St. Joseph Michigan Criminal Defense Blog

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Intoxicated Law

Michigan Court Broadens Operating While Intoxicated Law

Intoxicated Law

The state’s operating while intoxicated statute (OWI formerly DUI) is relatively clear and well settled. It prohibits operating a motor vehicle while under the influence of alcohol (over 0.08% blood alcohol content) or a controlled substance. Most people who get charged with the statute know exactly why. But a recent decision by the Michigan Court of Appeals could put many drivers in danger of receiving this potentially life-changing misdemeanor charge.

The risk: driving while under the influence of a medication labeled a controlled substance. The statute clearly includes controlled substances, which are drugs listed on schedules 1 to 5 of the Controlled Substances Act.

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 is operating while intoxicated. As used in this section, “operating while intoxicated” means any of the following: (a) The person is under the influence of alcoholic liquor, a controlled substance, or other intoxicating substance or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance.

This prevents people from driving after using marijuana or cocaine, for example.

But further down the list of schedules are drugs that are often prescribed for daily use. In addition, the Michigan Board of Pharmacy has the authority to add drugs to the schedules or to change on which schedule a drug is listed.

The defendant in People v. Kane had accidentally taken an Ambien (Zolpidem) sedative rather than his prescribed Xanax. Zolpidem is not listed on the statutory schedules 1 through 5, but the Michigan Board of Pharmacy has listed it as a schedule 4 controlled substance. The court ruled that he could be charged with operating while intoxicated because he drove with Zolpidem in his system.

The court held the defendant responsible not only for knowing whether the drug he took was on the legislatively set schedules, but also for keeping up with the changes made by the Michigan Board of Pharmacy. The lists can be found here. If he was under the influence of anything on those lists, he was not allowed to drive.

*Please note: Every case is different, and there may be some aspect of your particular case which may result in an out some other than is descrigbed above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

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Cannabutter

Court Says No To Cannabutter

Cannabutter

A recent Michigan Court of Appeals decision has narrowed the scope of protected marihuana use in the Michigan Medical Marihuana Act (MMMA). As a result of this opinion, registered patients will no longer be allowed to use resin-based products under Section 4.

Section 4 of the MMMA protects registered patients and their caregiver from arrest or prosecution as long as they stay within the limits of that section. But that section only protects the possession or use of a small amount of usable marihuana. According to the MMMA, that means the dried leaves and flowers of the marihuana plant, and any mixture or preparation thereof, but does not include the seeds, stalks, and roots of the plant. MCL 333.26423(k).

In People v. Carruthers, the Defendant was a caregiver for 4 qualified patients. He was stopped for driving on a suspended license while carrying a small amount of smokable marijuana and several brownies made with Cannabutter made from the resin of the marijuana plant.

The prosecutor and the defense disagreed on how the brownies’ weight should be calculated. After the defendant was convicted, he appealed and asked the Court of Appeals to consider how much weight should have counted.

The Court of Appeals went further. It said that the amount of THC in the brownies was irrelevant because it was not made from the leaves or flowers of the plant, so it was not protected as usable marijuana.

The only option left to the Defendant was to assert the affirmative defense under Section 8, which uses a much broader definition of marijuana that specifically includes resin. The Court remanded the case for a hearing under Section 8.

*Please note: Every case is different, and there may be some aspect of your particular cas which may result in an outsome other than is descriged above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

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Car Accident

What Not to Do After a Car Accident

Car Accident
There are many potential missteps after you have been involved in an auto accident. In the minutes, hours and days following a car wreck, it can be difficult to think clearly or to take note of important factors involving liability and compensation. Even if your injuries are minor and your vehicle is not damaged, you should follow these guidelines to protect yourself and preserve your right to compensation for your injuries, vehicle damage or lost income. Often times, your damages are more serious than they appear at first glance.

Don’t Apologize

Even if you think you are clearly at fault for the accident, don’t accept blame or apologize to anyone. The police and insurance adjusters will investigate the collision and determine where the fault lies. If it lies with you, you will most certainly be notified. But affirming your guilt before all the facts are discovered can only serve to undermine your personal injury claim or a potential defense if you are on the receiving end of a lawsuit.

Don’t Compare Notes

Avoid rehashing the accident with the other involved parties. You do not want to inadvertently admit fault for the accident, or make other statements that undermine a future legal claim. Additionally, swapping stories can cause confusion in your own mind regarding what happened immediately before and during the collision. Of course, you should give your statement to the police, if applicable. But further communications regarding the accident, your injuries, damage to your vehicle, or associated expenses for medical treatment or car repairs should be limited to your attorney.

Don’t Get into a Dispute with Other Drivers or Passengers

Tempers can sometimes flare. People may be hurt, property may be damaged. Nobody is getting to their destination, and everyone may be concerned regarding various obligations and future travel arrangements. If other parties become upset, agitated or violent, you should simply walk away. By refusing to engage in emotional dialogue or worse, a physical confrontation you avoid turning a routine fender bender into a major altercation which can result in its own legal ramifications.

Don’t Call the Insurance Company

If you think there is any reason why the insurance company may dispute your claim, you should speak with an attorney first. The attorney can advise you regarding what to say and what not to say to the insurance adjuster, or can communicate with the adjuster on your behalf. Insurance companies train their adjusters to ask specific questions designed to make your case look as weak as possible. Your insurance company should help you when you’ve been involved in an accident that’s part of what you pay for but ultimately the bottom line is of primary importance. The insurance business is far more profitable when the insurance companies do not have to pay out claims.

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Personal Injury Cases

How are Damages Calculated?

Personal Injury Cases

How are Damages Calculated in Personal Injury Cases?

If you have been injured as a result of someone else negligent conduct, you may be considering a lawsuit to recover compensation. The compensation awarded to you, called damages, falls within two categories: compensatory damages and punitive damages. Compensatory damages are designed to compensate the plaintiff for actual losses sustained, and are further divided into special damages and general damages.

Special damages are those fixed amounts relating to your actual losses, such as medical expenses, lost income or costs to repair your property. General damages, on the other hand, include non-monetary losses, such as pain and suffering, your decreased ability to perform certain functions, or the loss of a loved one. Punitive damages, sometimes called exemplary damages, are designed to punish a defendant or deter similar conduct in the future.

The damages to which you are entitled are typically calculated based on the severity of your injuries, the underlying circumstances of the incident in question, and whether the case settles or proceeds to a trial. The following factors are typically considered:

  • Medical treatment expenses
  • Estimated costs of future medical treatment or therapy
  • Past lost wages or income
  • Future lost wages or income
  • Costs to repair or replace damaged property
  • Your out-of-pocket expenses, such as insurance deductibles or copayments
  • Rental car expenses
  • Funeral expenses, in wrongful death cases
  • Emotional distress
  • Pain and suffering
  • Punitive damages, if the underlying act was particularly egregious or intentional

In the American legal system, damages are intended to compensate the plaintiff sufficiently to make him or her whole, i.e. restore the plaintiff to the same position he or she was in prior to the accident or injury. If you mediate your dispute or otherwise settle it out of court, the parties and lawyers will negotiate each item and come to an agreement. If your case is tried in a court, the judge or jury will calculate how much you are entitled to receive, based on the evidence presented at trial.

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Dog bite cases

Is Your Dog’s Bite Your Crime?

Dog bite cases

Michigan has a statute making it a crime, even a felony in some circumstances, for your dog to bite someone. Another statute says that you are liable for the damages of that bite even if you did not know your dog was dangerous.

But a recent Court of Appeals decision does cut dog owners a little slack. The court said that to be criminally liable, the owner had to know ahead of time that the dog was dangerous, or there had to be a previous court determination the dog was dangerous.

Also, the dog still has to be dangerous at the time of the attack. This seems obvious, but a dog is not considered dangerous if the person the dog bites:

  • Is knowingly trespassing on the dog owner’s property
  • Is provoking or tormenting the animal, or
  • Is protecting a person acting lawfully or who is the subject of an assault.

Interestingly, even though the dog in question was a rescued pit bull, the court did not raise the question of breed. Instead its decision addresses the violent or dangerous tendencies of the particular animal regardless of breed stereotypes.

Nor is it enough for the person to reasonably have known the animal’s violent nature. It is not enough to infer the danger from the breed or background of the animal. The court’s opinion requires the prosecution to demonstrate that the defendant had actual knowledge that the particular dog was dangerous.

All together, this means that dog owners who don’t have specific knowledge that their dogs are dangerous will not face criminal charges as the result of a dog bite (unless a court has previously found it to be dangerous). But that same owner will still have to pay for any damage the dog did with the bite.

*Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may be charged with a crime.

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