St. Joseph Michigan Criminal Defense Blog

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workers compensation

Have You Been Injured on the Job?

Have You Been Injured on the Job? What if Your Employer Has No Workers Compensation Insurance?

workers compensation
In most states, employers are required to carry workers compensation insurance to cover workplace injuries sustained by their employees. Workers compensation insurance is a no fault system which allows every employee to receive benefits for a job-related injury, regardless of who caused the accident or illness, though intentional, self-inflicted injuries may be excluded from workers’ compensation benefits. The system balances the needs of workers, who are entitled to receive prompt medical treatment for their injuries, with the needs of employers who can conduct their business operations free from the fear of being sued by an injured employee. Workers compensation programs can provide claimants with medical benefits and, provided certain requirements are met, temporary compensation payments until the employee is able to return to work. In certain situations, claimants may also receive permanent benefits such as job retraining or supportive medical care.

But what happens if you get hurt and your employer doesn’t have the required workers compensation insurance?

Regardless of whether your employer participates in a workers compensation insurance program, it is important that you seek medical attention immediately, to ensure you receive proper treatment and to document your injuries. Typically, an injured worker’s only legal option for recovering compensation from the employer is to file a workers compensation claim. There are a few exceptions, however, such as when an employer intentionally causes the workplace injury, or when an employer fails to carry the required workers compensation insurance.

If you are injured and your employer does not participate in a workers compensation insurance program, there may be coverage available to you through a government fund for injured workers whose employers do not have the mandated workers compensation insurance. If you find yourself in this situation, check with your states Labor Department to find out what programs may be available in your area, and to report your employer’s non-compliance with the workers compensation laws.

Injured employees whose employers do not carry valid workers compensation coverage also have the option of filing a civil lawsuit against the uninsured employer to recover compensation for their damages. Through the civil court system, uninsured employers may have to pay substantially more in damages to cover the injured employees losses including medical bills, future lost earnings, and pain and suffering. In most jurisdictions, workers’ compensation insurance programs limit the injured employees recovery by disallowing claims for pain and suffering or punitive damages which would be allowed in a civil lawsuit. Civil cases also differ from claims made through no-fault workers compensation programs in that certain legal principles may apply, such as contributory negligence, which can limit an employees recovery based on percentage of fault.

In most jurisdictions, employers who fail to carry workers compensation insurance are not only liable to their injured workers, but also face penalties for violating the law.

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Personal injury cases

Bringing a Claim for Injuries When the Accident Was Partly Your Fault

Personal injury cases
In order to prevail in a personal injury case, you must be able to prove that your injuries were directly caused by the negligent actions of another. If you can prove that your injuries were at least partly caused by another, you may be able to receive compensation for your medical expenses, physical and emotional pain and suffering, permanent physical impairment or disfigurement, lost income, decreased earning capacity, property damage, or other economic losses.

If you have been injured in an accident, you may be entitled to recover compensation from anyone else who partially caused the accident, even if the accident was partly your own fault. The legal theories of contributory negligence and comparative negligence apply in cases where the plaintiff in a lawsuit was partially responsible for his or her own injuries.

Contributory negligence means the injured person actions, at least to some extent caused his or her own injuries. For example, someone who ignores a Caution: Wet Floor sign and subsequently slips and falls may be deemed to have been careless and, thus, at fault for his or her injuries. As such, contributory negligence can prevent the injured person from recovering any compensation, even when his or her carelessness was minor as compared to the fault of the other party. In some states, accident victims are entitled to recover compensation only if they can prove that the other party fault was greater.

In some jurisdictions, the concept of contributory negligence has fallen out of favor and is no longer applied. Instead, it has been replaced with the concept of comparative negligence. Comparative negligence means that the fault for causing an accident is compared among all parties, typically broken down as a percentage of fault attributed to each party. When this occurs, the monetary recovery awarded to the injured plaintiff is reduced by his or her percentage of fault. For example, if you were injured in a car accident that was determined to be 25% your fault, your monetary recovery from the other driver insurance company would be limited to 75% of the amount of your damages from the accident, an amount equal to that driver percentage of fault for causing the accident. By applying the concept of comparative negligence, each party is held accountable only for his or her percentage of fault for causing the injuries.

You may be deemed to be partially at fault for your injuries if you have failed to act with reasonably prudent care under the circumstances of the accident, or if you voluntarily assume a portion of the risk by exposing yourself to danger, such as by failing to use the available restraints on an amusement park ride or ignoring a posted warning sign.

The total value of your claim is based on many factors, including how easily fault can be apportioned among the parties, the seriousness of your injuries, medical treatments received and insurance coverage limits. Once the claim total value is established and the percentages are applied, a final figure for the injured plaintiff compensation can be determine

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Texting While Driving

The Truth About Texting While Driving

Texting While Driving

Michigan has had a law against texting while driving since 2010, but in October of this year the law will change. A separate section will then apply to commercial drivers and school bus drivers. Also, the law does not make texting while driving a crime. Instead it is a civil infraction, like speeding, which can only result in a fine. It is a non-reporting offense, so no points are added to a person’s license unless they are operating a commercial vehicle after October of this year.

So how do you avoid those fines?

  1. Don’t use your cell phone to text while your vehicle is moving. The civil infraction only prevents texting while operating a moving motor vehicle.
  1. Don’t take calls on your cell phone if you are operating a commercial vehicle unless:
    • You can do so without holding the phone (such as with a hands-free device).
    • You do not have to push more than one button to dial or answer the phone.
    • You can avoid moving out of your seat to reach your phone.

The law is relatively narrow in scope. It carves out a large exception for drivers who are reporting traffic accidents, medical emergencies, serious road hazards, or any situation that the driver believes could threaten his or her personal safety or result in a crime. It also does not apply to active-duty law enforcement, fire department personnel, or emergency medical responders.

If the law does apply, then violators must pay a fine of up to $100 for a first offense or $200 for later offenses. This is a relatively minor fine, but a traffic stop by an officer can still take time out of your day and could result in more serious charges. Challenging the ticket can still require two court appearances.

It is better to wait to read and respond to text messages until your vehicle is safely stopped in a parking lot. Beside avoiding a ticket, it can help prevent accidents that can be quite serious as a result of distracted driving.

*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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Medical Marijuana Cases

Medical Marijuana Patients Get the Keys to the Car

Medical Marijuana Cases

The Michigan Supreme Court recently took another look at the Michigan Medical Marihuana Act, (MMMA) MCL 333.26421 et seq., this time considering how the act applies to qualified patients behind the wheel. Without even hearing oral arguments, the Court decided in favor of the qualified patient.

When the Defendant was stopped for speeding, he volunteered a marijuana pipe and his MMMA card, listing him as a qualified patient. He said he had last used marijuana five to six hours before the stop. A drug test confirmed active tetrahydrocannabinol (THC), the active component of marijuana, in the Defendant’s system.

The Court was asked to decide whether the MMMA protected qualified patients against prosecution under MCL 257.625(8), which prohibits any person from operating a motor vehicle with any amount of a schedule 1 drug (including marijuana) in his or her system.

The MMMA (which is explained more fully here) protects qualified patients from prosecution for the medical use of marijuana. Medical use includes what the statute calls internal possession, which the Court inferred to mean the presence of THC in the qualified patient’s blood.

But the MMMA is not a blanket protection. Qualified patients must possess less than 2.5 ounces of usable marijuana and must be acting within the limits of the statute. They cannot operate motor vehicles while under the influence of marijuana.

The Court said that under the influence must mean something more than any amount of marijuana in a patient’s system. Basing its decision on similar language in previous alcohol-based statutes, it imposed the requirement that the substance have some effect on the person. Because the MMMA protects against prosecution as long as a qualified patient acts within the limits of the statute, it superseded the Michigan Vehicle Code and prohibited the charges against the defendant.

Many judges have cautioned medical marijuana patients against driving, believing that any THC in the patients’ system could exclude them from the protections of the act. With this opinion, the Michigan Supreme Court has negated that reading and has put the keys back in the hands of the qualified patients.

*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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Probation and Parole Procedures

Michigan Legislature Cracks Down on Probation and Parole Procedures

The Michigan Legislature has recently passed a series of laws that change the way prisoners are released from jail and prison. The effect of these laws could mean that it will be harder for prisoners to be released on parole or work/school release programs.

Probation and Parole Procedures

2012 P.A. 623 (Effective January 9, 2013)

Before a prisoner can be released on parole, he must now sign a written consent form which will allow his parole officer to search his person or property. This standing consent will last as long as the prisoner is on parole. The statute does state that searches conducted cannot be with the sole intent to intimidate or harass the parolee, but does not provide any protections or recourse for that kind of a search.

This act does not actually change the substance of the law in Michigan. Parolees (and probationers) have long been subject to warrantless searches under a constitutional warrant exception. However, this written consent gives the parole officers added protections and makes it clear to the parolee that these searches may lawfully occur.

The Probation Swift and Sure Sanctions Act (Effective January 9, 2013)

This act organizes several statutes and procedures used when placing a person on probation following a felony conviction. It does not apply to misdemeanors. It creates a state-wide fund that local courts may opt into so they can immediately detect probation violations and punish probation violations quickly. To that end probationers are to be arrested as soon as a violation is detected and brought before a judge within 72 hours. Immediate sanctions should be imposed and repeated violations will be met with increasing penalties. Penalties can include:

  • Probation revocation,
  • Temporary jail time,
  • Extension of the probation period,
  • Additional reporting requirements,
  • Further restrictions on behavior,
  • Drug and alcohol testing,
  • Counseling or treatment for mental health issues or substance abuse.

To promote uniformity, the state court administrative office may create eligibility criteria and mandatory or recommended sanctions for various violations.

This new law has the potential to make life much more difficult for felony probationers. If a person on probation commits even a minor violation (such as not paying a fee on time), she will be arrested and brought before the judge up to 3 days later. The judge will also have less discretion in determining the sanctions to apply for each violation. Perhaps most importantly, the requirement that the judge issue immediate sanctions could interfere with the probationer’s ability to contact her attorney or have representation at the probation violation hearing.

2012 PA 612 and 2012 PA 613 (Effective March 1, 2013)

Michigan law gives judges the discretion to allow an inmate to be released from jail in order to seek employment, maintain previous employment, run his own company or household or participate in education or mental health counseling and treatment. These new laws require the county sheriff or the Department of Corrections to verify that the inmate is actually employed or enrolled before releasing the inmate for any of the reasons described above. This verification must happen within 7 days of sentencing. In any case, the county sheriff must give approval to the release and can withdraw approval at any time. A person may also not interfere with any electronic monitoring device issued as a condition of this release or any other alternative to incarceration either before or after conviction.

The additions of sheriff approval and work verification in these new laws could make it more difficult for an inmate to actually be released to participate in work or school. Also, this law places the sheriff’s discretion above the judge’s as to which inmates should be released. Finally, the 7 day delay could negatively affect the inmate’s employment or enrollment where attendance is a concern.

2012 PA 610 (Effective March 28, 2013)

This new law requires any person convicted of a felony and then released for one of the above purposes to be ordered to wear an electronic monitoring device also known as a “tether.” The signal from that device will be monitored by the county sheriff to be certain that the person complies with her work release requirements. The person is responsible for the costs associated with the tether device.

Again, this new law limits the judge’s discretion by requiring tether on all work release cases. It also has the potential to limit the number of total work-release inmates due to a limit on the number of tether devices.

All together, these laws place significant restrictions on the court, probationers, and parolees. They will make it harder for individuals to receive accommodations from sympathetic judges. They also impose more regular penalties for probation violations, further restricting the judge’s discretion. It is clear that the legislature is concerned about the number of probation violations and the frequency of repeat offenses, and is prepared to take steps to stop them.

*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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