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  1. 8 points
    Komorn Law PLLC is happy to report that the broken criminal justice system shined a light on us today. The battle in Isabella, the State v Team Fisher concluded today with a 14-page opinion that was a joy to read. The Court held that the accused had not only presented proof of the requisite elements of the section 8 defenses, but that no question of fact existed, and therefore all charges are dismissed. To call my client and his family courageous would be an understatement. My client, a registered patient and a caregiver for his wife, also a registered patient, was raided after an alleged anonymous tip and a trash pull. These minimal facts resulted in a search warrant for both his house and shop. According to the Drug Task Force, the raid of these locations resulted in the confiscation of 29 pounds of marihuana and 1 pound of wax. The complaint charged the following crimes: I. Intent to deliver Marijuana MCL 333.7401(2)(d)(ii). A felony punishable by 7 years and imposition of license sanctions. II. Intent to deliver Marijuana plants. MCL 333.7401(2)(d)(ii). A felony punishable by 7 years and imposition of license sanctions. III. Manufacture Marijuana MCL 333.7401(2)(d)(iii). A felony punishable by 4 years and imposition of license sanctions. IV. Possession of a Firearm in the Commission of A Felony contrary to MCL 750.227b A Felony punishable by 2 years, mandatory prison sentence to run consecutively with and preceding any term of imprisonment imposed for the felony or attempted felony. To Wit Count 3 (as the underlying Felony) V. Maintaining a drug house. MCL 333.7405. 2 year and imposition of license sanctions. VI. Maintaining a drug house. MCL 333.7405. 2 year and imposition of license sanctions. Additionally, the drug task force seized every piece or property in the vicinity they could get their hand on, pursuant to the forfeiture law. (no, the amendments have not done a single thing to slow down the DTF’s appetite for forfeiture and the glory of its proceeds). Also, an important part of this story is that my client owned a few guns, and they were in his house at the time of the raid. As is often not reported, but all too often used, the combination of owning a gun and being outside of section 4 escalates what would normally be allegations of illegal marihuana activity to felony firearm charges. If convicted of the felony firearm charges, the crime requires a mandatory 2-year sentence to prison, to run consecutive to any other sentence. That while felony firearm requires possession of the firearm while committing an underlying felony, akin to a person selling drugs on the street with a pistol on their waistband, all too often prosecutors have extended this allegation to include patients and caregivers who are lawful gun owners. And while the law on its face suggests the possession of the weapon and the illegal marihuana behavior be contemporaneous, the law actually permits persons to be charged with felony firearm even when they are not physically possessing the firearm or even at the location where the firearm and the marihuana is located. My client’s garden was contained within the detached garage which was locked and enclosed and not accessible to anyone, and the firearms were contained within the residence, where less than the amount of marihuana allowed pursuant to section 4 was kept. As many attorneys will say, the conversation with your client is much different when the state is charging felony firearm. So with allegation of 29 pounds of marihuana, a pound of wax and felony firearm charges, me and my client and his family put our gloves on and fought back. The preliminary exam, which originally included my client's wife (represented by David Rudoi) and a codefendant (represented by Jessie Williams) took place over three full days, resulting in each of the accused being bound over on all charges. Shortly after getting to Circuit Court, the codefendent was offered and agreed to plead guilty to an innocuous misdemeanor. My client's wife was offered a misdemeanor, but refused to admit that she did anything wrong. As previously mentioned, David Rudoi successfully argued to the Circuit Court judge that there was not enough evidence presented at the preliminary exam to substantiate the charges, or that the state had failed to present even probable cause of a crime, and all charges against my client’s wife were dismissed. At this point in the proceeding, with my client the only remaining defendant in the case, we began to litigate the case. We filed literally 16 motions and litigated each of them, which included hours and hours of evidentiary hearings, and testimony from all of the witnesses involved. It is important to note that the Judge presiding over the case allowed us to litigate the case (didn't fight obstruct or interfere with taking testimony) and was more than prepared for each of the hearings. It was obvious to us that he was conscientious of the issues and did take great efforts to analyze the facts and law for each of the motions we filed. Even though I disagreed with every one of his rulings except one, it was a pleasure to have a Court show more interest in the issues in the case, and my client's due process rights, than the age of the case. For each of the motions filed he issued a written opinion. The list of motions and the court’s rulings are listed below. 1. Motion for a Walker Hearing - Denied 2. Motion to Dismiss based upon an illegal arrest (Ferretti Motion) - Denied 3. Motion to Quash the Information and Bindover of the Felony Firearm Charges Based Upon Constitutional Grounds - Denied 4. Motion to Quash the Affidavit and Search Warrant on Constitutional Grounds - Denied 5. Motion to Reconsider Search Warrant Motion - Denied 6. Motion to Quash Bindover and Dismiss - Denied 7. Emergency Motion to Adjourn - Denied 8. Motion to Quash Search Warrant - Denied 9. Motion to Dismiss Pursuant to Daubert or in the Alternative Set for and (Evidentiary) Daubert Hearing and Memorandum of Law in Support of Dismissal or Evidentiary Hearing Pursuant to Daubert; (challenge to the advisability of the lab reporting based upon the Michigan State Police Forensic Science Division's Crime Lab Scandal #Crimefactory) -Denied 10. Motion in Limine to Exclude Forensic Evidence or Alternatively for a Daubert Hearing - Denied 11. Supplemental Memo in Support of Daubert - Denied 12. Motion to Preclude Evidence Based Upon Judicial Estoppel - Denied 13. Motion to Preclude Evidence Based Upon Relevancy - Denied 14. Motion to Dismiss Pursuant to MMMA Section 4(g), or Preclude Evidence of Paraphernalia and Request for Evidentiary Hearing - Denied 15. Motion to Dismiss Pursuant to Section 4 of the MMMA and the Amendments (That Were Signed into Law September 22, 2016 are Curative and Retroactive) - Denied 16. Motion to Dismiss Pursuant to Section 8 of the MMMA. Granted and all charges (including the felony firearm) dismissed Another interesting issue in the case, and I mention this mostly for instructive purposes, was that the State alleged that my client made an inculpatory statement or confession. According to the police (despite no audio or video recording, or written statement acknowledge by my client of what he actually said) my client purportedly uttered some sentences, which included the following words: "Dispensary, Overages, Sell". Of course my client never spoke these words as the investigators alleged. But he did talk to the police (as often times persons who don't believe they have committed a crime would do) however as it goes when people talk to the police, whatever you say WILL be used against you. (DON'T TALK TO THE POLICE-EVER). As reflected within the 14 page opinion (what a great read) dismissing all charges based upon the MMMA affirmative defense pursuant to section 8, the court took some time addressing the impact of the so called "statement". While the courts final ruling was based upon our arguments minimizing the value of the statement for purposes of the affirmative defense, it was more than obvious to us that this opinion could have gone either way based upon the Court’s interpretation of the law and the impact of the alleged "statement." Let me say it again, DO NOT TALK TO THE POLICE. It is important to note, and this is not legal advice, but at times throughout the case, the State made the following plea offers: Prior to litigating the motions in Circuit Court the State offered my client a resolution that if he Plead to Counts 1) 7 year felony and 5) 2 year high court misdemeanor, they would dismiss the remaining charges, with no sentence agreement. Then after we conducted the Daubert hearing and prior to getting that unfortunate ruling (the motion to reconsider was not necessary) they offered that if my client plead to counts 5 and 6 (2) 2 year high court misdemeanors they would dismiss all the other counts with no sentence agreement. Then of course after we lost the Daubert motion the State withdrew the previous offer, and offered that if my client plead to a 4-year felony and a 2-year high court misdemeanor they would dismiss the rest of the counts with no sentence agreement. Looking back on this case there was a a lot of the blood sweat and tears shed from the backs and brow of Chad, Josh, Steve, Jeff, Dewey, Pam, Deb, David Rudoi, Jesse Williams, Fred Stig-Neilson, Eric VanDussen. Including the all-nighter I pulled Sunday putting together the motion to reconsider regarding the Court’s rulings on Daubert motions (the lab issues), and the preparation for the trial that was to commence Monday - this was a battle that will never be forgotten. Additionally rewarding is the fact that my client’s case and the abusive forfeiture they and many from our community have had to endure, was highlighted in (what is clearly the greatest show ever created) "Weediquette" episode 6 of season 2. Stay tuned, the next series of motions we intend to file will be to compel the return of all of the property that was seized pursuant to the forfeiture (as well as seek other remedies for my client and his wife). I want to congratulate my client and his family for having the will and strength to stand up for what they believed and take on the State on a lopsided playing field in the broken system often called the American judicial system. #TeamFisher #StopTheRaids #KomornLawMI The story continues after the prosecutor appealed our dismissal. http://www.themorningsun.com/general-news/20180326/shepherd-drug-case-reinstated-to-consider-officer-testimony
  2. 7 points
    The panel recommended that director Mike Zimmer add autism to the Act a couple of years ago, but he denied even after the panel approved 4-2. This is the second time we have run an autism petition. On this petition, the vote was 5-1, and we flipped one of the members that previously voted "no." I have a good feeling about the final determination.
  3. 7 points
    Wild Bill

    Changes

    I've been noticing that the topics here are a little more encouraging than they were a couple of years ago. I'm seeing more "caregiver looking for patient", "patient looking for caregiver" etc. than we used to have. I'm also noticing fewer posts about "legal and arrested", "assets forfeited" and "child taken from home". Things are looking up!
  4. 6 points
    Restorium2

    RSO-CBD-CBN oils

    Might as well give some anecdotal evidence; A person very close to me got addicted to opioids. Taking all kinds of those pills. His life was spiraling down and down, out of control. For years and years this went on as we watched in horror. Nothing seemed to work to get him back on track. Then one day he wanted to try some cannabis oil. I gave him a capsule and something changed. He wanted oil and not the opioids. He wanted oil every day. Small amounts. For about a year. Then one day he just quit the oil and decided he just wanted a little cannabis to smoke to take the edge off. God gave him back to us now. I can't express how priceless this is.
  5. 6 points
    Restorium2

    Med card if MI Legal?

    You would have better protections with your right to drive with a positive blood test as a patient. You can make a better case that a patient isn't impaired due to their chronic use. In most cases before a judge, having a necessity defense would be better than a recreational defense. I think that even if you didn't renew after theoretic legalization, having a long line of cards shows that you have done your best to stay on the right side of the law. So patients will always have the upper hand in a defense. There are situations where having a card helps with employment issues. Also, child custody issues. There's a lot of issues that being a carded patient will make easier to explain and handle.
  6. 6 points
    Man won't face jail for technical violation of medical marijuana law Unfortunately all too often we are seeing these types of cases reported in the media regarding the MMMA. I take issue with these conclusions. The law allows each patient 2.5 ounces of usable marijuana and to cultivate up to 12 marijuana plants kept in an enclosed, locked facility. Any registered caregiver can have up to that amount for each patient registered to them (with a maximum of six), including the grower, if each person has an MMMA card. In his wife’s plot were an additional 40 plants, but the agents said Delucenay was the one actually cultivating the crop, not his wife. "You can’t do two grow operations in excess of what the law allows," Kimble said. I patently disagree with this interpretation and firmly believe that the interpretation being used from the People v Bylsma Michigan Supreme Court is wrong. Section 4(d) of the MMMA clearly states that: (d) There shall be a presumption that a qualifying patient or primary caregiver is engaged in the medical use of marihuana in accordance with this act if the qualifying patient or primary caregiver: (1) is in possession of a registry identification card; and (2) is in possession of an amount of marihuana that does not exceed the amount allowed under this act. The presumption may be rebutted by evidence that conduct related to marihuana was not for the purpose of alleviating the qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with this act. The facts presented in this case seem to be unequivocal that the accused and his wife possessed a cards, and were in possession of an amount of marihuana that does not exceed the amount allowed under this act. There were no assertions in this article to suggest the existence of evidence that conduct related to marihuana was not for the purpose of alleviating the qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with this act. The State claimed it was a technical violation, so why is it a “good” or “fair” deal to plead to anything other than a technical violation? Why is the only offer available to the accused to plead to a violation of the controlled substance act, when the accused is allowed to possess and engage in the medical use of marihuana? Michigan’s Medical Marijuana Act (MMMA) "is highly complicated, especially for caregivers," Branch County Circuit Court Judge Bill O’Grady told Kevin Delucenay while the latter faced sentencing. While I disagree with this statement, and suggest complicated is a code word for good for the caregiver and bad for the Police, Prosecutor, and the costs associated with a plea to a controlled substance violation. The question that remains is if it is so complicated, why is the accused guilty of anything, other than being confused like everyone else? Ignorance of the law is no excuse, but confusion of the law is something very different. Too many patients and caregivers who have relied upon the MMMA to protect them have been ensnared in the criminal justice system because of judicial and prosecutorial confusion. I would suggest that before someone is guilty of any crime, the Judge, Prosecutor and the Police must not be confused about the law. Read more: http://www.thedailyreporter.com/article/20141029/News/141028892#ixzz3HZFkElDL
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