St. Joseph Michigan Criminal Defense Blog

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Michigan Forfeiture Laws

New Reforms Aim to Improve Michigan Forfeiture Laws

Michigan Forfeiture Laws
In February of 2016, the Michigan legislature passed laws that significantly change how police departments across the state engage in civil forfeiture, a process that has long been controversial because it contradicts the traditional maxim of innocent until proven guilty.

What is Civil Forfeiture?

There are two processes for forfeiture in Michigan: civil forfeiture and criminal forfeiture. Under both processes, police departments can seize items of personal property, such as automobiles and cash, which they suspect have been involved in criminal activity. The difference between the two processes ultimately boils down to two points: who has the burden of proof and what they must prove.

With criminal forfeiture, the burden of proof is on the government, and they must prove beyond a reasonable doubt that the property was used to commit a crime. In a criminal forfeiture action, the government brings an action to temporarily seize a criminal defendant’s property at the same time that he or she is charged with a crime. The police then temporarily confiscate the property until the conclusion of the owner’s case. If the owner is convicted, the property becomes government property; if he or she is found innocent, the property must be returned.

With civil forfeiture, the police are not required to formally charge the owner with a crime before seizing the property; they need only have a suspicion that a crime has taken place. To seize property, the police need only show that it was more likely than not that the property was used in the commission of that crime. Once the property has been seized, the burden of proof shifts to the property owner, who must prove that it is more likely than not that the property was not used in the commission of a crime. If they cannot meet this burden, the seized items will permanently become government property.

The Effect of the New Reforms

Civil forfeiture in Michigan is controversial because it allows police departments to seize personal property with limited evidence, and because it forces the property owner to prove their innocence, rather than forcing the government to prove their guilt.

The new laws enacted by the Michigan legislature aim to make it more difficult for the police to seize property under civil forfeiture. Under the new law, instead of being required to prove their suspicion that the property was used for criminal activity by a preponderance of the evidence (i.e. that such criminal activity was “more likely than not”), police must show criminal use by “clear and convincing evidence”. While this standard is still easier for police to meet than the “beyond a reasonable doubt” standard used for criminal forfeiture, it is significantly harder for the police to meet than the previous standard.

The Importance of Representation in Contesting Civil Forfeiture

Even with the new reforms, it is likely that reclaiming property seized by police under civil forfeiture will remain a difficult and time-consuming process. Often the government will require the property owner to post a bond equal to 10% of the property’s value before the owner can contest its seizure. Even after posting this bond, the process requires the property owner to negotiate with the prosecutor’s office, during which time, they may face significant hardship resulting from their inability to use the seized property.

If you or someone you know has had their personal property seized by the police under civil forfeiture, the most important thing that you can do to maximize your chances is to secure effective legal representation. An experienced attorney can help you navigate the confusing requirements involved in the civil forfeiture process and give you a critical edge in negotiations with the prosecutor’s office for the return of your property. With decades of experience in contesting forfeiture cases, Peter J. Johnson is one of most experienced and reputable defense attorney in Southwest Michigan. To schedule a free consultation regarding your property seized under civil forfeiture, contact Peter J. Johnson Law Office, PLLC at 269.982.1100 or visit www.AttorneyPeterJohnson.com.

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Michigan medical marijuana act

MI Medical Marijuana Act Requirements Trump 2012 Transportation Law

Michigan medical marijuana act
Passed in 2008, the Michigan Medical Marihuana Act (MMMA) decriminalized the cultivation, use and transportation of marijuana that is used for medical purposes. The law also included a provision stating that the Act’s provisions were controlling in determining how medical marijuana would be regulated by the state. Since that time, however, the legislature has passed several laws that add additional restrictions on how marijuana can be grown and transported. The legality of these additional requirements was discussed in Michigain v. Latz, a recent decision by the Michigan Court of Appeals.

In Latz, the defendant was charged with the illegal transportation of marijuana under a 2012 law. That law required medical marijuana transported in an automobile to be either enclosed in a case within the trunk of the vehicle or within a case that was not readily accessible within the interior of the vehicle. Although the prosecution acknowledged that the defendant, a patient under the MMMA, was in compliance with the transportation requirements of the MMMA, it argued that he was nonetheless guilty because he had not complied with the additional transportation requirements of the 2012 law. The defendant in turn argued that the MMMA’s provisions invalidated those of the 2012 law.

Although it found that the 2012 law was likely passed with the intent of adding additional requirements to the MMMA, the court nonetheless ruled in favor of the defendant. In reaching this conclusion, the court noted that the language of the MMMA expressly invalidated other laws that penalized the otherwise legal use and transportation of medical marijuana under the MMMA. Therefore, because the 2012 law added additional requirements for the transportation of medical marijuana that were not present in the MMMA, the defendant could not be penalized for these additional requirements if he had already complied with the MMMA.

For further information concerning the issues surrounding the changes in regulation of medicinal marijuana use in Michigan, contact Peter J. Johnson Law Office, PLLC, a leading drug attorney in Southwest Michigan at 269.982.1100 or visit www.AttorneyPeterJohnson.com.

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Sex Offender Laws

U.S. Supreme Court Denies Request for Stay on Sex Offender Laws Ruling

Sex Offender Laws

U.S. Supreme Court Justice Elena Kagan recently denied a request from the Michigan Attorney-General for an emergency stay. The motion would have halted the rollback of two laws that retroactively punished sex offenders.

The Nation’s Fourth Largest Sex Offender Registry

Michigan’s sex offender registry contains nearly 43,000 people, and has 39,000 pictures with matching names. 32,200 of the people on the list are not in jail or prison. It is the nation’s fourth largest sex offender registry, even though Michigan is ninth in the nation in population. Critics of Michigan’s sex offender registry point out that it is so vast that it encompasses a large number of people who are not truly dangerous.

Laws that Punish People Retroactively Are Unconstitutional

In 2011, a law was passed which retroactively placed certain registered offenders permanently on the public sex offenders list. This statute divided the registrants into three categories based upon the seriousness of their crimes. Previously, individual assessments were used to categorize offenders. Five years earlier, Michigan had enacted a law prohibiting any listed offenders from working, living, or loitering within 1000 feet of a school zone.

A lawsuit was brought on behalf of six individuals by the ACLU and the University of Michigan Clinical Law program challenging the retroactive application of these two laws. Some of the six people for whom the lawsuit was brought were registered offenders because they were older teens who had sex with underage teens – and they would have potentially been on the registry for life.

The 6th U.S. Circuit Court of Appeals found that the two laws placed new, and unconstitutional, restrictions on offenders after they had already been convicted.

An Emergency Stay

Michigan’s Attorney-General appealed the decision and also asked the U.S. Supreme Court for an emergency stay. The purpose of the emergency motion was to block the enforcement of the Court of Appeals ruling until the appeal could be heard by the Supreme Court. The Attorney-General argued that the stay would prevent law enforcement from making time-consuming and costly changes that may not remain in effect if their appeal was successful. The request for the emergency stay was denied.

Significance of the Denial

The significance of the Sixth Circuit’s ruling is that it preserves our constitutionally protected right not to be punished retroactively. If laws such as these are permitted, then the state would have unlimited power to punish people for wrongs that they committed in the past. The denial of the emergency stay means that Michigan’s law enforcement agencies must immediately begin complying the Circuit Court’s ruling.

If you feel that your rights have been violated or that this ruling may affect your case contact Peter J. Johnson Law Office, PLLC, highly experienced and reputable sex offender attorney in Berrien County today 269.982.1100 or visit www.AttorneyPeterJohnson.com for further information.

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Drug Free School Zone

MICHIGAN APPELLATE COURT LIMITS THE APPLICATION OF DRUG-FREE SCHOOL ZONE PENALTIES

Drug Free School Zone

Recently, Michigan’s Court of Appeals restricted a law that punishes defendants who possess drugs within 1000 feet of a school zone. The court held that the prosecution must not only prove that the defendant possessed drugs, but also that the defendant intended to sell drugs within 1000 feet of a school.

Two Drug Raids, One Case

The case began with two entirely separate drug raids, and the defendants had no relation to each other. In the first case, the defendant, Lymance English, was arrested by the police when they discovered cocaine and marijuana during a raid of his home. Meanwhile, a drug raid on the car of Brandon Smith revealed that it contained over two grams of heroin. What both of these cases had in common was that the drugs were within 1000 feet of a school. Therefore, both men were charged with possession with the intent to deliver drugs within a school zone. This charge carries with it enhanced penalties, including a minimum prison term of two years.

In each trial, the defendants contended that the prosecution was required to prove that they intended to deliver the drugs within the school zone. The trial courts agreed and dismissed the counts with enhanced penalties. The two cases were consolidated on appeal.

A Grammar Battle

The appellate case hinged upon the grammatical interpretation of Michigan Statute § 333.7410(3). The statute states that a person breaks the law by “possessing with intent to deliver to another person on or within 1000 feet of school property or a library a controlled substance . . .” Both the prosecution and defendant English argued that the statute was ambiguous. Of course, the two sides argued that the opposite interpretation should be given to the ambiguity: the prosecution’s stance was that the statute does not require the intent to sell, while English argued that it did.

Ironically, it was not English who won the grammar argument. Rather, the court adopted defendant Smith’s view that the law was not ambiguous. The Court found that the plain meaning of the statute requires that it be proven that the defendant intended to deliver a controlled substance within 1000 feet of a school zone.

Significance of the Ruling

What is the significance of this case? Why is it important to prove that a drug dealer intended to deliver drugs near a school? Isn’t possession of the drugs enough? A comparison of the following scenarios can answer these questions:

  1. A drug dealer places marijuana in his trunk with the intent to deliver it to a house many miles away from any schools. On his way to deliver the marijuana, he is pulled over by the police in front of a school and they discover the drugs.
  2. A drug dealer who lives several blocks from a school loads a backpack up with heroin and begins walking toward a school where he intends to sell the drugs to the school children. He is apprehended by the police slightly more than 1000 feet away from the school.

If the prosecution did not have to prove that a defendant intended to distribute the narcotics, then the following would result:

  • In the first scenario, the defendant would receive an enhanced sentence even though he had no intent to sell drugs near the school.
  • In the second case, the defendant would not face the enhanced sentence even though he fully intended to sell drugs to students on school property.

If you or someone you know has been charged with possession of a controlled substance, or for further information concerning the changes in Michigan’s drug laws, contact the highly experienced and reputable criminal defense lawyer in Van Buren County at Peter J. Johnson Law Office, PLLC 269.982.1100 or visit www.AttorneyPeterJohnson.com

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Medical Marijuana Laws

Marijuana Laws

Medical Marijuana Laws

The use and regulation of medicinal marijuana is an issue that was on the ballot in a number of different states this November. The state of Michigan has recently approved a package of bills regarding the licensing, taxation, and regulation of medical marijuana. This new legislation would make some significant changes to the current medical marijuana laws. If you or anyone you know may be affected by the changes in the medical marijuana laws, contact Peter J. Johnson Law Office, PLLC, a drug attorney in Cass County.

Significant Changes in Regulation

Under the new legislation, a five-member bipartisan medical marijuana licensing board will be appointed by the governor. This board, along with the Department of Licensing and Regulatory Affairs, is charged with the duty of overseeing marijuana facilities to ensure that their products satisfy health and safety standards. These standards are similar to those which are imposed for comparable foods and drugs. Those who grow, process, and dispense medical marijuana need to hold a license from the state to do so; the license is good for one year and can be renewed annually. To obtain and retain a license, holders will be subject to extensive disclosure requirements as well as background checks.

In addition, municipalities have control over whether medical marijuana facilities can be located in their jurisdiction. Municipalities must authorize medical marijuana facilities and can set a limit on the number of facilities as well as their location within the municipality. Furthermore, municipalities may charge up to $5,000 as an annual fee to offset the cost of administration and enforcement.

Non-smokeable marijuana such as edible forms has also been approved for medical purposes. This form of medical marijuana can be used by children.

Moreover, medical marijuana dispensaries will have to pay a tax of 3% of their gross receipts in order to operate within the state. This tax will help to support law enforcement regulation efforts. This differs from other medicine in the state of Michigan which is not taxed.

There are also provisions for the transport of medical marijuana, inspection of medical marijuana facilities without notice or a search warrant, insurance, and quality control regulations.

Who is Affected

There are approximately 210,000 people in the state of Michigan who are authorized to grow, purchase, or consume medical marijuana for medical conditions such as: AIDS, cancer, seizures, and chronic severe pain and it’s used by children to the elderly.

Drawbacks to This New Legislation

One of the concerns with the recent changes in the legislation concerning medical marijuana is that the amount of regulation is too extensive and will cause an increase in prices for acquiring the drug. Some argue that this price increase may place an undue hardship on those who are suffering from ailments and need medical marijuana. The National Patients’ Rights Association, on the other hand, contends that the new regulations allow patients access while ensuring that the marijuana is safe and in the appropriate dose.

For further information concerning the changes in regulation of medicinal marijuana use in Michigan, contact Peter J. Johnson Law Office, PLLC, a leading drug attorney in Cass County at 269.982.1100 or visit www.AttorneyPeterJohnson.com.

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