St. Joseph Michigan Criminal Defense Blog

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Sentencing Guidelines

Should Semantics and Human Bias Affect Sentencing After Conviction?

Sentencing Guidelines

Uniformity. Discretion. Deference. Disparity. Proportionate. Advisory. These are just some of the words being used to describe the recent decision of the Michigan Supreme Court to rule the state’s sentencing guidelines unconstitutional. All sides of the controversy, including criminal defense attorneys in Berrien County, are weighing in on the potential effects on Michigan’s criminal justice system.

The sentencing guidelines, which have been in effect since 1999, were passed by the Michigan Legislature to give judges binding rules for sentencing ranges and increase parity among individual judges throughout the state. Recently, however, the Legislature has been reconsidering the sentencing structure because it has not fulfilled the vision that lawmakers had for it, nor has it appeared to have any impact on reducing crime.

People v. Lockridge, which was appealed to the Michigan Supreme Court because the judge had increased the defendant’s minimum sentence by ten months beyond the maximum time set by the guidelines, involved a man who killed his wife in a domestic dispute. The situation also had exacerbating circumstances: the couple’s three children witnessed their father strangle their mother and were then left at the home with her dead body. The husband, who had a record of domestic violence, was violating a court order by being in the residence.

Under the guidelines, the acceptable range of sentencing for convicted criminals could only be calculated using evidence that the defendant had admitted to or facts before the jury. The higher court ruled that the deviation from the guidelines effectively deprived defendants of their right to a trial by jury, violating their Sixth Amendment rights. Ironically, this specific defendant’s sentence was not reduced given the case’s extenuating circumstances.

In 2013, the United States Supreme Court had called mandatory sentencing guidelines into question in Alleyne v. United States when a judge increased a defendant’s sentence based upon facts that were never submitted to the jury. The jury convicted the defendant for “carrying” a firearm. The judge found that the firearm had also been “brandished,” increasing the minimum sentence by 2 years. In that case, the United States Supreme Court also said that only a jury could determine these facts, violating that defendant’s Sixth Amendment rights.

So what does this mean for criminal defendants? First, for those who have already been convicted of a crime and sentenced, they may contact a criminal defense attorney and appeal for resentencing, in essence asking the judge to use his or her own discretion this go-round instead of using the guidelines. For those who are currently awaiting trial or sentencing, the result is as yet unknown. The sentence for those convicted may be at the discretion of a judge who, as a human with opinions, may be too harsh or too lenient. It will be some time before any pattern emerges. In the meantime, the advice and counsel of a prominent criminal defense attorney in Berrien County will be important in the outcome of the sentencing phase of any criminal trial. For further information or assistance please contact the Peter J. Johnson Law Office, PLLC at 269.982.1100 or visit www.AttorneyPeterJohnson.com.

Source: Detroit Free Press, “Michigan judges get more leeway in sentencing,” Kathleen Gray, July 30, 2015

Secondary Sources:
The Elkhart Truth, “Q&A: A look at Michigan sentencing after court strikes law,” David Eggert, Aug. 6, 2015

Southgate News Herald, “Michigan judges allowed more discretion in deciding sentences for crimes,” Jessica Strachan, Aug. 4, 2015

Tri-County Times, “The final decision on Michigan’s sentencing guidelines,” Aug. 5, 2015

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Terrorist Threats

Terrorist Threats under Michigan Law Not Limited to Acts of War

Terrorist Threats

Over the last 14 years, the definition of “terrorist” has broadened significantly. Now a mere verbal threat that has nothing to do with international relations can qualify as an act of terrorism under Michigan law. One recent example involves a call to a crisis center.

During an 80-minute call to a mental health hotline, the defendant made specific threats of violence. Under Michigan law, a terrorist threat includes a threat to commit an act of terrorism that is communicated to a third party. In this case, the threat was communicated to the emergency services specialist over the phone.

The Michigan Penal Code defines an “act of terrorism” as: “a willful and deliberate act that is all of the following”:

  • a violent felony under the laws of this state, whether or not committed in this state;
  • that the person knows or has reason to know is dangerous to human life; and
  • that is intended to intimidate or coerce a civilian population or influence or affect the conduct of government or a unit of government through intimidation or coercion.

While under the law, it is no defense that the person “did not have the intent or capability of committing the act of terrorism,” a call made to a crisis line would ordinarily have the potential of protection under confidentiality privileges. But in this case, because the threats were made against a third party, those privileges were lost.

With international tensions high around the globe, Americans have not forgotten the tragic events of 9-11. The Michigan law carries a prison sentence of up to 20 years or a fine of up to $20,000, or both, upon conviction under the terrorism statute. An American jury in a criminal trial against an alleged terrorist is likely to be haunted by images of what terrorists can do. Mounting an effective criminal defense is crucial to acquittal when charged with a terrorist crime. If you find yourself in this situation, contact a criminal defense attorney in Berrien County immediately for counsel and guidance on mitigating the charges against you.

For the past 45 years, Peter J. Johnson Law Office, PLLC has been one of the leading law firms in Michigan. Our prominent, reputable and highly experienced trial lawyers are here to fight for you and your family. For further information or to schedule an appointment please visit www.AttorneyPeterJohnson.com or contact us at 269.982.1100.

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Michigan Medical Marihuana Act - MMMA

Michigan Supreme Court Broadens MMMA Definition of Paraphernalia

Michigan Medical Marihuana Act - MMMA

Office supplies and drug paraphernalia. One would think that the two have nothing in common. But according to a recent Michigan Supreme Court decision, a simple sticky note can fall within the definition of paraphernalia under the Michigan Medical Marihuana Act.

Maybe the first impression would be that the sticky note was used as a rolling paper. But no: it actually met the definition of “legal drug paraphernalia” because it had writing on it that was relevant to the harvest dates of plants being grown under the Act.

The case arose out of a raid on the home of a family with a state-approved medical marijuana user. Neighbors had complained about a strong smell coming from the home’s basement. When the police entered the home, even though the husband had a valid permit, violations of the laws permitting the growth and harvest of medical marijuana on the premises were found, including an unlocked door which violated the Act’s requirement that the substance be grown only in an enclosed, locked space.

Because of the violations, the husband and wife were arrested and charged with felonies of possessing and manufacturing marijuana in violation of the Act. The question in the case is whether the wife should have immunity because her spouse was authorized to grow the substances.

The Court’s ruling was fairly narrow: while it said that the sticky notes could not be used as evidence against the wife, it could not rule that she qualified for “mere presence” immunity because the husband was not in compliance with the requirements of the Act, i.e., leaving the marijuana in an unlocked space. Her case has been sent back to the trial court in her county to determine whether she is in fact immune from further prosecution, but prosecutors must prove their case without the sticky notes with her handwriting on them.

Another recent Michigan Supreme Court case ruled that the defendant under an MMMA case has the burden of proving his or her immunity and must do so by a preponderance of the evidence. So this may also affect the wife’s ability to avoid prison time.

Whatever the ultimate outcome of this case, it is an excellent illustration of how Michigan courts’ interpretation of the MMMA remains in flux. The state Supreme Court has ruled on nine cases in the seven years since the Act was passed and each one adds to the body of law that will be used to acquit or convict those charged with violations of the Act.

As the body of law develops, those who have been approved to use medical marijuana and those who may be seeking approval would benefit from the counsel of an experienced and prominent drug attorney in Berrien County to make sure that their rights are protected.

For further information or to schedule an appointment with one of our leading drug and criminal defense attorneys at Peter J. Johnson Law Office, PLLC please visit www.AttorneyPeterJohnson.com or contact us at 269.982.1100 .

Source: Lansing State Journal, “Sticky note can’t convict in marijuana cases, state Supreme Court rules,” Bill Laitner, June 13, 2015

Secondary Source: Michigan Live, “Michigan Supreme Court: ‘Inconsistencies’ in medical marijuana law still causing ‘confusion’,” Jonathan Oosting, July 29, 2015

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Drunk driving laws

Electric scooter driver properly charged with DUI

Drunk driving laws
Drunk driving law is a complicated and ever evolving field that requires the expertise of a criminal defense lawyer. Although there may be instances when a court appointed public defender may suffice, if a defendant hopes to obtain a fair and impartial hearing for a drunk driving offense there is no sense in placing one’s fate in the hands of someone with little experience in the field. For example, a recent Michigan case, People v. Lyon, contained many elements that only an experienced criminal defense lawyer could reasonably argue as a defense in a court of law.

People v. Lyon concerned a disabled defendant who was arrested for operating his scooter on a public highway while intoxicated and with an open container of alcohol. The defendant argued his scooter does not meet the definition for “motor vehicle” under Michigan Vehicle Code, and that, therefore, he could not be charged for a DUI under current Michigan statutes. Obviously, there are a number of details that a committed criminal defense lawyer would examine.

For instance, as a four-wheeled-scooter that only reaches a top speed of four miles per hour, the defendant’s mode of transportation does not technically meet the qualifications of “motor vehicle.” Instead, the defendant argued, his scooter was legally an “electric personal assistive mobility device” under Michigan law. Because of this, statutes pertaining to drunk driving laws in Michigan might be called into question for this particular case. Specifically, can drunk driving laws in Michigan pertain to a disabled person operating a type of wheelchair, scooter, or other “electric personal assistive mobility device” that is not legally considered a “motor vehicle”?

Further, MCL 257.33 of Michigan’s Motor Vehicle Code states that a “motor vehicle,” among other definitions, “does not include an electric personal assistive mobility device,” thereby possibly exempting it from standard DUI laws. The defendant’s scooter falls under a separate statute, MCL 257.13c, which states that its qualifications as being “a self-balancing non-tandem 2-wheeled device, designed to transport only 1 person at a time.” Additionally, as a device that only reaches a top speed of four miles per hour, the defendant’s scooter may be eligible for consideration as a “low-speed vehicle” under MCL 257.25b. Low-speed vehicles operate under different roadside statutes than standard motor vehicles.

Regardless of how a defendant wishes to pursue a case like this, the main point is that a court appointed public defender will not be sufficient. It is highly unlikely that anybody but a criminal defense lawyer who is aware of the numerous, intricate Motor Vehicle Code statutes will be acquainted with the many available arguments that can be made from them. A public defender will generally be attending to several different cases at once, and covering a wide array of topics with which they are not particularly experienced to try. The severity and gravity of drunk driving charges should not be left to an overworked District Attorney office that is more concerned with clearing the case off of its desk than offering a personal and detail oriented defense. For this, only a private criminal defense lawyer in Michigan will do.

For over 45 years, the Peter J. Johnson Law Office, PLLC has been fighting prosecutors and helping clients across the greater Southwest Michigan area in criminal proceedings. For further information or to schedule an appointment with one of our highly experienced and reputable criminal defense lawyers please contact us at 269.982.1100 or visit www.AttorneyPeterJohnson.com.

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Medical Marijuana Laws

Michigan Legislature Revisiting Medical Marijuana Laws

Medical Marijuana Laws
Since Michigan Medical Marihuana Act passed in 2008, the state legislature makes it difficult for patients who depend on this treatment to obtain it. If legal roadblocks have affected you, finding it impossible to legally access the medical marijuana that you need, a criminal defense attorney is your best ally in navigating this process effectively.

After the original law passed in 2008, dispensaries selling medibles increased across the state of Michigan. However, in 2013 Michigan Court of Appeals ruled that all forms of non-smokable marijuana is illegal, leaving those who need and use medical marijuana without many options.

Michigan is one of three of 23 states that allow medical marijuana. For now the only legal way for 100,000 state approved users who need medicinal marijuana in Michigan to obtain it is to grow their own or purchase it from a designated caregiver. However, designated caregivers are limited at this time to only having five patients.

Recently, the Michigan House Judiciary Committee began new hearings regarding two medical marijuana bills. The new laws, if passed, will be looking to make both dispensaries and medibles legal possibilities to those who need them in Michigan. These two bills passed last year in the House, but were intentionally held up in the Senate. The opposition claims that users of medical marijuana are just looking to get high and having dispensaries is just legalizing the drug.

If you are an approved user or an owner or potential owner of a dispensary and feel that your rights have been violated, you have come to the right place. The expert criminal defense attorneys in Cass County and surrounding areas at Peter J. Johnson Law Office, PLLC, are here to help. For further information or to schedule an appointment please contact us at 269.982.1100 or visit www.AttorneyPeterJohnson.com.

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