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Many criminal offenses include an element of intent. In other words, the prosecution must show that the defendant acted knowingly or intentionally in order to obtain a conviction. When the terms of a criminal statute are vague, however, it may be unclear what evidence is necessary to obtain a conviction. The United States Supreme Court recently clarified what mens rea the prosecution must establish to convict a doctor of disbursing controlled substances in an unauthorized matter in violation of federal law. If you are charged with a drug crime or any other federal offense, it is smart to meet with a Michigan criminal defense attorney to assess your options.

History of the Case

It is reported that the defendant and numerous other pain management doctors were charged with and convicted of operating a medical practice that was essentially a racketeering enterprise in violation of federal law, including the Controlled Substances Act. At trial, the prosecution presented evidence that the defendant prescribed Schedule II drugs outside of the standard of care that applied to his practice and did so for their financial gain rather than the benefit of their patients. The defendant appealed his conviction, and the appellate court affirmed. The defendant then sought certiorari review.

The Mens Rea Needed to Convict a Defendant for Unauthorized Distribution of Controlled Substances

On appeal, the Court answered the question of whether a doctor that allegedly prescribed drugs outside of the usual scope of their professional practice should be convicted of unlawful distribution in violation of the Controlled Substances Act, despite the fact that they intended or reasonably believed that their prescriptions fell within the scope of their practice. Continue Reading ›

The Michigan Rules of Evidence dictate what evidence the state is permitted to use against a defendant at trial. Among other things, it must be relevant. Additionally, evidence that passes the relevance threshold may be deemed inadmissible if it is overly prejudicial. In a recent Michigan matter in which a defendant appealed his murder conviction, a court explained how relevancy and prejudice determinations are made. If you are charged with a crime, it is important to understand what evidence the state may offer to attempt to prove your guilt, and you should consult a capable Michigan criminal defense lawyer to discuss your rights.

The Facts of the Case

It is reported that the defendant was convicted of second-degree murder and numerous other crimes following the shooting death of his wife. During the trial, the state introduced evidence of the defendant’s past infidelity, among other things. Following his conviction, the defendant filed an appeal, arguing in part that the trial court improperly permitted evidence of his infidelity. The appellate court disagreed and affirmed his conviction.

Evaluating Whether Evidence is Relevant or Prejudicial

The appellate court noted that the parties did not dispute that the defendant shot his wife; rather, the issue was whether the shooting constituted murder or voluntary manslaughter. To demonstrate guilt for voluntary manslaughter, the state needs to show that a person killed someone in the heat of passion that was brought about by sufficient provocation. The state must also show that there was not a lapse of time between the provocation and the event during which a rational person could gain control of their emotions. Continue Reading ›

When the Michigan courts sentence criminal defendants, they will typically rely on numerous factors, like sentencing guidelines and offense variables (OV), to determine what they deem an appropriate penalty. Courts are not immune to errors, though, and if they incorrectly apply the guidelines or calculate the OV improperly, it may constitute grounds for a reversal. Recently, a Michigan court discussed the appellate review of a trial court’s interpretation of sentencing guidelines in a case in which the defendant argued the trial court relied on improper evidence in issuing his sentence for numerous violent offenses. If you are charged with a violent crime, you could face significant penalties, and it is wise to contact a Michigan criminal defense attorney as soon as possible to discuss your possible defenses.

History of the Case

It is reported that the defendant was involved in an incident in which he fired a gun out of a van at another vehicle. One of the people in the other car was ejected and later died from his injuries. The defendant was subsequently charged with multiple offenses and was ultimately convicted of assault with the intent to commit murder, and being a felon in possession of a firearm. He was sentenced as a second-offense habitual offender to 38 to 62 years in prison. He argued that the trial court improperly applied the sentencing guidelines and erred in scoring his OV. The appellate court rejected his reasoning and affirmed his sentence.

Appellate Review of a Trial Court’s Interpretation of Sentencing Guidelines,

Appellate courts review the trial court’s interpretation of statutory sentencing guidelines de novo. In doing so, the appellate court must apply the rules of statutory interpretation. In the subject case, the appellate court explained that its goal in interpreting a statute is to determine and give effect to the legislature’s intent. If the statute’s language is clear and unambiguous, the appellate court will assume the legislature intended its obvious meaning and will interpret it as written. Continue Reading ›

The case of People v. Mead is an important case for Fourth Amendment rights in Michigan.

What Happened in the Case

Mead was a passenger in a car. He had just met the driver, who had offered him a ride. The police stopped the vehicle and ordered the driver and Mead out of the car. The driver consented to a search of the car. The police officer searched the car, including Mead’s backpack, which Mead had left on the passenger seat. The search of the backpack revealed methamphetamine, marijuana, pills, and a digital scale.

Mead was charged with possession of methamphetamine. He filed a motion to suppress the search. The motion was denied, and he later lost a jury trial. The judge sentenced him as a habitual offender to 2 to 10 years in prison.

A cramped airplane is the last place you think a sexual assault would occur, but unfortunately, they happen more than you would think.

New Laws Designed to Protect Airplane Passengers

A sexual misconduct task force bill was reauthorized by the Federal Aviation Administration. Airlines have stated they have no tolerance for sexual harassment or assault in the workplace for their employees or for their passengers.

Several high profile cases have lead to this bill. A sleeping passenger was sexually attacked by a Detroit man. The defendant was dealt a hefty penalty of nine years in prison. A man was caught masturbating next to a female passenger for hours. Lastly, two pilots have been charged with drugging and sexually assaulting 2 flight attendants while on the job.

In Yellowstone County in 1973 a young married couple was strangled to death. The victims were Linda and Clifford Bernhardt. Linda had also been sexually assaulted. The case went on for 45 years with no answers as to who committed such a terrible crime. That was until an online database that traces distant relatives was utilized. GEDmatch was able to determine that Cecil S. Caldwell had indeed murdered and raped Linda Bernhardt and murdered Clifford Bernhardt. Unfortunately, Caldwell died in 2003.

Caldwell was a colleague of Linda’s at the grocery store where the two worked. He had never been convicted of any crimes so his DNA was not in the National Criminal Justice Database. Caldwell appeared to conduct a normal life. He was married with two adopted children at the time of the crime. He then divorced and remarried another women who had children from a previous relationship.

The genetic genealogy has led to the arrests of Joseph James Deangelo, the Golden State Killer in 2018 and Coley MCCraney who raped and killed two young victims. For the family and friends of these victims it is satisfying that the killers were caught alive and held accountable for their actions. However, for Kelly Reich, Linda’s sister, the news is bittersweet. She states for her the resolution of the case does not provide closure or change the end result.

In 1982 Archie Williams was wrongfully convicted of rape, aggravated burglary and attempted murder. He was sentenced to life in prison. Fingerprint technology proved his innocence due to the innocence project, a nonprofit organization that challenges wrongful convictions. The true rapist was identified as Stephen Forbes. Forbes had been convicted of several other rapes and later passed in prison. During the trial Williams had several alibi’s that testified he was sleeping at the time of the crime. The victim, however, identified him in a photographic line-up as the rapist. Therefore, he was found guilty by 11 out of 12 jurors within 5 hours.

Now that he is a free man Williams plans on proving other inmates innocence utilizing DNA and fingerprint technology. Post-conviction DNA testing is now allowed in all states, however the use of the new fingerprint technology is underutilized. Thankfully, in 2014 the fingerprint database was expanded.

ArborYpsi Law Takeaways

There are so many wrongfully convicted inmates that have been sentenced to years if not life in prison. The use of DNA and now fingerprints is a great, factual tool that can free so many victims. It is tragic that people like Williams had to forfeit so much of their lives before being acquitted of their crimes. However, hopefully, cases like William’s will encourage other prosecutors and defense attorney’s to utilize fingerprint technology.

Michigan voters have said yes to legal marijuana. What does this mean for you?

What You Can Do

• A person over 21 can possess up to 2.5 ounces of marijuana. Not more than 15 grams of the marijuana can be in concentrate form.
• A person can use and consume marijuana.
• At home, a person can have up to 10 ounces of marijuana and 12 marijuana plants for personal use.
• A person over 21 may assist another person in the above activities.
• A person may give up to 2.5 ounces of marijuana to another person without payment (15 grams of concentrate.

What You Cannot Do

• You cannot operate a car while under the influence of marijuana. This includes the operation of a boat, plane, ORV, or snowmobile.
• No consumption of marijuana while operating a car or other type of vehicle.
• A person under 21 cannot possess, consume, or cultivate marijuana.
• You cannot transfer marijuana to a person under 21.
• No marijuana consumption in public – unless there is a designated smoking area for people over 21.
• No butane extraction of plant resin.
• No cultivation of plants in a place where the plants may be easily seen from the public.
• No possession of marijuana on the grounds of a school.
• You may not possess more than 2.5 ounces within a residence that is outside of a locked container. So if you have more than 2.5 ounces, it must be secured in a container or area with locks or security device.

Cities

• A city or township may limit the number of marijuana establishments within their municipality or may prohibit them altogether.
• People may petition a city or township to adopt an ordinance to provide for the number of marijuana establishments or prohibit them within the municipality.

Michigan Department of Licensing and Regulatory Affairs

• This Department’s job is to implement the new rules, which includes providing licenses for
  • Class A marijuana grower – 100 plants
  • Class B marijuana grower – 500 plants
  • Class C marijuana grower – 2,000 plants
  • Marijuana retailer
  • Marijuana safety compliance facility
  • Marijuana secure transporter
  • Marijuana processor
  • Marijuana microbusiness

Landlords

• A landlord may prohibit consumption and cultivation of marijuana in a lease agreement.
• A lease may not prohibit lawful possession of marijuana and consumption of marijuana by means other than smoking.

Employers

• The new marijuana law does not require an employer to accommodate marijuana use.
• There is nothing in the new law that prohibits employers from prohibiting marijuana use or terminating employment or discipline for being under the influence of marijuana.

Contact us

Call Sam Bernstein at 734-883-9584 or e-mail at bernstein@arborypsilaw.com.

In a historic vote the people of Michigan have chosen to make marijuana legal for recreational use.

What is Allowed

Those 21 and up can have up to 2.5 ounces of weed on them. They can have up to 10 ounces at home (must be locked up). People may grow up to 12 plants at home for personal use.

What isn’t Allowed

Lighting up in public will still be against the law. Importantly, driving under the influence of marijuana is still against the law. However, this is a change from the current law which prohibits driving with any amount of marijuana in a person’s system. A person is under the influence when their driving is significantly affected by marijuana.

In less than two weeks Michigan voters will go to the polls and decide on legal marijuana. Less than ten years ago Michigan voters overwhelmingly approved medical marijuana. So we’ll see what happens this November 6.

What Are We Voting on Exactly?

Here is the language that you will see on the ballot when you go to vote:

Proposal 18-1