Michigan Criminal Lawyer Blog

Operating Under the Influence in Michigan: The ‘Koon’ Decision a Reminder of ‘Zero Tolerance” Approach to Drugs and Driving

May 3, 2012 | Abdo Law Firm

www.abdolaw.com.jpg The recent Court of Appeals case, People v. Koon (which can be read in its entirety here), illustrates how Michigan deals with drugged driving. Oftentimes clients are under the misguided impression that a prescription or a medical marijuana card offers them immunity from prosecution for operating a vehicle while intoxicated. However, Michigan law has two provisions to deal with this. For Schedule 1 narcotics (cocaine, heroin, ecstasy, for example) where there is ‘any amount’ of the illicit substance the driver can be convicted. Alternatively, impairment must be proven where a client is charged with driving under the influence of a prescribed medication.

The Koon case deals with 3 issues; 1) the ‘any amount’ provision of MCL 257.625(8); 2) Michigan’s Medical Marijuana Act; and 3) marijuana that was ingested hours before the defendant operated the automobile. In this instance, the defendant had a medical marijuana card and had used marijuana five to six hours before driving his automobile. Nonetheless, marijuana’s active ingredient THC, which can remain in one’s system for weeks after it’s ingested, showed up in Mr. Koon’s blood. Both the District Court and Circuit Court held that the Medical Marijuana Act was a defense to the zero tolerance law. Unfortunate for Mr. Koon and other card holders, the Court of Appeals did not.

The opinion, which I recommend those visiting this blog take the time read (it’s not too complicated), reasons that the Michigan Medical Marijuana Act does not carve out an exception to the ‘any presence’ law. The MMMA does not reschedule marijuana (it remains Schedule 1) and further specifically states there are no protections for those driving under the influence of marijuana. The issue may be taken up with the State Supreme Court in the future.

What are the takeaways from this case? Most specifically as it pertains to marijuana card holders, they remain at risk driving long after they ingest marijuana. The result does seem harsh given that THC can remain in one’s system for weeks after it is initially used. Nonetheless, this seems to shed some light on the way Courts are interpreting that law. Further, this should serve as a reminder that the State does not take lightly to drugged driving. If you are being prosecuted for operating an automobile under the influence of any drug, a marijuana card or a valid prescription does not offer blanket protection. This is likely an issue that will continue to take shape in the Legislature and Court of Appeals over the coming years.
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What to Expect If You Get Charged With A High Blood Alcohol Level OWI (.17% or greater); An Update on Super Drunk Cases Since 2010

May 2, 2012 | Abdo Law Firm

Michigan’s “Super Drunk” law has been on the books since October 31, 2010. If you do not already know, this law imposes harsh punishment and license sanctions for anyone convicted of a drinking and driving offense in Michigan with a blood alcohol content (BAC) of .17% or greater. The noteworthy penalties for a “Super Drunk” or “High BAC” conviction are as follows:

6 points,
$1,000.00 per year driver responsibility fee for 2 years,
1 year license sanctions as follows: 45 day hard suspension of license (NO DRIVING) followed by 320 days restricted license with ignition interlock upon approval by Secretary of State,
Up to 180 days in jail,
Any violation of the ignition interlock will result in additional mandatory license sanctions (another 45 day hard suspension followed by 320 days of restrictions.

Click for link to Michigan Secretary of State website for all drinking and driving penalties.

I never really liked the label “Super Drunk” based upon the simple truth that a person who consumes alcohol and has a BAC of .16% could be branded as a “Super Drunk” by consuming one more sip of a drink. Other factors which influence the BAC are metabolism and the passage of time. Females also tend to have higher BAC levels based upon same variables as men (body weight and number of drinks consumed).

Super Drunk or High BAC Clients Face Policy Against Plea Bargaining

Most counties now have a policy against reduction, or plea bargaining, of High BAC cases to lower drinking and driving crimes. However, we have handled several Super Drunk, or High BAC cases as I prefer to call them, since its passage in 2010. We have had success in avoiding a High BAC convictions in many cases where the factors are in our favor. Our consultations with clients charged with a drinking and driving offense includes: an analysis of the drinking and driving incident and detailed background of our client (education, employment, children, substance abuse history).

In my opinion, the ideal candidate for consideration of a plea bargain to a lesser offense (such as Operating While Intoxicated or Impaired Driving):

Does not have a criminal record, especially involving drinking and driving,
Was not involved in an accident, especially an accident involving injuries,
Is willing to attend counseling before the court orders the individual to do so,
Was cooperative with the arresting law enforcement agency.

Typical High BAC cases cannot be reduced without a policy deviation approved by the prosecuting attorney. A deviation request is made by exposing weaknesses in the case and by providing the prosecuting attorney with positive information regarding our client. When a deviation request is made, the case may take several court appearances before a response is obtained as to whether the deviation is approved or denied. If a deviation request is denied, the case can be set for trial or motion hearings to attack the traffic stop or other aspects of the case such as technical aspects of the blood alcohol testing equipment.
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Oakland Mall and Somerset Collection Retail Fraud Cases and the 52-4 District Court in Troy, Michigan

May 1, 2012 | Abdo Law Firm

troy court.jpg

The City of Troy is one of Michigan’s premier cities for commercial office space, hotel space, upscale housing, restaurants and retail establishments. Yet Troy remains one of the safest cities in Michigan according to a 2011 report. The government complex, located off Big Beaver Road and I-75, is where you will find the 52-4 District Court and the Troy Police Department which I can say are proactive when it comes to maintaining this reputation of Troy.

While Troy is considered a safe city as far as violent serious crimes are concerned, Troy gets it share of retail fraud cases which occur at the major retail shopping destinations which include the Oakland Mall and the Somerset Collection. These malls are among the busiest in the State of Michigan and retail fraud is not a crime that will be treated lightly by the Judges at the 52-4 District Court.

Retail fraud is classified by the degree of seriousness and whether the offender has a prior record. Retail fraud in the first degree is a felony which can carry 5 years in prison. Retail fraud in the second or third degree are misdemeanors:

Retail fraud in the second degree is a misdemeanor where the property stolen has a value of $200.00 but less than $1,000.00. It is punishable by imprisonment for not more than 1 year or a fine of not more than $2,000.00 or 3 times the value of the difference in price, property stolen, or money or property obtained or attempted to be obtained, whichever is greater, or both imprisonment and a fine.

Retail fraud in the third degree is a misdemeanor where the value of property stolen has a value less than $200.00. It is punishable by imprisonment for not more than 93 days or a fine of not more than $500.00 or 3 times the value of the difference in price, property stolen, or money or property obtained or attempted to be obtained, whichever is greater, or both imprisonment and a fine.

The ultimate goal which we seek for our clients is the avoidance of a retail fraud conviction. Such a conviction is a mark of dishonesty on a person’s permanent criminal record. Fortunately, our experience in handling retail fraud cases in Troy has been positive as far as first offenders are concerned. The same is also true in other venues with major retail establishments where we practice including all of the district courts in Macomb County such as Sterling Heights and Clinton Township. In this regard, we attempt to utilize special provisions of law such as HYTA (Youthful Trainee Status for offenders age 17 and under age 21), Delayed Sentence (MCL 771.1) or the First Offender Program to gain a dismissal of the conviction. Absent aggravating circumstances, these provisions are available upon getting concurrence from the prosecuting attorney, probation department and the Judge at the time of sentencing.

I will explain the court process for someone who obtains a first offense misdemeanor retail fraud.

Pretrial Conference: After arraignment, a retail fraud case will be scheduled for a pretrial conference. It is at this stage where a criminal defense attorney will negotiate with the prosecuting attorney for a recommendation that the case be considered for a dismissal pursuant to one of the available provisions as I mentioned in the previous paragraph (HYTA, Delayed Sentence, First Offender Program). A disposition pursuant to this course of action will avoid trial but mean that the person will have to admit to the offense of retail fraud.

Pre-sentence Report: After the pretrial conference, a person will be required to be interviewed by the probation department. The 52-4 District Court has its own probation department (52-4 District Court Probation Department link) located inside of the court building. Our attorneys like to have our clients well prepared for this interview because the probation department can recommend for, or against, the client getting a deal which can mean a dismissal.

Sentence: At the time of sentence, we will be able to review the report prepared by the probation department. The Judge has the final say as to whether a person will be given the opportunity to have the conviction dismissed. When the Judge grants disposition pursuant to HYTA, MCL 771.1 or the First Offender Program, an offender can expect to be placed on probation for at least one (1) year, along with fines, court costs and other conditions. Other conditions may include a retail fraud class, community service and testing for illegal substances and alcohol.

If the person complies with the conditions ordered by the Court, the conviction will be dismissed at the end of probation. Upon failure to comply, the person will face a probation violation hearing and possible sanctions which include jail and placing the conviction on one’s record!
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Addressing Special Concerns of Selfridge Air National Guard Reserves and Personnel Charged With Criminal Offenses

April 26, 2012 | Abdo Law Firm

Selfridge Air National Guard Base (SANG) is one of the oldest military air fields in the United States. It is located in the Township of Harrison, County of Macomb and is situated on prime Lake St. Clair property. Approximately 6000 air and army national guard, as well as civilian employees, are employed and/or housed at the SANG base. There are numerous units assigned to SANG including the 127th Wing (Michigan Air National Guard), customs and border protection and the Coast Guard.

There are many SANG military personnel who are married, live on or off base, and are residents of a state other than Michigan. Our attorneys have represented SANG military personnel for numerous legal matters including drinking offenses (drinking and driving), domestic violence, assault crimes, drug crimes and retail fraud (shoplifting). Anyone in the military who is charged with a criminal offense faces special circumstances which we are prepared to defend. We understand that when a military person (reserved or enlisted) gets into trouble, he or she faces possible rank demotion, loss of security clearance and/or dishonorable discharge from military service upon conviction for a criminal offense.

When a military person becomes a client of our firm, we are aware of their special needs and potential consequences. Certain convictions may be detrimental to a military career. There are other ramifications such as travel restrictions and possible incarceration. When a drinking a driving (DUI or OWI) is charged, the issue may be less compelling and only involve the driver license sanctions for a non-resident. Our job is to identify the needs of our military clients and address these particular needs and concerns. For example, a recent client who was charged with domestic violence needed permission to travel out of the state and the country. The case was resolved favorably whereby the case will be deferred and dismissed after a period of probation. The Judge also granted permission for our client to travel out of state and out of the county.

The Right to Act in Self Defense and Michigan’s Stand Your Ground Law

April 16, 2012 | Abdo Law Firm

Assaultive conduct or deadly force will be particularly scrutinized by law enforcement officers and prosecutors for possible criminal charges. Under certain circumstances, an act of assault may be excused or defended if the use of force was based upon justifiable self-defense. The following is a list of assault crimes in Michigan:

Assault and Battery
Aggravated Assault

The 80 Hour (EtG) Alcohol Test. Reliable or Unreliable?

March 30, 2012 | Abdo Law Firm

etg test.jpg

What is EtG?

Ethyl Glucuronide (EtG) is a metabolite of beverage alcohol (ethanol), which means that it is used by the body to break down alcohol in the system. According to the drugtestingnetwork.com, the presence of EtG is a conclusive sign of recent alcohol consumption.

What is an EtG Test?

The EtG test, which can be implemented by a Court for a variety of reasons, is able to detect alcohol in a person’s system when a standard breathalyzer is not sufficient. Ethyl Glucuronide is detectable for up to 80 hours after an individual stops drinking, but can vary depending upon the person’s metabolism and the amount of alcohol that was consumed.

The EtG Testing Process (provided by uatests.com, a testing facility)
EtG testing is a process similar to other lab-based drugs of abuse testing. The following steps are typically followed:
Step 1: A chain of custody form is completed
Step 2: The subject voids into a standard collection cup. The temperature of the urine is checked, using a temperature strip on the collection cup, to assure it is a valid sample.
Step 3: A urine specimen syringe device is used to collect a sample of the urine.
Step 4: The syringe device, and related paperwork are sent to the lab. This is easier, cleaner and less expensive than sending a bottle of urine.
Step 5: The test samples are shipped to the lab. The most economical and effective method of getting your sample to the lab will depend on your location.
Step 6: Results are typically reported within three days of receipt at the lab.

Why is the EtG test ordered?

Individuals on probation for a criminal offense are sometimes subjected to random alcohol testing, which dictates that they blow into a portable breathalyzer. This test will only show the alcohol (ethyl alcohol) which remains in the bloodstream and is expelled as vapor from the lungs. Therefore, this test will only give information on whether or not the individual has drank alcohol within hours of taking the test.

Under certain circumstances the Court will order an EtG test for someone who is prohibited by law from consuming alcohol, based on an alcohol-related offense (usually drunk driving). The test is also used to screen for drinking problems, intervention evaluation, employment purposes and to motivate changes in drinking behavior.

Is the EtG Test reliable?

According to the Substance Abuse and Mental Health Service Administration, the EtG test is inaccurate and may actually be unreliable. The SAMHSA discusses the test’s sensitivity to even small amounts of alcohol that can be present in daily-use items. Examples include hand sanitizer, hair spray, laundry detergent, aftershave and even some cosmetic items. The information provided in the SAMHSA advisory notice led the U.S. Department of Health to deem the test “experimental”. The EtG test can produce positive results when an individual is simply exposed to any number of products which contain ethanol.

Despite EtG testing’s scientific unreliability, the test continues to be widely-used across the country. For this reason, our law firm is against the use of EtG tests.
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Michigan Retail Fraud and Larceny Crimes Require an Intent to Steal. You Can Be Arrested For Larceny Even If You Have Not Left the Store!

March 16, 2012 | Abdo Law Firm

woman shoplifter.jpg Also known as shoplifting, retail fraud consists of a person intending to permanently deprive the lawful owner of the merchandise, whether by fraud or by taking. It is a common belief that you must leave the store with the merchandise in order to be charged and convicted of retail fraud/shoplifting. In truth, a person may be charged and convicted of retail fraud without ever exiting the store. In addition, other conduct which constitutes retail fraud is as follows:

Price tag switching
Altering price tags

Interlock Ignition Devices: What They Are and How They Work

February 28, 2012 | Abdo Law Firm

interlock ignition device.jpg

In Michigan, a common sanction by both the courts and the Secretary of State is the required installation of an interlock ignition device on the defendant’s (or petitioner’s) automobile. Colloquially referred to as a ‘blow and go’, these devices can be a tremendous headache for those required to install them. In our experience, there are a number of situations where these devices are compelled to be installed on our clients’ vehicles. These scenarios include;

– A ‘superdrunk’ conviction,
– Certain drunk driving convictions with aggravating circumstances,
– As a mandatory condition of a restricted license upon a successful license appeal,
– And certain crimes which may have resulted from an underlying drinking problem.

1) What is an interlock ignition device?

The cell-phone sized device is installed so it connects to an automobile’s ignition system, usually inside of the glove compartment. After installation, the driver is must blow into the device before the car will start.

2) Where can these devices be installed and how much do they cost?

Many locations in Southeast Michigan offer install services for the ignition interlock device:

American Interlock 800.580.0504 Michigan Interlock, LLC 888.786.7384 National Interlock Service 888.294.7002
New Horizon Interlock, Inc 800.597.5054 Smart Start Michigan 888.234.0198
Prices vary from company to company, but range from $50 to $200, based upon the make and model of the car. The device also holds a monthly rental fee, which can be as high as $100.00.

3) How do these devices work?

According to igntioninterlockdevice.org, the driver blows about 1.5 litres of air into the device, which is located on the car’s dashboard. Drivers can also be subjected to “rolling tests”, which require the driver to use the device once the car is moving. If the driver fails one of these “rolling tests” the device sounds a warning, which may consist of flashing lights or honking horn and will sound until the ignition is turned off (the ignition will not automatically shut off while moving). Each device contains a computer chip, which requires monthly downloads. The information is sent to the overseeing court and analyzed for blood alcohol content levels as well as attempts at tampering with the device.

4) When required by the State in a driver’s license restoration case, what will result in a violation?

The State of Michigan has divided violations into two main categories:

Minor Violations

-After the trial period, the driver fails three start-up tests (car will not start)
-If the driver fails to have the device serviced within 7 days of his/her scheduled date
Major Violations

-Failure of a “rolling test”, which is either failing to take the test when prompted or the result is greater than 0.25% and a subsequent sample is greater than 0.25%
-An arrest or conviction for drunk/drugged driving -Tampering with the Blood Alcohol Ignition Interlocking Device -Circumventing the device, by allowing a passenger to blow into the device -Three minor violations within the monitoring time (required time for device to be installed)
-Removing the device without having it re-installed within 7 days (unless Secretary of State approves)
-Operating a vehicle without a properly installed device
In the State of Michigan, a minor violation will result in a three-month extension before another driving license appeal can be requested. Major violations will cause the original driver’s license revocation to be immediately reinstated, which means the driver will no longer be able to operate any vehicle, even with an ignition interlock device installed.

5) Are these devices reliable?

Despite widespread implementation of ignition interlock devices many have doubts as to their reliability. Significant issues arise out of false positive results, which could be caused be a number of daily-use products. They include mouthwash (because of its minimal alcohol content), some medicines, and even some beverages.
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Tired Explanations Part 1: Cough Syrup, Second Hand Marijuana Smoke, and Other Excuses That Don’t Hold Up In Court

January 20, 2012 | Abdo Law Firm

If you spend enough time in the back of a court room you will hear a few common explanations for positive drug and alcohol tests. Often when faced with a probation violation (or show cause while on bond, or if you are appealing to get your license back) defendants/petitioners will attempt to offer an innocent reason for their positive test. What defendants often do not know, that practicing attorneys do, is that Judges have heard it all. While our strategy varies from case to case – we advise that our clients NEVER* to use the following explanations when standing in judgment. Probation violation hearings are oftentimes much more serious than the underlying charge, as the Court will view the defendant as somebody who has been unable to prove themselves. Further, the sentencing Judge has the authority to sentence defendants to the maximum term of incarceration for the underlying charge. Beneath are some common excuses that come up in court. I’ve done some basic research into each of these explanations to see if they are at all supported by science, unfortunately it seems that they are not.

Excuse #1: ‘It Was Secondhand Marijuana Smoke’

When defendants test positive for THC they will sometimes tell the Judge that it was merely secondhand smoke. The Wikipedia page on drug tests (which has a wealth of other relevant information) states that “[t]his legend is technically true but highly misleading.” In order for a test to be positive from secondhand smoke one would have to be in a small unventilated space for hours with marijuana smokers. Based on this, it seems that somebody who is by marijuana smoke for a short amount of time would not have THC levels to yield a positive test. The possibility of a positive test aside, Judges hear this excuse all of the time and know it is just that. Dishonesty will always put you in a worse position than where you started.

Excuse #2: ‘The Cocaine Seeped Through My Skin’

Though a somewhat more isolated excuse, this still comes up time and time again. Karch’s Pathology of Drug Abuse indicates that a positive drug test from this type of exposure is unlikely unless dealing with a large quantity of cocaine. No surprise that Judges do not buy into this explanation. Beyond the fact that it most likely isn’t true, there isn’t a solid legal reason to be handling a large quantity of cocaine. As advised above, this is a defense that will get you nowhere and if anything will set you back should you use it before a Judge.

Excuse #3: ‘I Was Drinking Cough Syrup’

Perhaps the most common of all of the excuses, when defendants test positive for alcohol they often say that it is from drinking cough syrup. I couldn’t figure out the exact amount, but alcohol is listed as an inactive ingredient in Nyquil. Some sources stated as low as 10% and some as high as 25%. Nyquil can cause a positive alcohol test. However, it would seem that one would need to drink a large quantity to have a positive BAC or drink cough syrup immediately before blowing. MOST OF THE TIME, this excuse does not hold up. Oftentimes Judges see through this smoke screen and view the defendant as being dishonest and uncooperative. Further, a term of probation is typically no consumption of alcohol, because there is alcohol in some cough syrup this is a straightforward violation. HOWEVER, in some instances (specifically in license appeals at the DLAD) we have been successful in bringing this defense where there is corroborating evidence and/or a doctor’s note.
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Federal Criminal Cases In Michigan

January 4, 2012 | Abdo Law Firm

fbi-4-30-09[1].jpg In the United States, there are crimes which may be prosecuted at the State level based upon violations of State laws. A Federal crime is one which involves a violation of a Federal law. Many criminal offenses may fall under the jurisdiction of both the State and Federal laws and either or both branches of government may prosecute. The doctrine of double jeopardy does not preclude both State and Federal prosecutions under the doctrine of dual sovereignty.

There are literally thousands of Federal laws. Many Federal crimes are listed in Title 18 of the United States Code. In addition, there are several Federal agencies with authority to investigate Federal offenses including: Federal Bureau of Investigations (FBI), Drug Enforcement Agency (DEA), Alcohol Tobacco and Firearms (ATF), United States Marshal Service (USMC), United States Secret Service, Immigration and Customs Enforcement, United States Postal Inspection Service and Homeland Security. Postal Inspectors investigate any crime in which the U.S. Mail is used to further a crime by use of the mail, telephone, or on the Internet (mailfraud).

In Michigan,United States Districts Courts (Federal courts) are located in Detroit (Eastern District), Lansing, Grand Rapids, Ann Arbor, Port Huron, Flint and the upper peninsula. Federal criminal defense attorneys are required to adhere to the Federal Court Rules. The formalities, procedure, sentence guidelines and process of the Federal courts are inherently stricter than the State courts. All of this means that anyone faced with a Federal criminal investigation or Federal criminal charge(s) should retain a qualified Federal criminal defense lawyer.