Category Archives: Michigan Court of Appeals

The Law Is Changing

62 percent.   A baseball player would make the All-Star game if he hit 31 percent of the time that he came to the plate.  62 percent — unheard of.   So when the Michigan Medical Marijuana Ballot Initiative passed in 2008 with 63 percent of the vote, the margin of victory and support was considered overwhelming.  It seemed that the controversy would be over and the issue put to rest.  But then an odd thing happened, the government fought back.  You read that right . . . the government fought back.   City councils, mayors, city attorneys, judges, prosecutors, police officers, etc. have resisted the MMMA.  Why?  For a year, I’ve been listening to the likes of the Hon. Jessica Cooper, the Oakland County Prosecutor, or others like Oakland County Sheriff Michael Bouchard or others talk about how the general public, i.e., the voters, didn’t know that the bill would lead to this law.  I have been saying that these politicians don’t know what they’re talking about —  the public support has never waned or wanted on this measure.  So when one year later, after all of the press, media, reports, criticisms, complaints and claims of abuse, does the public still support the measure?  Yes.  And still by 61 percent of the population.  61 percent!  Did any of elected officials, city attorneys or others acknowledge this poll result?  No.

I bet not one ever received 61 percent of the vote for anything.   So of course, none of them know what its like to be that supported… regardless, I remain stunned at the level of hostility that the government reveals towards this law.  I know why I do what I do?  I defend.  I fight the government.  I unite families.  I bring parents home to their children and families.   I liberate.

Government officials:  why do you do what you do?

The times they are changing and NRPC, Neil Rockind, P.C. is leading the way.  The law is changing in other parts of the country, including possibly Massachusetts and New York.  Here’s a link.  Contact Officials – NORML.

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DEA Hypocrisy — Read This!

Reporter Mike Riggs at The Daily Caller has an important story online today revealing how U.S. Drug Enforcement Administration officials are making plans to reschedule natural THC under federal law.

Under the plan, THC derived from the marijuana plant would be classified as a Schedule III controlled substance, while the plant itself would remain classified as a Schedule I illegal drug. Sound fishy? It is.

As a DEA spokesperson quoted in the story explains, “THC, natural or synthetic, remains a schedule I controlled substance. Under the proposed rule, in those instances in the future where FDA might approve a generic version of Marinol, that version of the drug will be in the same schedule as the brand name version of the drug,regardless of whether the THC used in the generic version was synthesized by man or derived from the cannabis plant.”

So, in other words, if a pharmaceutical product contains THC extracted from the marijuana plant, that would be a legal commodity. But if you or I possessed THC extracted from the marijuana plant, that an remains illegal commodity.

Wait, it gets even more absurd.

Since the cannabis plant itself will remain illegal under federal law, then from whom precisely could Big Pharma legally obtain their soon-to-be legal THC extracts? There’s only one answer: The federal government’slone legally licensed marijuana cultivator, The University of Mississippi at Oxford, which already has the licensing agreements with the pharmaceutical industry in hand.

Riggs writes:

In other words, THC in plant form or as an extract, will still be illegal. What won’t be illegal is if a pharmaceutical company buys THC from a government-licensed provider, puts it in a pill, receives the DEA’s stamp of approval, and sells it a price that will likely be far higher than the price of marijuana.

Armentano said such circular reasoning is a product of decades of hostility towards marijuana research.

“This is the insane rationale necessary for banning medical marijuana,” he said. “Take away the prohibition and the political elements, and you would never have the stretching of logic necessary to pass organic THC but only if it mimics Marinol.”

Expect the DEA’s ’stretching of logic’ to become even more absurd in the future.

You can read the entire Daily Caller story, “Is the DEA legalizing THC?,”here.

 

Courts Taketh Away, People Giveth . . . A Lesson About Juries

I count Michael Komorn amongst my good friends.  He is the same Michael Komorn who is a board member of the Michigan Medical Marijuana Association. We share several things in common:  we both grew up in metro Detroit, grew up in the small Jewish community, married local girls, have young children and live locally.  We are both vegan.  And we are both lawyers.  I have taken a lead role in the defense of the Herbal Remedies/Everybody’s Cafe Case o/k/a the Waterford Medical Marijuana case.  He represents someone in this case as well.

Foxholes Form Friendships

Together he and I have been in the foxhole of the defense of the medical marijuana community.  A friendship.  A bond is formed in battle.  We have certainly formed one.  So as I was reading another disappointing Court of Appeals decision on Medical Marijuana in a case that my office did not handle and received an uplifting text from Michael:

slayed the dragon was the subject.

I knew what it meant.  Mike had been in a slugfest of a trial in Livingston County. The trial was hard.  The rulings seemed maddening.  A case involving a claim that a patient was using medical marijuana and had the remnants of THC in his system should include discussions about the medical marijuana registry card, the patients condition, the legality of the medical use, etc?  According to Mike, no . . . the Court disagreed — none of those things was relevant.  Yet, the jury, Mike relayed, saw the truth — his client was found Not Guilty.  Amen.  Kudos to Mike. But his victory speaks to a bigger issue —

Hostility from the Bench, Law Enforcement

The bench, bar, law enforcement, judiciary seem to be so hostile to this law.  Why?  What is it about this plant?  This weed?  The people who swear by it that drives the political powers that be so nuts!  Oxycontin vs Marijuana.  If forced dot choose, they’d select Oxycontin.   In my opinion, a “legal” drug that appears more addictive and dangerous than crack.  I don’t know . . . but the hostility is there.  I fight it everyday.  I am a Michigan Medical Marijuana Lawyer.  I am a high profile lawyer — hostility, criticism, envy, jealousy and a desire by the powers that be to bring me down or make an example of me is anticipated.  But patients deserve better.

The Michigan Court of Appeals ruled in People v King that an enclosed, locked area does not include an enclosed, locked pen in King’s private, locked backyard.  Don’t ask me . . . rather than analyze King’s intent, the COA micro-analyzed each individual word in the MMMA and ruled against him.  Sad.  The lesson —

I believe in people.  Citizens judges.  Not jaded.  Interested in the human story.  Interested in Justice and the right result.  The jury saw the justice in Mike’s argument.  The jury saw the injustice in the charges that Mike’s client was facing.  G-d bless juries and the jury trial.  G-dspeed Mike and thank you for reminding us why jury trials are so important.

Neil Rockind gets a NOT GUILTY at a drunk driving trial in the 48th District Court!

3 years ago Neil Rockind began representing Randolph Fawkes, who was charged with Operating while Intoxicated in the 48th District Court. For those that don’t know about the stigma surrounding the 48th District Court, it is known as one of the toughest drunk driving courts in Michigan; the judges routinely send 1st offenders to jail.

3 years ago, Neil Rockind, P.C. filed a motion challenging the stop of Fawkes’ vehicle. Judge Diane D’Agostini ultimately ruled that the stop and arrest of Fawkes was legal. Neil Rockind, P.C., believed that Judge D’Agostini was wrong and filed an appeal with the Oakland Circuit Court. Eventually Judge Nancy Grant in the Oakland Circuit Court determined that the stop and arrest of Fawkes was indeed illegal and ordered the suppression of all illegally obtained evidence, including Fawkes’ blood draw result, which was a .09 BAC. The prosecutor, not content with Judge Grant’s decision, appealed to the Michigan Court of Appeals. Following oral arguments, the Court of Appeals reversed Judge Grant’s decision and allowed the evidence back in, including the .09 BAC blood result.

The case was then set for trial – 3 years after the initiation of charges. The prosecutor, in an attempt to avoid trial, offered the charge of Operating While Visibly Impaired, which is a lesser drunk driving offense. However, we were fully aware that such an offer was standard and told him that Fawkes was not interested.

On September 21st, 2010, People v. Fawkes went to trial. Jury selection took place on the 21st and the trial lasted two days: the 22nd and 23rd of September. Over the course of the 3 day trial, the prosecution called 4 witnesses: the police officer that effectuated the stop of Fawkes’ vehicle, the doctor that withdrew Fawkes’ blood, the evidence technician at the Michigan State Police Forensic Laboratory (who testified as an expert), and Felix Adatsi – the head of Michigan State Police Forensic Laboratory (who also testified as an expert).

At the end of the prosecution’s proofs, several things were extremely apparent:

  1. The police officer had stopped Fawkes for no reason;
  2. The police officer had intentionally mis-stated information in the affidavit for the search warrant to withdraw Fawkes’ blood (i.e. he stated in the affidavit that Fawkes’ eyes were bloodshot, however he testified that they were not bloodshot);
  3. The doctor that withdrew Fawkes’ blood had not followed protocol re: the preservation of the blood samples – resulting in tainted samples;
  4. The evidence technician that actually tested the blood samples had done nothing to ensure that the samples were taint-free; instead she simple assumed that they were preserved correctly; and
  5. Felix Adatsi admitted that it was possible that at the time that Fawkes had been pulled over he may have only had a BAC of .04 or .05.

Taking all of this into consideration, the 6 person jury returned with a verdict and uttered the two most beautiful words in the English language: NOT GUILTY!

Despite 4 witnesses, including 2 expert witnesses, 2 days of trial and and blood alcohol level of .09, which is above the legal limit, Fawkes was found Not Guilty of drunk driving in one of the toughest drunk driving courts in Michigan. And he could not have done it without Neil Rockind and his many years of drunk driving expertise.

Neil Rockind, P.C. is extremely experienced in handling all types of driving offenses, including drunk driving and driving under the influence of drugs. If you or a loved one is faced with any type of driving offense, or an investigation by any policing agency regarding such a violation, please contact Neil Rockind, P.C. at jmellas@rockindpc.com or call our office directly at 248-208-3800 to schedule a free consultation!