Felony charges dismissed this morning – no trial next week!

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Medical Marijuana and Impaired Driving – Problems with Enforcement

As more and more states jump on the bandwagon legalizing marijuana and/or medical marijuana use, legislators are now addressing a new concern, an increase in driving while impaired by marijuana.

While Arizona implements a zero tolerance policy, making any level of marijuana in the blood illegal, Colorado’s law offers more flexibility.

Colorado has recently passed new legislation that places the legal threshold for marijuana at 5 nanograms per milliliter. Under this law, defendants are permitted to present evidence proving that they were not too impaired to drive despite a THC level exceeding the statutory threshold.

While proponents of the law emphasize the importance of this standard when legally prosecuting cases involving marijuana impaired driving, many feel that the threshold is to low.

With the legal limit for alcohol being .08, it logically follows that a similar limit should exist for marijuana. That being said, even the National Highway Traffic Safety Administration (NHTSA) acknowledges that detecting impairment caused by marijuana is not as simple as it is with alcohol. The NHTSA is currently studying the effects that marijuana consumption has on drivers; they are expected to return their results by the end of 2014.

In the meantime, a news station in Washington has conducted an interesting experiment to measure marijuana’s effect on driving.

KIRO 7 News constructed a driving course outfitted with a marijuana-smoking lab, police officials, and driving instructor.

Three volunteers were required to smoke 3/8ths of a gram of marijuana and then instructed to complete a driving course. Accompanying the volunteers, an instructor observed the volunteers’ driving ability and reported whether they were safe enough to be on the road.

In all three cases, drivers were reported as driving fine when their blood level of THC well exceeded Colorado’s legal threshold of 5 nanograms. One participant for example, was reported as driving fine behind the wheel when their blood content was 26 nanograms (that’s 5 times the legal threshold). This being said, as the volunteers’ consumed more and more marijuana they did eventually become too impaired to safely drive on the road.

While there is much research to be done on the subject, it seems evident that the future holds much contention among legislators regarding marijuana’s driving threshold.

http://www.kirotv.com/news/news/how-high-too-high-kiro-7-tests-pot-smoking-drivers/nWLrZ/

http://www.nytimes.com/2013/06/09/automobiles/redefining-under-the-influence.html?_r=0

 

Landmark Ruling for Michigan Medical Marijuana Patients

This past Tuesday, in a landmark ruling, the Michigan Supreme Court overturned the Court of Appeals decision in the case of People v. Rodney Koon.

The court’s decision resolves what had been a contentious legal issue regarding whether Michigan medical marijuana patients could be convicted with operating a motor vehicle by simply having the presence of marijuana in their system. 

In 2010, Rodney Koon was pulled over for driving 83 mph in a 55 mph zone. Prior to being arrested, Koon disclosed to the officer that he possessed a medical marijuana registry card and admitted to the use of marijuana 4 hours earlier. When a blood test revealed that there was active THC in his system, Mr. Koon was charged with violating MCL 257.625(8), which prohibits the operation of a motor vehicle with any amount of a schedule 1 controlled substance in the body. In Michigan, marijuana is a schedule 1 controlled substance.

While Michigan’s “zero tolerance” policy regarding schedule 1 controlled substances prohibits all drivers from having any presence of marijuana in their system, the state’s medical marijuana law shields registered patients from prosecution for the internal possession of marijuana. Koon contended that because he had the right to internally possess marijuana, he should be permitted to continue his everyday activities, so long as he wasn’t violating any other laws.

Originally charged in the 86th District Court, it was ruled that Koon’s registration under the Michigan Medical Marijuana Act (MMMA) protected him from being prosecuted under MCL 257.625(8).  Affirming the district court’s decision, the Grand- Traverse Circuit Court also determined that the MMMA superseded the zero-tolerance provision of MCL 257.625(8). The prosecution later appealed to the Michigan Court of Appeals, who reversed the lower court rulings. Interpreting “under the influence” as a state pertaining to a person with any amount of marijuana in their body, the Court of Appeals noted that even the MMMA prohibited Medical Marijuana patients from driving while under the influence of marijuana.

Michigan v. Rodney Koon finally landed before the Michigan’s Supreme Court. In a unanimous decision, Michigan’s highest court ruled that the immunity from prosecution provided by the MMMA to a registered patient who operates a vehicle with the presence of marijuana in his or her system but otherwise isn’t under the “influence of marijuana” conflicts with Michigan’s OWI statute.  What this means is that a medical marijuana patient may still be convicted of violating MCL 257.625(8), provided that the prosecution can prove beyond a reasonable doubt that the patient was operating “under the influence” of marijuana. Simply discovering the presence of marijuana in a patient’s system will no longer be a prima facie case of a MCL 256.625(8) violation. 

If you have been charged with OWI in Michigan involving marijuana, alcohol or any other controlled substance and you are in need of an honest and
hard-working defense attorney to represent you, contact The Leydorf Law Firm at any time by calling
(517) 388-6800.

Sources

 

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Texting and Driving: Get the Message

It’s always tempting, isn’t it? You hear the alert of a new text coming in, and even though you are behind the wheel, you feel compelled to take a peek. The trouble is, a peek can turn into a long look or even a reply – and that’s dangerous.

Texting and driving is incredibly common, and not just among the 20-and-under crowd. Recent statistics indicate that 27% of adults have sent or received text messages while driving. Other reports show that texting while driving makes a crash up to 23 times more likely.

The offense has often been compared to drinking and driving, with officials citing similar behaviors in texting drivers such as swerving, erratic behavior, driving too fast or too slow, and more.

The danger is severe enough that the majority of state governments have taken action. The Governor’s Highway Safety Association reports that 39 states, D.C., Puerto Rico, Guam and the U.S. Virgin Islands, all currently ban text messaging for all drivers.

 

Startling statistics

Texting and driving might be difficult to identify by sight, but recent polls show offenders fessing up:  

  • A 2011 Harris Polls discovered that 49% of drivers with cellphones under the age of 35 send or read text messages while driving.
  • According to the Pew Research Center (2010), 49% of adults say they have been passengers in a car when the driver was sending or reading text messages on their cell phone.

 These responses point to a sad fact: Annually, about 6,000 deaths and 500,000 injuries are caused by distracted drivers.

 

What the law says

These disturbing numbers have caused many states to take action. In Michigan, texting while driving was banned in July 2010. And now most teenage drivers are forbidden to even use cell phones while driving. Kelsey’s Law, named after Upper Peninsula teenager Kelsey Raffaele, who died at age 17 while talking on her cell phone and driving, brings a fine and possible license suspension to drivers with a level 1 or 2 graduated license found using their cell phone while driving.

 

Top tips

Clearly, it is in your best interest to curtail cell phone use in general while driving. In our ever connected world of busy lives and social media, though, this is easier said than done. Try these tips if you are tempted to check your messages while behind the wheel:

  • Turn off your phone when you drive. “Out of sight, out of mind” is a great policy when it comes to safe driving. Store your phone where you won’t see it, and be sure to turn the sound off.
  • Have someone else text for you. A passenger in your car can handle incoming texts if you need to address a message while driving.
  • Establish ground rules. If you have a teen driver, set the expectations for driving and texting. If you ban it and provide consequences, you will get better results. 
  • Paint a picture for your driver. Many teens and adults won’t drive drunk. But they need to understand that driving distracted is just as dangerous. Talk with all the drivers in your family about the consequences.

No text is worth the price of death or severe injury. Know the facts and set the limits in your family to ensure the safety of those you love.

David Haenel, Esq., of the firm of Finebloom & Haenel, is a criminal defense attorney, author, and lecturer who has been named a “Rising Star” by Super Lawyers magazine. He can be contacted at FightYourCase.com.

Technology and Search Warrants

April 26, 2013 1 comment

In DUI situations, it is imperative for the State’s case that police obtain timely evidence of the driver’s blood alcohol content. However, before an officer can draw blood from a driver they are required to apply for and obtain a search warrant (or obtain consent); this process can take several hours to complete, depending on the time of day. 

 Police and Law enforcement across the country are now utilizing video conferencing technology and other means to expedite the process of obtaining search warrants for blood draws.

In jurisdictions that utilize electronic warrant procedures, obtaining a warrant can take as little as 30 minutes. For instance, the electronic procedure exercised in Palm Bay, Florida begins with a cellular call made from the officer’s vehicle to a judge in their jurisdiction. After informing the judge of the incident, the officer emails an affidavit with their electronic signature to the judge. Once the judge reviews the affidavit, they can directly deliver their official testimony by video-calling the officer using Skype.

While proponents of the use of this technology argue that implementation of these procedures will save time and money, some critics aren’t sold on the idea.  For instance, in some Michigan jurisdictions, patrol cars aren’t even equipped with dash cams.  This can prove problematic when there is a dispute about the basis for the traffic stop that leads to an OWI arrest.  Often, operating while intoxicated cases in Michigan and other states hinge on the credibility of the officer.  If there is money to be spent, shouldn’t it first be allocated to technology that levels the playing field?  Furthermore, other critics have argued that the ability to instantaneously communicate with the officer on the scene with the accused present should require that the accused have an opportunity to be heard prior to the issuance of a search warrant.

Resources:

http://www.usatoday.com/story/news/nation/2013/04/12/dui-search-warrant-blood-sample/2079419/

http://www.techdirt.com/articles/20110330/02461013692/police-using-skype-to-get-warrants-while-crime-scene.shtml

http://wuisnews.wordpress.com/2013/04/01/proposal-police-could-obtain-warrants-using-video-chat/

http://tech.wiredpig.us/post/12291391474/florida-cops-using-skype-to-expedite-warrants

http://www.ilga.gov/legislation/billstatus.asp?DocNum=2188&GAID=12&GA=98&DocTypeID=SB&LegID=73776&SessionID=85

 

Happy to report that we obtained two not guilty verdicts for our clients in the past two weeks!

April 24, 2013 Leave a comment

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I love sharing good news, especially when it means that a client will not be charged after being falsely accused! The next time that you read or hear that someone has been arrested, don’t blindly assume that they are guilty. Have a safe and happy weekend!

April 12, 2013 Leave a comment

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