exception, and a blood sample secured without a warrant will be admissible evidence in the drunk driving case.   

Here are the take-aways from this case:

§  No automatic exigency due to the natural dissipation of alcohol in the blood-stream;

§  Police still must obtain warrants prior to seizing biological samples; and

§  Bona fide exigent circumstances will justify warrantless blood draws.

In sum, McNeely’s impact on Michigan law, where warrants for blood draws are the norm, is minimal.  Nonetheless, some believe that the holding in Missouri v. McNeely can be used as a sword to attack the implied consent laws –where even refusing to provide a biological sample to police as a driver is a separate offense.  Implied consent laws have been adopted by all 50 States. 

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Small Pot Transfers Between Patients Immune Under Medical Marijuana Act

In a significant decision further deepening Michigan's medical marijuana jurisprudence, the Michigan Court of Appeals, in the case of People v Tony Green, held that non-compensated marijuana transfers from one registered medical marijuana patient to another are immune from prosecution under section 4 of the Medical Marijuana Act (MMMA).

This case is significant for two reasons.  First, the MMMA does not provide for a pot distribution scheme allowing care providers to sell their wares; the Act is quite vague on the subject of transfer and distribution of pot.  In reading the Act, it appears that the only way to legally transfer marijuana from care provider to patient [and now, thanks to this decision, from patient to patient] is the old-fashioned "hippy" way of bartering and gifting; you cannot do cash transactions.

Second, the Tony Green case is significant because it is a published decision, making it binding on trial courts throughout Michigan.

The undisputed facts of the case have Tony Green making a small, uncompensated marijuana transfer to another patient.  The amount of marijuana involved was less than the 2.5 ounce limit set forth in the MMMA, and the person Green was giving the marijuana to was also a certified patient under the Act.  [Technically, the person Green gave the pot to had not yet received his registration card but had submitted his application more than 20-days prior to receiving the medical marijuana donation from Green.]

The Court of Appeals held that such a non-compensated transfer between two marijuana patients is a "medical use" of marijuana expressly authorized by the MMMA.  Thus, such transfers are immune from prosecution.

Folks, you don't need us here at the Law Blogger to tell you that such "hippy" transfers are not the norm in the medical marijuana industry.  Pot farmers are not growing, er, medical marijuana as a hobby; they are growing pot to make money.

On this note, the Michigan Supreme Court heard oral argument last fall on a case presenting the issue of whether the MMMA provides immunity for cash sales of marijuana.  So, we shall have our answer soon.

Stay tuned...

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Appeals Court Creates New Crime to Affirm Conviction

This case, State v Helen, arose out of North Carolina.  The facts, on the surface, were about as favorable as it gets for the prosecutor.

The accused had a tail light out.  [If I had a dime for every defendant I represented who was pulled over for a tail light...]  The officer stopped the motorist; the stop led to a search of his vehicle and, eventually, a drug conviction.

Here is the problem that arose on appeal: in North Carolina, there is a little known wrinkle in their motor vehicle code which provides that, so long as a motorist's other tail light is functioning, having one light out is not a violation.

This case went all the way to the North Carolina Supreme Court.  Now, if I was sitting on that High Court, my vote would be to reverse the conviction.  If the officer lacked probable cause to conduct a traffic stop, then basic Fourth Amendment constitutional law provides that the evidence seized in an illegal stop and search is excluded as the proverbial "fruit of the poisonous tree".

A constitutional "no-brainer", right?  Guess again.  The divided High Court essentially created a new traffic law by holding that, so long as the officer held a reasonable belief that a law had been broken, the search was legal.

But citizens, take note that this "reasonably-held-belief" standard does not work both ways.  If you, the motorist, reasonably believe that you are obeying the traffic laws, [say you are texting in a municipality where you believe no distraction ordinance has been adopted], but in fact, you are violating a provision of the traffic code, then your ignorance of this law is no defense and you can get a ticket.

The "take away" from this case from North Carolina is that ignorance of the law is ok if you are a peace officer, but not if you are an ordinary citizen.

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Disparate Sentences for Local NBA Stars

A well-respected blog on sentencing picked-up on the infamous NBA drunk driving cases coming out of the 48th District Court in Bloomfield Hills, MI. The blog noted the difference between Jalen Rose's straight-forward OWI conviction [he did 14-days in the OCJ]; and the weapons charge component to Big Ben Wallace's OWI charge, recently resolved in the Oakland County Circuit Court before Judge Shalina Kumar.

Here is what the blog had to say about the two cases:

On the surface, it would appear that Wallace committed a (much?) worse offense but ultimately got a (much?) lighter sentence than Rose.  Of course, maybe there are some specific differences in the cases not obvious on the surface that justify this seeming disparity.  And, perhaps more importantly, the mere fact that can be (and often is) a lot of "low-level" sentencing disparity in this arena does not, in an of itself, necessarily establish that the applicable sentencing law is either unjust or ineffective.

Reading this blog post and being a local criminal defense attorney, I could not resist posting the following comment:

Great blog, DAB. This comment is from a criminal defense attorney in Oakland County, MI, where this Ben Wallace and Jalen Rose stuff went down. First, it is a suburb of Detroit; not in the "D", as we say. Also, Bloomfield Hills, where the district court is seated for that area, is a posh tony burb. (i.e. there are NBA stars driving around partying).

This comment seeks to shed some light on the "disparity" in the sentencing for the two NBA stars. Rose had the misfortune of driving drunk within the jurisdiction of the 48th District Court and to have his case randomly assigned to Judge Kim Small. Judge Small has made national headlines over the years for her drunk driving sentences; they often involve some jail time, even for first offenders with no criminal history. Currently, a group of high-end defense lawyers have challenged Judge Small, seeking to have her disqualified from all drunk driving cases on the basis that she is not fair or impartial, and that her "one-size-fits-all" sentencing policy (i.e. jail for all offenders), violates the "individualized sentencing" mandated by Michigan statute.
This is why Jalen Rose went to jail last summer. 

In the case of Ben Wallace, the big fella was OWI while packing some loaded cold steel in his Cadillac, upping his game to the felony level, and thereby "just passing through" the 48th District Court. Fortunately for him, although he too was randomly assigned to Judge Small, his attorneys executed a "fast break", waiving the preliminary exam, and binding Wallace over to the trial court. Once there, probation was available all day long. Good bye Judge Small; hello Judge Shalina Kumar. 

Unlike Rose, however, Wallace will have a felony weapons conviction on his record. Last year, Wallace spoke of going to law school. This probably puts the kabosh on that notion.
Here is a link to our local blawg coverage of Big Ben.

Sometimes an accused's notoriety helps his cause; sometimes it hurts the case.

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Panel Appointed to Examine Indigent Criminal Defense

This past week, Governor Rick Snyder issued an executive order appointing 10 people to serve on an "advisory commission".  Their mission: to quickly assess and make recommendations to the executive and legislature about the delivery of effective legal representation to the indigent accused.

Along with the 10 gubernatorial appointees, the commission also includes state legislative leaders from each political party; two from the state house and two from the state senate.

In reviewing the Governor's appointments, it was good to see Oakland County well represented.  Oakland County Circuit Judge Colleen O'Brien is on the commission along with former Oakland County Bar Association President Judith Gracey.

The problem presented to the Commission is how to provide effective assistance of counsel, as guaranteed under the United States and the Michigan Constitutions, for accused individuals that cannot afford to hire a lawyer.  Michigan is considered to be among the worst states in the Union in providing legal services for indigents.

This blog covered the problem last October when the Michigan Supreme Court reversed course in the Duncan v State of Michigan case, granting summary disposition to a constitutional challenge to our system of court appointed legal counsel.  So now the executive branch will make an attempt to fix what most everyone agrees is a broken system.

Here in Oakland County, this blogger has observed many a colleague providing quality legal service on a court-appointed [thus, low paying] basis.  A court-appointed lawyer may go through 50 pleas before taking a case to trial.

Similarly, at the appellate level, roster attorneys for the Michigan Appellate Assigned Counsel System subsist on a steady diet of guilty plea appeals which are essentially thankless fools' errands; done dirt cheap.  These MAACS attorneys, however, wait for a legitimate appellate assignment to come along, providing the opportunity to file a merits brief seeking to correct a constitutional wrong.

While professionally gratifying, the trial and/or appellate attorney can expect to be compensated at the rate of about $20 - $25 per hour.

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SCOTUS to Hear Michigan Case on Plea Bargain Process

This week I had a 3-day jury trial. When it was completed, I walked out of the courthouse but my client did not.

In such criminal cases, at the brink of trial, it is common that the plea discussions give an accused serious pause. Rejection of a reasonable plea offer can result in significantly more time in prison thus, the stakes are high.

The counsel-driven plea process is at the heart of a Michigan case up for oral argument this week at SCOTUS: Lafler v Cooper. The case comes from the Wayne County Circuit Court; straight out of the Frank Murphy Hall of Justice.

The female victim in the case was shot 4-times by Anthony Cooper: twice in the buttocks, once in the abdomen, and once in the hip.  She survived these gunshot wounds.

Cooper's lawyer rejected a plea offer that would have capped his prison term to the lower end of his sentencing guidelines on an attempted murder charge.  The offer was rejected on grounds that the medical evidence in the case would demonstrate that Cooper was only trying to maim his victim; not kill her.  Counsel pushed for a reduction of the charges to assault with intent to do great bodily harm.

Well, as I've learned over the past two decades: "good luck with that..."

After his jury trial conviction, Mr. Cooper was sentenced to 135-360 months in prison.  On appeal, he raised a claim that he received ineffective assistance of counsel during the plea bargain phase of his case in contravention of his rights under the Sixth Amendment to the U.S. Constitution.

With his appeals exhausted in the state courts, Cooper filed a petition for Habeas Corpus in federal court.  The federal court ruled that the state appellate court erred by not accounting for the "affirmatively deficient advice" of Cooper's trial counsel in rejecting the prosecutor's initial plea offer.

The remedy: the federal court ordered specific performance of the initial plea offer: i.e. a 50-month prison term.  Understandably, the prosecutor appealed hence, the case now resides on the SCOTUS docket.

We will keep an eye on this one for you as it implicates how defense counsel handles the all-important plea bargain process.  So stay tuned...

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