Monthly Archives: April 2012

BREAKING NEWS: LYING TO THE POLICE IS NOW A CRIME IN MICHIGAN!

If you were wondering what our legislature was doing with its time, be rest assured that they were not sitting around trying to figure out how to make your lives better, fix the economy or reduce your tax burden.  And you can abandon any hope that the legislature was sitting around thinking of ways to protect you from police and government overreaching and abuse.  In fact, quite the opposite was taking place:  the legislature has passed a law making it a crime to lie to a police officer.  Here are the terms of the law:

New Statute Prohibiting Lying To A Police Officer

A bill to amend 1931 PA 328, entitled “The Michigan penal code,”
(MCL 750.1 to 750.568) by adding section 479c.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

SEC. 479C. (1) EXCEPT AS PROVIDED IN THIS SECTION, A PERSON WHO IS INFORMED BY A PEACE OFFICER THAT HE OR SHE IS CONDUCTING A CRIMINAL INVESTIGATION SHALL NOT DO ANY OF THE FOLLOWING:

(A) BY ANY TRICK, SCHEME, OR DEVICE, KNOWINGLY AND WILLFULLY CONCEAL FROM THE PEACE OFFICER ANY MATERIAL FACT RELATING TO THE CRIMINAL INVESTIGATION.

(B) KNOWINGLY AND WILLFULLY MAKE ANY STATEMENT TO THE PEACE OFFICER THAT THE PERSON KNOWS IS FALSE OR MISLEADING REGARDING A MATERIAL FACT IN THAT CRIMINAL INVESTIGATION.

(C) KNOWINGLY AND WILLFULLY ISSUE OR OTHERWISE PROVIDE ANY WRITING OR DOCUMENT TO THE PEACE OFFICER THAT THE PERSON KNOWS IS FALSE OR MISLEADING REGARDING A MATERIAL FACT IN THAT CRIMINAL INVESTIGATION.

(2) A PERSON WHO VIOLATES THIS SECTION IS GUILTY OF A CRIME AS FOLLOWS:

(A) IF THE CRIME BEING INVESTIGATED IS A SERIOUS MISDEMEANOR, THE PERSON IS GUILTY OF A MISDEMEANOR PUNISHABLE BY IMPRISONMENT FOR NOT MORE THAN 93 DAYS OR A FINE OF NOT MORE THAN $500.00.

(B) IF THE CRIME BEING INVESTIGATED IS A MISDEMEANOR PUNISHABLE BY IMPRISONMENT FOR MORE THAN 1 YEAR OR IS A FELONY PUNISHABLE BY IMPRISONMENT FOR LESS THAN 4 YEARS, THE PERSON IS GUILTY OF A MISDEMEANOR PUNISHABLE BY IMPRISONMENT FOR NOT MORE THAN 1 YEAR OR A FINE OF NOT MORE THAN $2,500.00, OR BOTH.

(C) IF THE CRIME BEING INVESTIGATED IS A FELONY PUNISHABLE BY IMPRISONMENT FOR 4 YEARS OR MORE, THE PERSON IS GUILTY OF A MISDEMEANOR PUNISHABLE BY IMPRISONMENT FOR NOT MORE THAN 2 YEARS OR A FINE OF NOT MORE THAN $5,000.00, OR BOTH.

(3) THIS SECTION DOES NOT APPLY TO EITHER OF THE FOLLOWING:

(A) ANY STATEMENT MADE OR ACTION TAKEN BY AN ALLEGED VICTIM OF THE CRIME BEING INVESTIGATED BY THE PEACE OFFICER.

(B) A PERSON WHO WAS ACTING UNDER DURESS OR OUT OF A REASONABLE FEAR OF PHYSICAL HARM TO HIMSELF OR HERSELF OR ANOTHER PERSON FROM A SPOUSE OR FORMER SPOUSE, A PERSON WITH WHOM HE OR SHE HAS OR HAS HAD A DATING RELATIONSHIP, A PERSON WITH WHOM HE OR SHE HAS HAD A CHILD IN COMMON, OR A RESIDENT OR FORMER RESIDENT OF HIS OR HER HOUSEHOLD.

(4) THIS SECTION DOES NOT PROHIBIT A PERSON FROM DOING EITHER OF THE FOLLOWING:

(A) INVOKING THE PERSON’S RIGHTS UNDER THE FIFTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES OR SECTION 17 OF ARTICLE I OF THE STATE CONSTITUTION OF 1963.

(B) DECLINING TO SPEAK TO OR OTHERWISE COMMUNICATE WITH A PEACE OFFICER CONCERNING THE CRIMINAL INVESTIGATION.

(5) AS USED IN THIS SECTION:

(A) “DATING RELATIONSHIP” MEANS FREQUENT, INTIMATE ASSOCIATIONS PRIMARILY CHARACTERIZED BY THE EXPECTATION OF AFFECTIONAL INVOLVEMENT. THIS TERM DOES NOT INCLUDE A CASUAL RELATIONSHIP OR AN ORDINARY FRATERNIZATION BETWEEN PERSONS IN A BUSINESS OR SOCIAL CONTEXT.

(B) “PEACE OFFICER” MEANS ANY OF THE FOLLOWING:

(i) A SHERIFF OR DEPUTY SHERIFF OF A COUNTY OF THIS STATE.

(ii) AN OFFICER OF THE POLICE DEPARTMENT OF A CITY, VILLAGE, OR TOWNSHIP OF THIS STATE.

(iii) A MARSHAL OF A CITY, VILLAGE, OR TOWNSHIP OF THIS STATE.

(iv) A CONSTABLE OF ANY LOCAL UNIT OF GOVERNMENT OF THIS STATE.

(v) AN OFFICER OF THE MICHIGAN STATE POLICE.

(vi) A CONSERVATION OFFICER OF THIS STATE.

(vii) A SECURITY EMPLOYEE EMPLOYED BY THE STATE UNDER SECTION 23 6C OF 1935 PA 59, MCL 28.6C.

(viii) A MOTOR CARRIER OFFICER APPOINTED UNDER SECTION 6D OF
25 1935 PA 59, MCL 28.6D.

(ix) A POLICE OFFICER OR PUBLIC SAFETY OFFICER OF A COMMUNITY
COLLEGE, COLLEGE, OR UNIVERSITY WITHIN THIS STATE WHO IS AUTHORIZED BY THE GOVERNING BOARD OF THAT COMMUNITY COLLEGE, COLLEGE, OR UNIVERSITY TO ENFORCE STATE LAW AND THE RULES AND ORDINANCES OF THAT COMMUNITY COLLEGE, COLLEGE, OR UNIVERSITY.

(x) A PARK AND RECREATION OFFICER COMMISSIONED UNDER SECTION 5 1606 OF THE NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION ACT, 6 1994 PA 451, MCL 324.1606.

(xi) A STATE FOREST OFFICER COMMISSIONED UNDER SECTION 83107 OF THE NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION ACT, 1994 PA 9 451, MCL 324.83107.

(xii) AN INVESTIGATOR OF THE STATE DEPARTMENT OF ATTORNEY GENERAL.

(C) “SERIOUS MISDEMEANOR” MEANS THAT TERM AS DEFINED IN
13 SECTION 61 OF THE WILLIAM VAN REGENMORTER CRIME VICTIM’S RIGHTS 14 ACT, 1985 PA 87, MCL 780.811.

Enacting section 1. This amendatory act takes effect 90 days after the date this amendatory act is enacted into law.

Breaking News! Disqualification of Judge Sommers UPHELD on Appeal!

Today, a Wayne County Circuit judge affirmed and upheld the disqualification of Judge Mark Somers, the much maligned Dearborn judge who declared the Michigan Medical Marijuana Act unconstitutional.

The City of Dearborn appealed the District Court Chief Judge’s ruling disqualifying Judge Somers from this medical marijuana case.  Neil Rockind, P.C., the Southfield, Michigan criminal defense trial firm that has been at the forefront in the defense of medical marijuana cases, moved to disqualify Judge Somers after he made several comments and rulings about marijuana and the Medical Marijuana Act that revealed his bias against medical marijuana and marijuana, generally.  Rockind, with the aid of Stuart Friedman, the noted criminal defense appellate attorney, defended Chief Wygonik’s ruling disqualifying Judge Somers.

Neil Rockind, PC, the law firm who fought to disqualify judge Somers, continues the fight against judges who ignore the medical marijuana act.

Judge sets $150,000 bond for George Zimmerman

(CNN) –

A Florida judge set a $150,000 bond for George Zimmerman at a hearing Friday.

Minutes earlier, Zimmerman had apologized to the family of Trayvon Martin, the unarmed African-American teen that he shot on Feb. 26.

“I wanted to say I am sorry for the loss of your son,” Zimmerman said, addressing the Florida teen’s family. “I did not know if he was armed.”

Before Zimmerman’s testimony, his family said he is a caring, nonviolent man who organized a campaign on behalf of a homeless man who had been beaten and mentored an African-American boy for two years, his mother testified Friday during his bond hearing.

“I know that he is very protective of people, very protective of homeless people and also of children,” Gladys Zimmerman testified by telephone.

Zimmerman, 28, is accused of second-degree murder in Martin’s death.

Zimmerman went into hiding immediately after the shooting. Critics have accused him of racially profiling Martin and unjustly killing him.

His family testified Friday that the image is all wrong, saying earlier incidents of violence cited by prosecutors were misunderstandings or efforts to protect himself or a friend, and that he is no danger to the community.

“”I’ve never known him to be violent at all unless he was provoked, and then he would turn the other cheek,” Zimmerman’s father, Robert Zimmerman Sr. said.

The new judge in the case, Kenneth Lester Jr., presided at the bond hearing.

His wife and parents testified Friday that the family has few assets. They were unable to say how much money has been raised by Zimmerman’s online appeal for financial assistance.

Before his arrest, Zimmerman was hiding out of state but remained in touch with authorities, according to police in Sanford, Florida, where the shooting happened.

Natalie Jackson, an attorney for Martin’s family, told CNN legal analyst Sunny Hostin on Thursday that O’Mara called to set up a private meeting between Zimmerman and the Martin family. The family declined, Jackson said, indicating they want Zimmerman, instead, to give a deposition on what happened the night Martin was shot.

Although details of the shooting remain murky, what is known is that Martin ventured out from the home of his father’s fiancee Sanford and went to a nearby convenience store, where he bought a bag of Skittles and an Arizona Iced Tea.

On his way back, he had a confrontation with Zimmerman, who shot him.

Zimmerman had called 911 to complain about a suspicious person in the neighborhood, according to authorities.

In the call, Zimmerman said he was following Martin after the teen started to run, prompting the dispatcher to tell him, “We don’t need you to do that.” Zimmerman pursued Martin anyway but then said he lost sight of him.

According to an Orlando Sentinel story later confirmed by Sanford police, Zimmerman told authorities that after he briefly lost track of Martin, the teen approached him. After the two exchanged words, Zimmerman said, he reached for his cell phone, and then Martin punched him in the nose. Zimmerman said Martin pinned him to the ground and began slamming his head onto the sidewalk, leading to the shooting

Police have said Zimmerman was not immediately charged because there was no evidence to disprove his account that he’d acted in self-defense. A police report indicated he was bleeding from the nose and the back of his head

Sanford held what was termed a community healing meeting Thursday night.

For some Sanford residents, the Martin case has become a rallying cry, a chance to air what they believe are years of grievances and cases of injustice between the police, the courts and the black community. For others, it has forced them to defend their town as a place that is not inherently racist, a place where a young black man cannot be killed without consequence.

During the meeting, the city offered a plan to improve strained relations between police and the black community. The proposal includes a community relations commission, a blue-ribbon panel to represent community concerns, a diverse interfaith alliance and an anti-violence campaign.

Meanwhile, Florida authorities have picked 17 people to tackle a heated question brought on by the killing of Martin: whether the state’s “stand your ground law” should be changed.

The task force, whose membership was announced Thursday, will review the law that allows people to use deadly force when they feel a reasonable threat of death or serious injury.

via KTBS

Court of Appeals Reverses Koon: Medical Marijuana Users Beware

Here it is…the Court of Appeals issues its opinion in People v. Koon and keeping with their pattern, they have ruled against medical marijuana users and medical marijuana.

According to this [terrible] opinion, and despite the language in the Medical Marijuana Act (specifically, “under the influence”), ANY medical marijuana user that has ANY amount of THC in their system while driving is guilty of driving under the influence of a schedule 1 controlled substance – EVEN IF YOU ARE NOT IMPAIRED BY, OR UNDER THE INFLUENCE OF, THE THC.

Make no mistake, this case is in direct contradiction to the medical marijuana act, which requires the prosecution to prove that the driver is operating “under the influence.” The prosecution no longer has to prove this fact – ANY amount of THC will result in a conviction.

The Michigan Court of Appeals released the following opinion(s) on 4/17/2012.

/*************************************************
301443 PEOPLE OF MI V RODNEY LEE KOON
Panel: DHS PDO AK
Lower Court: GRAND TRAVERSE COUNTY CIRCUIT COURT, No. 2010-028194-AR
Opinion – Authored – Published (DHS)

http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/20120417_C301443_50_301443.OPN.PDF

STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION April 17, 2012

Plaintiff-Appellant, 9:05 a.m.

v No. 301443
Grand Traverse Circuit Court

RODNEY LEE KOON, LC No. 2010-028194-AR Defendant-Appellee.

Before: SAWYER, P.J., and O’CONNELL and RONAYNE KRAUSE, JJ. SAWYER, P.J.

This case presents the question whether the “zero tolerance” provision of MCL 257.625(8), which prohibits operating a motor vehicle with any amount of a Schedule 1 controlled substance in the driver’s body, still applies if the driver used marijuana under the Michigan Medical Marihuana Act (MMMA).1 We conclude that it does.

Defendant was pulled over for speeding 83 miles an hour in a 55 mile an hour zone. The arresting officer smelled intoxicants, and defendant admitted to having consumed one beer sometime within the last couple of hours. Defendant consented to a pat down of his person, voluntarily removed a pipe, and explained that he had a medical marijuana registry card and had last smoked marijuana five to six hours previously. A blood test showed that defendant had active THC in his system. Defendant was charged with operating a motor vehicle with a Schedule 1 controlled substance in his body2 under the “zero tolerance” law. The district court concluded that the MMMA protected defendant from prosecution under MCL 257.625(8), unless the prosecution could show that defendant was actually impaired by the presence of marijuana in his body. The circuit court affirmed and concluded that the MMMA supersedes the zero tolerance law. The prosecutor now appeals by leave granted.

This question can be resolved by looking to the pertinent statutory provisions and considering the basic rules of statutory construction. Like the interpretation of other statutes, our duty when analyzing an initiative law is to ascertain and effectuate the intent of the people,

1 MCL 333.26421 et seq. 2 MCL 257.625(8).

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presuming that the people meant what the statute plainly expresses, giving all words their ordinary and customary meaning as the voters would have understood them.3

MCL 257.625(8) provides as follows:

(8) A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person has in his or her body any amount of a controlled substance listed in schedule 1 under section 7212 of the public health code, 1978 PA 368, MCL 333.7212, or a rule promulgated under that section, or of a controlled substance described in section 7214(a)(iv) of the public health code, 1978 PA 368, MCL 333.7214.

Under MCL 333.7212(1)(c), marijuana remains a Schedule 1 controlled substance despite the passage of the MMMA.

Turning to the MMMA, MCL 333.26424(a) states in relevant part:

A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana . . . .

MCL 333.26423(e) defines “medical use” of marijuana as

the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.

The MMMA also recognizes a number of circumstances under which the medical use of marijuana is not permitted. One of those exceptions specifically states that the protections will not apply to operating a motor vehicle while under the influence of marijuana.4 Thus, the MMMA permits the medical use of marijuana, but it recognizes that the use of marijuana is inconsistent with engaging in some activities at the same time as the use of the marijuana. This is certainly not an irrational provision. For example, it is not uncommon for a medication, whether prescription or over the counter, to be accompanied by a warning not to drive while

3 People v Redden, 290 Mich App 65, 76; 799 NW2d 184 (2010). 4 MCL 333.26427(b)(4).

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using the medication. The problem that develops in this case is that, while MCL 333.26423 defines a number of terms used in the MMMA, it does not define the phrase “under the influence of marijuana.”

What we are left with is the MMMA, which affords a certain degree of immunity from prosecution for possession or use of marijuana for a medical purpose, and the Michigan Motor Vehicle Code, which prohibits operating a motor vehicle while there is any amount of marijuana in the driver’s system. These two provisions are not in conflict. The MMMA (or the Legislature) could have rescheduled marijuana to one of the other schedules. But it did not. Therefore, marijuana remains a Schedule 1 controlled substance. Furthermore, while the MMMA does not provide a definition of “under the influence of marijuana,” MCL 257.625(8) essentially does, establishing that any amount of a Schedule 1 controlled substance, including marijuana, sufficiently influences a person’s driving ability to the extent that the person should not be permitted to drive.

In order to conclude that the MMMA authorizes the operation of a motor vehicle with some marijuana in the driver’s system, we would have to supply a definition of “under the influence of marihuana” under MCL 333.26427(b)(4) that conflicts with the provisions of MCL 257.625(8). To do so, we would have to conclude that the MMMA repeals by implication MCL 257.625(8) as applied to marijuana. But it is well established that repeal by implication is disfavored.5 To do so, there must be a clear legislative intent to repeal, and there must not be another reasonable construction.6

But there is a reasonable construction: the Legislature has determined that it is illegal to operate a motor vehicle with any amount of marijuana in the driver’s system. Moreover, this is not in conflict with the MMMA. Not only does the MMMA not extend its protections of the medical use of marijuana to operating a motor vehicle while under the influence of marijuana, but it also recognizes other circumstances in which the medical use of marijuana is not permitted by the MMMA. For example, any medical use of marijuana is not permitted on a school bus, nor does it permit smoking marijuana, even for medical use, on public transportation.7

Indeed, this points out one of the flaws in the argument that defendant has the right to “internally possess” marijuana while driving. While the MMMA does include the term “internal possession” within its definition of “medical use,” that does not equate to a right to internally possess marijuana under any circumstance. As noted above, the MMMA specifically does not permit any medical use of marijuana on a school bus, which presumably includes even internal possession. Similarly, under other circumstances, some, but not all, types of medical use of marijuana is permitted; the example here being that of public transportation, where one can presumably internally possess it, but not smoke it.

5 Wayne Co Prosecutor v Dep’t of Corrections, 451 Mich 569, 576; 548 NW2d 900 (1996). 6 Id.
7 MCL 333.26427(b)(2)(A) and (3)(A).

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Furthermore, the MMMA does not codify a right to use marijuana; instead, it merely provides a procedure through which seriously ill individuals using marijuana for its palliative effects can be identified and protected from prosecution under state law. Although these individuals are still violating the law by using marijuana, the MMMA sets forth particular circumstances under which they will not be arrested or otherwise prosecuted for their lawbreaking.8 In other words, the act grants immunity from arrest and prosecution, rather than the granting of a right. Thus, contrary to defendant’s claim, he does not have a blanket right to internally possess medical marijuana.9

The point being that the MMMA does not permit all types of medical use of marijuana under all circumstances. There are circumstances under which some uses are permitted and others under which no use is permitted. If the drafters of the MMMA wanted to include immunity for the operation of a motor vehicle in section 4, the act would have to have an explicit grant of immunity either in MCL 333.26424(a) or in MCL 333.26423(e). It does not. Indeed, it explicitly does not permit the operation of a motor vehicle while under the influence of marijuana. And in the Motor Vehicle Code, the Legislature has provided a definition of what constitutes being under the influence of marijuana: the presence of any amount of a Schedule 1 controlled substance, including marijuana. That is to say, while “internally possessing” it.

The MMMA does not provide a protection against prosecution for violating MCL 257.625(8). Driving is a particularly dangerous activity; Schedule 1 substances are considered particularly inimical to a drivers’ ability to remain in maximally safe control of their vehicles; and the danger of failing to do so affects not only the driver, but anyone else in the vicinity.

For these reasons, defendant was properly charged with a violation of MCL 257.625(8) and CJI2d 15.3a may be given at any trial in this case.

8 See People v King, 291 Mich App 503, 507-509; 804 NW2d 911 (2011), lv gtd 489 Mich 957 (2011); see also Casias v Wal-Mart Stores, Inc, 764 F Supp 2d 914, 922 (WD Mich, 2011).

9 Defendant contends that the MMMA grants him the “right” to “internally possess” marijuana and, therefore, as long as he does not break any other laws, he can go about his day-to-day activities, including operating a motor vehicle. Defendant further argues that as long as the marijuana does not affect his ability to operate a motor vehicle, he is immune from prosecution. Like most individuals, defendant misconstrues the MMMA. The MMMA does not codify a right to use marijuana, nor does it grant any citizen the “right” to use or possess marijuana. While this may seem strange to anyone who has encountered the act, it is the process set up by what many have referred to as an inartfully drafted act. What the MMMA does is set up a process where certain individuals cannot be arrested or prosecuted for their law-breaking. These protections, or immunities from lawbreaking, are very limited in scope. In essence, defendant is asking this Court to extend these protections to other activities, such as operating a motor vehicle, a boat, or an airplane. We respectfully decline; it is the Legislature’s job to expand the law, not the court’s responsibility.

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Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ David H. Sawyer
/s/ Peter D. O’Connell /s/ Amy Ronayne Krause

How easy is it to get expert witness credentials?

How easy is it to get expert witness credentials? It turns out…a lot easier than you’d think. An MSNBC expose revealed that one of the leading forensic expert credentialing services requires nothing more than 1) a fee, 2) an application, and 3) watching a video followed by an open book quiz.

http://openchannel.msnbc.msn.com/_news/2012/04/17/11248694-no-forensic-background-no-problem?lite

Their reporter, without any expertise whatsoever, paid the fee, watches the video and took the open book quiz. After passing, he got a certification and expert witness credentials. This same organization has credentialed prisoners, a dog and a child…

Soft or unworthy expert witnesses are destroying the system. They invade our courtrooms and cases and sway jurors and judges to reach unjust results. I wonder who else in our system has earned their credentials this easily? Hmmm…

Neil Rockind, P.C.’s NEW Law Clerk – Cassi Baumgardner!

Last month Neil Rockind, P.C. hired Cassi Baumgardner as a law clerk for the spring and summer of 2012! Cassi is currently a 2nd year student at Michigan State University College of Law.

Despite the fact that Neil and I are die-hard Michigan fans, we are looking forward to working with Cassi for the next few months, while she finishes up her 2nd year of law school. Cassi will be clerking full time starting in May and will be doing everything from answering phones to working on complicated motions, briefs and sentencing memos. If she’s lucky she may even be able to participate in/watch a trial or 2!

Welcome to the team Cassi!

– Colin Daniels