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  1. Michigan is an open carry state. There is no law that says it is illegal to do so. The Michigan State Police legal update describes Michigan’s open carry law as follows: In Michigan, it is legal for a person to carry a firearm in public as long as the person is carrying the firearm with lawful intent and the firearm is not concealed. You will not find a law that states it is legal to openly carry a firearm. It is legal because there is no Michigan law that prohibits it; however, Michigan law limits the premises on which a person may carry a firearm. Prohibited premises: Schools or school property but may carry while in a vehicle on school property while dropping off or picking up if a parent or legal guardian Public or private day care center, public or private child caring agency, or public or private child placing agency. Sports arena or stadium A tavern where the primary source of income is the sale of alcoholic liquor by the glass consumed on the premises Any property or facility owned or operated by a church, synagogue, mosque, temple, or other place of worship, unless the presiding official or officials allow concealed weapons An entertainment facility that the individual knows or should know has a seating capacity of 2,500 or more A hospital A dormitory or classroom of a community college, college, or university A Casino Anyone with a concealed pistol license (CPL) may carry a non-concealed firearm in the above listed premises. And it’s important to note a CPL holder is not required by law to carry a pistol concealed. A CPL holder may carry a pistol concealed or non-concealed. Private Property A private property owner has the right to prohibit individuals from carrying firearms on his or her property, whether concealed or otherwise, and regardless of whether the person is a CPL holder. If a person remains on the property after being told to leave by the owner, the person may be charged with trespassing. Schools Michigan schools are allowed to make their own rules about guns. The Michigan Court of Appeals ruled school districts are allowed to ban guns from their buildings and ask anyone with a gun to leave. Trespassing charges can be pursued if the person does not leave the school when asked. M I C H I G A N S T A T E P O L I C E LEGAL UPDATE O C T O B E R 2 6 , 2 0 1 0 FIREARMS LAW As more and more police officers are encountering citizens who are openly carrying firearms in Michigan, the Michigan State Police offers this special edition of the Update to assist officers in familiarizing themselves with Michigan laws regarding both open and concealed carrying of firearms. Open carry of firearms In Michigan, it is legal for a person to carry a firearm in public as long as the person is carrying the firearm with lawful intent and the firearm is not concealed. You will not find a law that states it is legal to openly carry a firearm. It is legal because there is no Michigan law that prohibits it; however, Michigan law limits the premises on which a person may carry a firearm. MCL 750.234d provides that it is a 90 day misdemeanor to possess a firearm on the premises of any of the following: A depository financial institution (e.g., bank or credit union) A church or other place of religious worship A court A theater A sports arena A day care center A hospital An establishment licensed under the Liquor Control Code The above section does not apply to any of the following: The owner or a person hired as security (if the firearm is possessed for the purpose of providing security) A peace officer A person with a valid concealed pistol license (CPL) issued by any state A person who possesses on one of the above listed premises with the permission of the owner or owner’s agent Officers must be aware of the above exemption for valid CPL holders as many of the citizens who openly carry firearms possess valid CPLs. An individual with a valid CPL may carry a non-concealed firearm in the above listed premises. A CPL holder is not required by law to carry a pistol concealed. A CPL holder may carry a pistol concealed or non-concealed. A private property owner has the right to prohibit individuals from carrying firearms on his or her property, whether concealed or otherwise, and regardless of whether the person is a CPL holder. If a person remains on the property after being told to leave by the owner, the person may be charged with trespassing (MCL 750.552). MCL 750.226 states it is a felony for a person to carry a dangerous weapon, including a firearm, with the intent to use the weapon unlawfully against another person. Possession of firearms in public by a minor is addressed in MCL 750.234f. Brandishing firearms MCL 750.234e provides that it is a 90-day misdemeanor for a person to knowingly brandish a firearm in public. Brandishing is not defined in Michigan law and there are no reported Michigan cases that define the term. Attorney General Opinion No. 7101 provides guidance and states, “A person when carrying a handgun in a holster in plain view is not waving or displaying the firearm in a threatening manner. Thus, such conduct does not constitute brandishing a firearm….” In the absence of any reported Michigan appellate court decisions defining “brandishing,” it is appropriate to rely upon dictionary definitions. People v Denio, 454 Mich 691, 699; 564 NW2d 13 (1997). According to The American Heritage Dictionary, Second College Edition (1982), at p 204, the term brandishing is defined as: “1. To wave or flourish menacingly, as a weapon. 2. To display ostentatiously. –n. A menacing or defiant wave or flourish.” This definition comports with the meaning ascribed to this term by courts of other jurisdictions. For example, in United States v Moerman, 233 F3d 379, 380 (CA 6, 2000), the court recognized that in federal sentencing guidelines, “brandishing” a weapon is defined to mean “that the weapon was pointed or waved about, or displayed in a threatening manner.” Transporting firearms Michigan law details how firearms may be transported in a vehicle. MCL 750.227c and MCL 750.227d discuss the transportation of firearms, other than pistols, in vehicles. MCL 750.227(2) makes it a felony for a person to transport a pistol anywhere in a vehicle unless the person is licensed to carry a concealed pistol. Exceptions to the above statute are found in MCL 750.231a. One such exception allows for transportation of pistols in a vehicle for a “lawful purpose.” A lawful purpose includes going to or from any one of the following: A hunting or target area A place of repair Moving goods from a home or business to another home or business A law enforcement agency (for a safety inspection or to turn the pistol over to the agency) A gun show or place of sale or purchase A public shooting facility Public land where shooting is legal Private property where a pistol may be lawfully used. MCL 750.231a also provides that a pistol transported for a “lawful purpose” by a person not licensed to carry a concealed pistol must be all of the following: Unloaded In a closed case designed for firearms In the trunk (or if the vehicle has no trunk, it must not be readily accessible to the occupants) There is no way to “open carry” a pistol in a vehicle. An individual, without a CPL or otherwise exempted (e.g., a police officer), who transports a pistol in a vehicle to an area where he or she intends to “open carry” may be in violation of MCL 750.227. Carrying concealed weapons MCL 750.227 also makes it a felony for a person to carry a concealed pistol on or about his or her person unless the person is exempt under MCL 750.231 or MCL 750.231a. Complete invisibility is not required. The carrying of a pistol in a holster or belt outside the clothing is not carrying a concealed weapon. Carrying a pistol under a coat is carrying a concealed weapon. Op. Atty. Gen. 1945, O-3158. According to the Court of Appeals in People v. Reynolds, a weapon is concealed if it is not observed by those casually observing the suspect as people do in the ordinary course and usual associations of life. 38 Mich App. 159 (1970). Firearms Act MCL 28.422 provides that a person shall not purchase, carry, possess, or transport a pistol in Michigan without first having obtained a License to Purchase and registering the pistol. The statute contains exemptions for certain persons and additional exemptions are located in MCL 28.422a and in MCL 28.432. A person with a valid Michigan CPL does not have to obtain a License to Purchase; however, he or she still has to register the pistol after he or she purchases or otherwise acquires it using a Pistol Sales Record (MCL 28.422a). Violation is a state civil infraction. Gun Belongs To Another Person? Additionally, a person with a valid CPL can carry, possess, use, or transport a properly registered pistol belonging to another (MCL 28.432). Gun Records Pistol buyers are required to have in their possession their copy of the License to Purchase or Pistol Sales Record when carrying, using, possessing, and transporting the pistol for 30 days after they acquire the pistol. These records are commonly referred to as Registration Certificates or Green Cards. Officers are reminded that after 30 days, there is no requirement to have either record in their possession or to keep either record. CPL (Where It Get Confusing) MCL 28.425o provides that a person with a valid CPL shall not carry a concealed pistol in a pistol free zone. The following is a list of the premises (excluding parking lots) included in the statute: First offense is a state civil infraction. School or school property, except a parent or legal guardian who is dropping off or picking up a child and the pistol is kept in the vehicle Public or private day care center Sports arena or stadium A bar or tavern where sale and consumption of liquor by the glass is the primary source of income (does not apply to owner or employee of the business). Any property or facility owned or operated by a church, synagogue, mosque, temple, or other place of worship, unless authorized by the presiding official An entertainment facility that has a seating capacity of 2,500 or more A hospital A dormitory or classroom of a community college, college, or university A casino (R 432.1212, MCL 432.202) Note, the above statute applies to CPL holders carrying a concealed pistol. If the CPL holder is carrying a non-concealed pistol, the statute does not apply. As noted above, the unlawful premises listed in MCL 750.234d do not apply to persons with a valid CPL. Therefore, a person with a valid CPL may carry a non-concealed pistol in the areas described in MCL 28.425o and MCL 750.234d. Additionally, the above listed pistol-free zones for CPL holders do not apply to the following individuals when they are licensed to carry a concealed weapon: Retired police officers Persons employed or contracted by a listed entity to provide security where carrying a concealed pistol is a term of employment Licensed private detectives or investigators Sheriff’s department corrections officers State police motor carrier officers or capital security officers Members of a sheriff’s posse Auxiliary or reserve officers of a police or sheriff’s department Parole or probation officers of the department of corrections Current or retired state court judges Out-of-state residents Non-residents may legally possess a firearm more than 30 inches in length in Michigan. In order for a non-resident to possess a pistol in Michigan, he or she must either be licensed to carry a concealed pistol or be licensed by his or her state of residence to purchase, carry, or transport a pistol. The ownership of property in Michigan does not qualify a non-resident to possess a pistol in Michigan. Non-resident concealed pistol possession. MCL 750.231a makes it legal for a non-resident of Michigan with a valid CPL issued by his or her state of residence to carry a concealed pistol in Michigan as long as the pistol is carried in conformance with any and all restrictions appearing on the license. Individuals with out of state CPLs are subject to Michigan laws that govern Michigan CPL holders. As many states issue CPLs to out of state residents, officers should verify that the person actually resides in the state that issued the license. If the person does not reside in the state that issued the license, Michigan does not recognize the CPL and the person may not carry a concealed pistol in Michigan. Possession of pistols by non-residents MCL 28.432 makes it legal for non-residents of Michigan who hold valid CPLs issued by another state to possess a non-concealed pistol in Michigan without complying with Michigan’s pistol registration requirements. Additionally, MCL 28.422 exempts residents of other states from Michigan’s pistol registration requirements therefore, allowing them to possess a pistol in Michigan, if all of the following requirements are met: The person is licensed by his or her state of residence to purchase, transport, or carry a pistol, The person is in possession of the license while in Michigan, The person owns the pistol possessed in Michigan, The person possesses the pistol for a lawful purpose as defined in MCL 750.231a, and The person is in Michigan less than 180 days and does not intend to establish residency here. A non-resident must present the license issued by his or her state of residence to a police officer upon demand. Failure to do so is a 90-day misdemeanor. When transporting a firearm in Michigan, non-residents must transport pistols in compliance with MCL 750.231a (discussed above in the Transporting Firearms section), unless they have a concealed pistol license issued by their state of residence. Officers are reminded that the Fourth Amendment protects citizens from unreasonable searches and seizures. Carrying a nonconcealed firearm is generally legal. Officers may engage in a consensual encounter with a person carrying a non-concealed pistol; however, in order to stop a citizen, officers are required to have reasonable suspicion that crime is afoot. For example, officers may not stop a person on the mere possibility the person may be carrying an unregistered pistol. Officers must possess facts rising to the level of reasonable suspicion to believe the person is carrying an unregistered pistol. Officers are also reminded there is no general duty for a citizen to identify himself or herself to a police officer unless the citizen is being stopped for a Michigan Vehicle Code violation. Here is the link to the Michigan State Police Legal Update from where the information was obtained. Please Note: Laws change so please consult an attorney for any legal questions. The post Is Michigan an open carry gun state? appeared first on Komorn Law. View the full article
  2. The Michigan State Police says it has discontinued the use of 203 breathalyzer machines, and it’s accusing the contractor involved of possible fraud. The Michigan State Police have opened its own investigation into Intoximeters Inc., who calibrate the state’s DataMaster breathalyzer machines. It alleged “performance-related issues” that could lead to more issues with the way the devices were serviced. The issue could go all the way back to the beginning of MSP’s million dollar yearly contract with Intoximeters, which was signed in late 2018. But several defense attorneys say Michigan State Police should not be in charge of any investigation into the matter, and are accusing MSP of a conflict of interest as they investigate one of their own contractors. The attorneys are calling for an independent investigation into the matter. Michael Komorn a Farmington Hills-based defense attorney whose main focus is on DUI and drugged driving cases says that an independent investigation would also help with the question of what happens to the countless DUI cases that might be affected by this. “If we have a full investigation by an independent body, maybe they would make a recommendation,” says Komorn. “That is a better way of going about it where an independent body identifies those who have been harmed, if people have been harmed, and they put forth a remedy of some kind, some redress for people versus some finding that’s in question.” Related Michigan State Police launch an investigation into breathalyzer test results The post Defense Attorneys suggest MSP May Have A Conflict of Interest Over Breathalyzer Investigation appeared first on Komorn Law. View the full article
  3. The Michigan State Police suspended the contract with Intoximeters Inc, the company that issues the state’s breath alcohol testing devices amid concerns the test results could be flawed. A letter written to police departments and prosecutors statewide, stated police officials warned law enforcement agencies about “performance-related issues” with the Datamaster DMT breathalyzer devices, according to The Detroit News . Such issues could affect drunken driving cases. The letter did not identify the problems or how they were uncovered. Attorney Michael Komorn stated “The idea that those two entities that are working together in a contract are now…one of them is investigating the other one for fraud is a remarkable circumstance. ” What is the impact going to be on those that have been convicted of these breath tests that were not disclosed to potentially be accurate that were not properly calibrated” Komorn questioned State police Lt. Michael Shaw stated a stop order was issued when they “noticed some issues with the vendor that was responsible for maintenance and auditing the DataMasters around the state.” “We will be (setting) up a unit in order to assume the responsibilities of that vendor,” Shaw said. “Authorities will keep using the devices, but Michigan State Police, not the vendor, will calibrate them,” Shaw said. State police will also take over the contractor’s duties of certifying and serving the breathalyzer units. Oakland University criminal justice professor Daniel Kennedy said such issues with the breathalyzer devices could be troublesome for drunken driving cases in Michigan. “This could open the floodgates for appeals,” Kennedy said. “In drunk driving cases, one of the first questions any defense attorney asks is, ‘When was the last time the device was calibrated?’ So, if they found problems with how these things were being calibrated, that could wind up being one big mess.” Here is the complete MSP statement on the situation: Based on new information learned over the weekend, the Michigan State Police (MSP) is aggressively investigating potential fraud committed by contract employees of Datamaster vendor, Intoximeters, and also moving today to take all 203 Datamaster DMT evidential breath alcohol testing instruments out of service until MSP can inspect and verify each instrument to ensure it is properly calibrated. In the interim period, the MSP recommends that police agencies utilize blood draws rather than breath tests to establish evidence of drunk driving. On Jan. 10, 2020, the MSP alerted prosecutors and police departments statewide that it had issued a stop order on the current vendor’s contract due to performance-related issues. The vendor, Intoximeters, employs three contract employees who were responsible for servicing all 203 Datamaster DMT instruments in the state, and it is records from these service sessions that are in question. Effective Jan. 10, 2020, fully certified MSP personnel have taken over responsibility for ensuring all Datamaster DMTs are certified, calibrated and serviced according to state law and industry standard. Review of vendor records in the last two days has yielded additional discrepancies that may point to the potential for a more widespread issue with the way in which some instruments were being serviced. While the discrepancies do not directly impact or deal with the results of evidential breath tests, it is concerning that it appears as though some certification records have been falsified. As a result, the MSP has opened a criminal investigation that is looking into possible forgery of public documents. Read the Rest of The Story Here at WXYZ TV See the marijuana test machine that may possibly and could inaccurately cause havoc in the lives of many. Read Also https://komornlaw.com/defense-attorney-says-drivers-should-refuse-new-roadside-drug-tests/ Recent Posts Michigan State Police launch an investigation into breathalyzer test results Defense attorney says drivers should refuse Michigan’s new roadside drug tests The post Michigan State Police launch an investigation into breathalyzer test results appeared first on Komorn Law. View the full article
  4. Defense attorneys say drivers should refuse Michigan’s new roadside drug tests. Multiple defense attorneys say they would advise that their clients refuse Michigan’s new statewide roadside drug tests. They’re too untrustworthy, they said. The penalty for refusing the test is a civil infraction, the fine for which varies by community, but it’s a better option than having unreliable results used to prosecute you in court, said Michael Komorn, a highly experienced drugged- and drunk-driving attorney, who also specializes in marijuana law. With legalization of recreational marijuana in November 2018 and the opening of retail marijuana shops across the state underway, the impact of marijuana on impaired driving and public safety has heightened. The usefulness of the saliva swab tests in identification of drug-impaired driving is exactly what state police hope to determine with a second-yearlong pilot program that kicked off in October. The first year of the pilot program lasted from November 2017 to November 2018 and included 12 police agencies or state police posts in five counties. The second yearlong pilot includes 125 officers, dubbed “drug recognition experts” who are trained to detect drug impairment and administer saliva tests. To become a drug recognition expert, participating law enforcement must complete 72 hours of classroom study and 40 hours of field training. Read the Rest of The Story Here at MLIVE The post Defense attorney says drivers should refuse Michigan’s new roadside drug tests appeared first on Komorn Law. View the full article
  5. The Michigan Supreme Court says the public can bring laptops, tablets and phones into local courthouses. The public can now bring cell phone, tablets and laptops into Michigan courthouses under a groundbreaking policy announced Wednesday by the state Supreme Court. The new rule covers the use of electronic devices in courtrooms and clerk’s offices, where public documents are stored. Of course many elected clerks had opposed the policy during the drafting stage because it would allow people who voted for them to copy PUBLIC RECORDS and avoid fees source of revenue beyond what they are already absconding anyway. Surely they will make it up somewhere else like the government always does. The rule change improves access and “will help make sure the doors to our courts are open to all,” Chief Justice Bridget McCormack said. The public can bring electronic devices into courtrooms to take notes, use the internet or exchange email and text messages, under the rule, which starts May 1 in circuit, district and probate courts. Photos or video are prohibited unless approved by a judge. Copies of court documents can be made as long as the “device leaves no mark or impression on the document and does not unreasonably interfere with the operation of the clerk’s office,” the rule states. The rule says judges can restrict devices if the activity “is disruptive or distracting to a court proceeding.” Policies regarding phones have varied throughout the state. In Macomb County and Kent County the courthouse allows phones but Oakland County and the Wayne County criminal courthouses do not. Source: AP – Read More The post Michigan Supreme Court Gives OK to Phones in Courts appeared first on Komorn Law. View the full article
  6. You Won’t Lose Your Gun Just For Smoking Recreational Marijuana – In Illinois. 11,000 marijuana conviction expungements on 2020 new years day – In Illinois. One database fills while another “empties”. Rumors that Illinois gun owners will lose their firearms if they use cannabis under the state’s new legalization mandate are false. That’s according to multiple authorities after major news outlets published stories claiming gun owners who purchase adult-use cannabis in Illinois would be placed into a database banning them from buying firearms. The Illinois State Police said Dec. 31 it will not revoke Firearm Owner Identification Cards based solely on someone’s marijuana usage. Illinois State Rifle Association lobbyist Ed Sullivan said cannabis dispensaries cannot share identifying information with law enforcement agencies unless the customer authorizes it. But Sullivan notes the federal government still considers marijuana a Schedule I narcotic. He said this allows the federal Bureau of Alcohol, Tobacco, and Firearms (ATF) to obtain the records of medical cannabis users and potentially restrict their ability to buy guns from Federal Firearms License (FFL) dealers. “If you intend to use cannabis and own a firearm taking the recreational cannabis route has less potential, detrimental effects on your 2nd Amendment rights than the medical cannabis route,” Sullivan said. What about Michigan… Is anybody out there? Hello?…………………..What about Michigan? Read the Rest of the Story Here Recent Posts You Won’t Lose Your Gun Just For Smoking Recreational Marijuana Marijuana Regulatory Agency Releases Licensing for Adult-Use Applications National Expungement Panel of Legislators in Michigan Federal Court Dismisses Lawsuit Against Cops Accused Of Stealing $225K Michigan State Police Drunk Driving Audit Report The post You Won’t Lose Your Gun Just For Smoking Recreational Marijuana appeared first on Komorn Law. View the full article
  7. Overcharged As it goes, my clients were overcharged with crimes involving drugs, guns, bombs and money. We litigated this case for over three years including 5 days of preliminary exam testimony, and several motions litigated at the District Court and the Circuit Court. We had made several appearances in circuit court in our continued effort to challenge the governments search and seizure of evidence because of the illegal “Knock and Talk” Knock and Talk When the police don’t have enough evidence to get a search warrant, they sometimes employ a procedure they have nicknamed “knock and talk” to investigate further. Courts have ruled that a police officer has the same right as an everyday citizen (for example, a Girl Scout selling cookies) to visit your house, knock on your front door, and ask to speak with you. Unfortunately, abuses of the “knock and talk” technique are now rampant. Two Cases Two somewhat recent cases in Michigan have helped clarify the law in this area. In one case, from 2015, when no one answered the front door, the police started walking around the property knocking on back doors and side doors until they spotted some marijuana through a window in the back of the house. The instinctual fourth amendment argument is that the police need a warrant before they roam around your back-yard peering into your windows. In July 2016, however, the Supreme Court dismissed the appeal without deciding the issue. People v. Radandt That same month a similar case before the Michigan Supreme Court, was heard, arguing that a so-called “knock and talk” violates the Fourth Amendment when it is conducted in the middle of the night. Michigan Supreme Court – People v. Radandt 2016 Michigan Supreme Court 2016 PDF Michigan Court Of Appeals – People v Randandt vs Fuller 2014 People v. Frederick; People v. Van Doome In June 2017 the Michigan Supreme Court agreed with this argument and held that the police were trespassing, and therefore violating the Fourth Amendment, when they woke up suspects and their families in the middle of the night to interrogate them in their homes. People v. Frederick; People v. Van Doorne; In People v Frederick, 500 Mich 228, 895 NW2d 541 (2017), the supreme court considered the scope of the implied license a homeowner extends to the general public in People v Frederick, 500 Mich 228, 895 NW2d 541 (2017). The police had visited defendants’ homes during the early morning hours (4:00 and 5:30 a.m.) and knocked on the door. After conversations during which both defendants consented to searches of their homes, the police searched the homes and recovered marijuana products. The court concluded that the procedure was not a permissible “knock and talk,” which is permitted because the public, and the police, have an implied license to approach the door, knock and wait briefly to be received, and then, if not invited to stay longer, leave. The court reasoned that the scope of the implied license is time sensitive and that generally there is no implied license to knock at someone’s door in the middle of the night. In exceeding the scope of the implied license, the police were trespassing. The trespass, coupled with information gathering (the police were seeking to find something or gain information), constituted a search under the Fourth Amendment, and because the police did not have warrants and no exception to the warrant requirement existed, the approaches violated the Fourth Amendment. The court further held that defendants’ consent, even if voluntary, was invalid unless it was sufficiently attenuated from the warrantless search. A court considers the following factors in making that determination: (1) the temporal proximity of the illegal act and the alleged consent, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. The court remanded the case for a weighing of those factors by the trial court. Back to the Case at Hand The facts of this case were very similar to the Fredericks case. Here several officers ( some in uniform, some in raid gear and none of them in girl scout uniforms), in several different vehicles, (some marked some unmarked), encroached and trespassed upon my clients property, came into the back yard and insisted that FANG had the authority to do a compliance check of their medical marihuana grow. We took issue with the coming into the back yard, because it was a trespass. We also took issue with the concept that a multi-jurisdictional task force has the authority to do a compliance check for MMMA behavior, or would be able to determine compliance if they did have the authority and by asserting the authority ( that they did not have), directly impacted the volition of the alleged consent to search. MCL 333.26426 (g) Possession of, or application for, a registry identification card shall not constitute probable cause or reasonable suspicion, nor shall it be used to support the search of the person or property of the person possessing or applying for the registry identification card, or otherwise subject the person or property of the person to inspection by any local, county or state governmental agency. The evidentiary hearings had been very contentious, and it may be fair to say that the investigators and officers in this matter did not like my suggestions that they had trampled all over my clients 4th amendment rights. Status Quo: Overcharged The original overcharging of by the prosecutor’s office is a common practice. Anytime allegations involve the combination of narcotics and firearms (even if licensed, registered, CCW or CPL) Prosecutors love to charge felony firearm. Felony firearm mandates a 2 years term of imprisonment in the Michigan Department of Corrections to run consecutive to any other sentence. The jury instruction is complicated, and sometimes a compromised jury will think it is doing a favor for the accused and find him or her not guilty of the underlying felony and guilty of the felony firearm only. This is illogical in any legal analysis but does not matter and will still result in a mandatory 2 years in prison. Bomb Making Charge – Because It Exploded One of the more outrageous and memorable examples of prosecutors overcharging, and incidentally was one of the counts dismissed at the exam, was for the crime of bomb making. This count was literally created by the police after seizing legal fireworks, ( what are commonly known as M80’s- flash powder) then testing the fireworks (they blew off some fireworks) and then created a report that concluded that the fireworks were bombs because they created an explosion. As I said this count was dismissed at the exam, but this bomb making count is just another example of the awesome power that the prosecutors have. They are literally the “Kings of the Court Room.” Kings of the Courtroom The Kings of the Courtroom (and Queens) run their kingdom like a well-oiled machine. They have the awesome power to charge any crime they want. It is only the Prosecutors who can add to the charges, amend the charges, increase or decrease the charges or dismiss the charges. And of course, they have absolute immunity from civil liability while doing it. This is the reason that 95-97 percent of people charged with crimes plead guilty. “A study by Northwestern University Law School’s Centre on Wrongful Convictions found that 46% of documented wrongful capital convictions between 1973 and 2004 could be traced to false testimony by snitches—making them the leading cause of wrongful convictions in death-penalty cases. The Innocence Project keeps a database of Americans convicted of serious crimes but then exonerated by DNA evidence. Of the 318 it lists, 57 involved informants—and 30 of the convicted had entered a guilty plea.” “The prosecutor has more control over life, liberty and reputation than any other person in America,” said Robert Jackson, the attorney-general, in 1940. American prosecutors are more powerful than ever before. The Pressure to Plead Guilty Several legal changes have empowered them. The first is the explosion of plea bargaining, where a suspect agrees to plead guilty to a lesser charge if the more serious charges against them are dropped. Plea bargains were unobtainable in the early years of American justice. But today more than 95% of cases end in such deals and thus are never brought to trial.” “Jed Rakoff, a district judge in New York, thinks it unlikely that 95% of defendants are guilty. Of the 2.4m Americans behind bars, he thinks it possible that “thousands, perhaps tens of thousands” confessed despite being innocent. One reason they might do so is because harsh, mandatory-minimum sentencing rules can make such a choice rational. Rather than risk a trial and a 30-year sentence, some cop a plea and accept a much shorter one.” Battle Weary: Back to the Case at Hand As it goes, and only because of our hard work, my client’s will, desire and commitment to this battle, today we were finally rewarded. Clients were beyond joyful for the results today, but even with that said, it is hard to really understand, unless you live through it, just how overwhelming the State can be when they want. All charges were dismissed as to one of the accused, and a plea to a few benign misdemeanors, with immediate sentencing to fines for the other. Case over. It was a long hard battle and one that we were prepared to continue. The motivation to resolve as we did today, was primarily because the allegations in this case had a lot of potential liability. which was one of the motivations to resolve the case as we did. Case Dismissed – Case Closed…It was a good day. See the Court Register of Actions Here Case Register Of Actions-Smith Case Register Of Actions-Burns The post Case Dismissed-Case Closed appeared first on Komorn Law. View the full article
  8. Colorado courts are still trying to figure out the ground rules for people using medical marijuana while on probation, and the state Supreme Court will weigh in when it hears oral arguments Thursday in an El Paso County case where a judge denied a woman’s use of the drug while on probation for DUI. The woman will ask justices to decide whether a defendant must provide evidence that the marijuana is medically necessary or whether probationers can use it unless a judge decides it’s appropriate for the sentence. The case also questions to what lengths a probationer must go to prove the marijuana is critical to their health. Attorneys who represent criminal defendants hope the court’s decision will provide more clarity on the issue. Supreme Court decisions take months. A county court judge prohibited Alysha Walton from using medical marijuana while on probation for a DUI, and a district court judge agreed with the decision. But the Colorado Public Defender’s Office, which represented Walton, has argued the county court abused its discretion and violated Walton’s rights, according to the opening brief to the Supreme Court. The judge placed an undue burden on Walton when she demanded that Walton have her doctor testify in court about the necessity of marijuana, the public defenders said. Walton had brought her state-issued medical marijuana card to court. Read the rest of the story HERE at the Denver Post The post Colorado Supreme Court to weigh in on how judges decide when people on probation can use medical marijuana appeared first on Komorn Law. View the full article
  9. Nearly a year after voters approved adult use of recreational marijuana, Oakland County resident Kevin John Carlson continues to fight a possession/intent to deliver case, which he believes stems from a search warrant that should never have been granted. Carlson, 30, was charged in early 2018 after police searched his Bloomfield Township home and reportedly found marijuana and other evidence — months prior to cannabis being legalized in Michigan. At the time Carlson was a registered marijuana patient and caregiver, legally allowed to have a certain amount of cannabis. The magistrate who issued the search warrant — based on police reportedly smelling marijuana outside the home — was wrong to do so because it wasn’t based on probable cause, Carlson claimed. Thinking of Starting a Cannabis or Hemp Business? When it comes to cannabis and hemp business. Komorn Law is the law firm you need with local as well as international networks and assets when your business needs to go global. Contact our office to find out more information. Call 248-357-2550 The court further found that the 2008 Michigan Medical Marihuana Act didn’t shield Carlson from the search, stating “the police were not obligated to determine, before obtaining a search warrant, the legality of the marijuana-related activities inside the defendant’s home and whether the defendant’s activities complied with the MMMA.” However, Carlson’s defense attorney Michael Komorn said the judges failed to address if current Michigan marijuana law can be applied retroactively and are wrong in not considering its relevancy, as well as the state reclassification of medical marijuana as a Schedule II drug — permitted for some use. Carlson’s case is next headed to the Michigan Supreme Court for consideration, which earlier had remanded it to the Court of Appeals. “This case is important for Fourth Amendment issues (regarding protection against unreasonable search and seizure) for constitutional reasons,” Komorn said, “and for the citizens of Michigan…just because somebody is doing something suspicious, that’s not enough for probable cause.” Read the rest of the story HERE at the Oakland Press By Aileen Wingblad awingblad@medianewsgroup.com @awingblad on Twitter Contact Us For a Free Case Evaluation First Name Last Name Email Phone Message 6 + 10 = Submit The post Is smell enough to justify search warrant? Bloomfield Township man appealing decision on marijuana case appeared first on Komorn Law. View the full article
  10. October 9, 2019 – Iron Laboratories, LLC, a Walled Lake marijuana safety compliance facility that had its license summarily suspended in August, has entered into a settlement agreement with the Marijuana Regulatory Agency (MRA), MRA Executive Director Andrew Brisbo and Michigan Attorney General Dana Nessel announced today. In August, the MRA determined the safety and health of customers and employees was jeopardized by Iron Laboratories’ continued operations. As a result, the MRA took emergency action and issued a formal complaint and summary suspension of the facility’s license for alleged violations related to Iron Laboratories’ testing and reporting results for pesticides, yeasts and molds (microbials), and THC content. Today’s settlement requires Iron Laboratories to pay a $100,000 fine, update its procedures and practices, and provide additional data and reports to the MRA for one year. Several requirements outlined in the settlement agreement must be completed before Iron Laboratories may resume operations. In addition, Iron Laboratories agreed that its Chief Operating Officer, Michael Goldman, would not attend or participate in sampling events, enter or alter data in the statewide monitoring system, or engage in any financial transactions with customers for 180 days. If Iron Laboratories fails to comply with the requirements of the agreement, it could be subject to fines or other sanctions. “While we are pleased that the licensee worked quickly to resolve these issues, it is clear that these actions never should have happened in the first place,” said MRA Executive Director Andrew Brisbo. “It is imperative that our safety compliance facilities – and all of our licensees – adhere strictly to the law and the administrative rules. The diligence with which our enforcement team investigated and brought these issues to light demonstrates the commitment that the MRA has in protecting marijuana patients here in Michigan.” “Michigan’s marijuana laws and rules were established to provide safe sources of medical marijuana to Michigan residents,” said Attorney General Dana Nessel. “Accurate testing and transparent reporting are critical to ensuring a safe product, and misleading or unreliable information only impedes that process. Our office is committed to working closely with the Marijuana Regulatory Agency to take action against those facilities that disregard the rules to the detriment of the public and industry fairness.” A copy of the settlement agreement can be read here. Charged or Arrested for DUI or drugged driving? CONTACT KOMORN LAW TO FIGHT FOR YOUR RIGHTS 248-357-2550 Media + Blog Planet Green Trees Podcast Komorn Law In The News Media Iron Laboratories to Pay 100K Fine as Part of Settlement with Michigan’s MRA Oct 11, 2019 Iron Laboratories, LLC, a Walled Lake marijuana safety compliance facility that had its license summarily suspended in August, has entered into a settlement agreement with the Marijuana Regulatory Agency (MRA) Marijuana Regulatory Agency Releases Licensing for Adult-Use Applications Oct 4, 2019 The Michigan Marijuana Regulatory Agency (MRA) released the application process and requirements for adult-use recreational marijuana business licenses. Michigan AG Establishes Wrongful Imprisonment Compensation Board Sep 28, 2019 September 25, 2019 LANSING –Michigan Attorney General Dana Nessel today established a four-member Wrongful Imprisonment Compensation Act (WICA) Board to review each WICA request and make recommendations on key decisions in the litigation of WICA cases. Once cases... Michigan AG Joins Bipartisan Coalition of 21 Attorneys General Urging Congress to Pass Marijuana Banking Bill Sep 27, 2019 LANSING – Taking steps to protect Michigan’s emerging marijuana industry and its consumers, Attorney General Dana Nessel joined a bipartisan group of 21 Attorneys General Monday, urging Congress to pass legislation that allows legal businesses to access the... National Expungement Panel of Legislators in Michigan Sep 24, 2019 Local Expungement Panel of legislators and victims of the system discuss and tell their stories about working toward getting criminal records expunged for millions throughout the U.S. Federal Court Dismisses Lawsuit Against Cops Accused Of Stealing $225K Sep 22, 2019 A federal appellate court on dismissed a lawsuit claiming that 3 police officers alleged to have stolen more than $225,000 in property from two California men, reasoning that the officers did not violate the men’s Fourth Amendment right against unreasonable search and... Michigan State Police Drunk Driving Audit Report Sep 20, 2019 The crash program has been in existence since Public Act 300 of 1949. All law enforcement agencies in Michigan submit accident data to the MSP Criminal Justice Information Center on UD-10 Traffic Crash Reports. A crash report is completed when: the driver of a motor... The Michigan Medical Marijuana Act: The First 24-Months Sep 17, 2019 In Case You Missed It - What was someone thinking in 2010 about Michigan Medical Marijuana. A blog from way back machine. This article chronicles the implementation of the Michigan Medical Marijuana Act, passed via referendum in the 2008 general election. As expected,... Michigan communities with highest violent crime rate Sep 16, 2019 Benton Harbor was Michigan's most violent city in 2017, based mostly on FBI statistics released Sept. 24. The FBI reported violent crime rates for communities all through the USA. Rape is outlined by the FBI as any sexual assault that entails penetration or tried... « Older Entries The post Iron Laboratories to Pay 100K Fine as Part of Settlement with Michigan’s MRA appeared first on Komorn Law. View the full article
  11. The Marijuana Regulatory Agency (MRA) released the application process for adult-use recreational marijuana business licenses. The MRA will begin accepting adult-use marijuana applications on November 1, 2019. An overview of the licensing process Step one and step two applications for new applicants and existing medical marijuana facility licensees Detailed step-by-step instructions for the online applications Instructions for new applicants and existing marijuana facility licensees for each license type Application checklists Detailed paper instruction booklet including step-by-step instructions for paper applications While the MRA will accept paper applications, it is highly recommended that applicants use the online application, which has been specifically designed to ensure the efficient receipt of all necessary applicant information. Online applications will automatically be moved quickly into the processing system. Two-Step Application Process On November 1, 2019, the MRA will begin accepting applications for marijuana licensing under the Michigan Regulation and Taxation of Marihuana Act (MRTMA) which was passed by the voters of the state of Michigan in November 2018: The MRA will be utilizing a two-step application process: Prequalification Establishment Licensing Thinking of Starting a Cannabis or Hemp Business? If you are thinking about starting a business in this industry you will need legal guidance and corporate counsel. Contact our office or call Komorn Law at (248) 357-2550 to find out more information. Step One – Prequalification The main applicant and all supplemental applicants must submit step one applications for prequalification for review by the MRA. During this step, background checks are completed on the main applicant and all supplemental applicants. There is a $6,000 nonrefundable application fee for the main applicant, which is the entity or the individual seeking to hold the state license. The main applicant is required to submit a step one prequalification application. Supplemental applicants can be entities or individuals. The definition of who is considered a supplemental applicant varies, depending on business structure. Every supplemental applicant is required to submit a step one prequalification application but only the main applicant needs to submit an application fee. It is important that the main applicant does not submit payment until all supplemental applications have been submitted. If payment is received before all supplemental applications are submitted, a notice of deficiency will be sent stating that the main applicant has five days to submit all supplemental applications or the application may be denied. The Marijuana Regulatory Agency will begin to process prequalification applications once the $6,000 prequalification application payment is received. Step Two – Establishment Licensing After the main applicant and all supplemental applicants have successfully achieved step one prequalification, the main applicant can submit step two licensing applications for the license type(s) it seeks to hold. During step two licensing, the MRA will vet the proposed marijuana establishment, including, but not limited to: Business specifications Proof of financial responsibility Municipality information General employee information The physical marijuana establishment must pass an MRA inspection within 60 days of submission of a complete application. Applicants who are seeking licensure as a grower, processor, or a microbusiness must pass a Bureau of Fire Services (BFS) plan review. Additionally, all MRTMA marijuana applicants – except temporary marijuana events and marijuana event organizers – must pass a BFS inspection within 60 days of submission of a complete application. Due to the level of detail involved in the step one and step two adult-use application processes – as well as the time sensitive nature of the process – the MRA strongly recommends achieving step one prequalification before submitting a step two application. Final Approval An applicant cannot be issued a state license until all requirements in the MRTMA and administrative rules are met. After establishment licensing (step two) is completed, an applicant will be required to pay an initial licensure fee for each license. Once the initial licensure fee is received, the license(s) will be issued. There are 17 potential reasons for license denial outlined in Rule 14 of the Adult-Use emergency rules, including the following: The applicant failed to correct a deficiency within five days of notification by the MRA in accordance with Rule 8 (application requirements; complete application) The applicant failed to receive a passing prelicensure inspection within 60 days of a complete application being submitted to the agency The applicant has submitted an application containing false information The applicant or anyone who will have ownership in the marijuana establishment has a pattern of convictions involving dishonesty, theft, or fraud that indicate the proposed marijuana establishment is unlikely to be operated with honesty and integrity The applicant or anyone who will have ownership in the marijuana establishment has a conviction involving distribution of a controlled substance to a minor License Types To be eligible for the following license types, the main applicant does not need to possess a medical marijuana state operating license: Class A Marijuana Grower Marijuana Microbusiness Designated Consumption Establishment Marijuana Safety Compliance Facility Marijuana Event Organizer Temporary Marijuana Event To be eligible for the following license types, the main applicant must possess a medical marijuana state operating license: Class B Marijuana Grower Class C Marijuana Grower Excess Marijuana Grower Marijuana Processor Marijuana Retailer Marijuana Secure Transporter The post Marijuana Regulatory Agency Releases Licensing for Adult-Use Applications appeared first on Komorn Law. View the full article
  12. September 25, 2019 LANSING –Michigan Attorney General Dana Nessel today established a four-member Wrongful Imprisonment Compensation Act (WICA) Board to review each WICA request and make recommendations on key decisions in the litigation of WICA cases. Once cases meet the legal standard of wrongful conviction, the Act ensures exonerees are provided appropriate compensation for the harm they suffered. “These cases are complex and weave together the skill sets of criminal prosecution, criminal defense and civil litigation to ultimately decide whether or not an individual is entitled to compensation,” Nessel said. “It is critically important this board have representation from each of those skill sets to make certain we review all aspects of a case, from every legal angle, before awarding or denying compensation.” Nessel appointed Michigan Solicitor General Fadwa Hammoud, a career prosecutor; Operations Chief Christina Grossi, a career civil litigator; Conviction Integrity Unit Director Robyn Frankel, a former criminal defense attorney; and Criminal Appellate Division Chief John Pallas, a former career prosecutor, to the WICA Board. Nessel also established a protocol to ensure all claims undergo a thorough and systematic assessment before a decision is rendered. While not every case is entitled to relief under WICA, the protocol provides for a timely resolution where compensation is warranted, recognizing the immense material and psychological barriers wrongfully imprisoned individuals experience upon their release. The protocol also safeguards the integrity of the review process by establishing a standard to prevent conflicts and ensure proper communication between parties. Under WICA, a plaintiff is entitled to compensation if he/she can show: 1) new evidence demonstrates that the plaintiff did not perpetrate the crime and was not an accomplice or accessory; 2) the new evidence resulted in the reversal or vacation of the charges; and 3) the new evidence resulted in either the dismissal of all charges or a finding of not guilty on all charges on retrial. Komorn Law The Best Criminal Defense Lawyer You Could Hope For To Be On Your Side Contact Our Office for a free case evaluation (248) 357-2550 or Visit Our Website Recent Posts Michigan AG Establishes Wrongful Imprisonment Compensation Board Michigan AG Joins Bipartisan Coalition of 21 Attorneys General Urging Congress to Pass Marijuana Banking Bill National Expungement Panel of Legislators in Michigan Federal Court Dismisses Lawsuit Against Cops Accused Of Stealing $225K Michigan State Police Drunk Driving Audit Report The post Michigan AG Establishes Wrongful Imprisonment Compensation Board appeared first on Komorn Law. View the full article
  13. LANSING – Taking steps to protect Michigan’s emerging marijuana industry and its consumers, Attorney General Dana Nessel joined a bipartisan group of 21 Attorneys General Monday, urging Congress to pass legislation that allows legal businesses to access the federal banking system. Under existing law, financial institutions are prohibited from providing banking services to marijuana businesses in the 33 states and other U.S. territories where medical or retail marijuana sales are legal. As a result, businesses that comply with state law are forced to operate as cash-only businesses, posing serious safety threats and creating targets for violent and white-collar crime. The legal marijuana industry employs hundreds of thousands of Americans nationwide and is expected to provide more than 40,000 jobs in Michigan by the time the market is fully established, according to the Michigan Cannabis Industry Association. It is estimated that the industry will generate revenue between $50 billion and $80 billion nationally over the next decade. “All legal and legitimate businesses should have a safe place to deposit their revenue and not have to rely on under-the-floor safes to store their legally earned money,” Nessel said. “This is not just a states’ rights issue, this is an issue of safety. The expansion of Michigan’s market to include legal sales of recreational marijuana this year compels us to join this effort to ensure we protect Michigan businesses from becoming unnecessary targets of bad actors.” Komorn Law has been at the forefront of commercial marijuana regulatory compliance since the inception of the industry. Put our extensive experience to work for you by calling us at 248-357-2550 or contacting us online. In their letter, the Attorneys General say that the legislation (H.R. 2093; S. 1028) would provide businesses oversight and reduce the risk of violent and white-collar crime affecting the growing industry by allowing marijuana businesses to access the federal banking system. The “STATES” (Strengthening the Tenth Amendment Through Entrusting States) Act already has bipartisan support with 62 cosponsors in the U.S. House and 9 cosponsors in the U.S. Senate. Nessel joins the Attorneys General of Alaska, California, Colorado, Connecticut, the District of Columbia, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, New Mexico, New York, Nevada, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington in sending this letter. A copy of the letter is available here. Recent Posts Michigan AG Joins Bipartisan Coalition of 21 Attorneys General Urging Congress to Pass Marijuana Banking Bill National Expungement Panel of Legislators in Michigan Federal Court Dismisses Lawsuit Against Cops Accused Of Stealing $225K Michigan State Police Drunk Driving Audit Report The Michigan Medical Marijuana Act: The First 24-Months The post Michigan AG Joins Bipartisan Coalition of 21 Attorneys General Urging Congress to Pass Marijuana Banking Bill appeared first on Komorn Law. View the full article
  14. National Expungement Week events across the U.S. offer expungement and other forms of legal relief to some of the millions of Americans with criminal records. These criminal records can restrict access to housing, employment, education, public assistance, and voting rights long after sentences have been served. National Expungement Week events will work to bring to light the effects of a criminal record and help people to remove these marks and restore part of their lives. National Expungement Panel of legislators and victims of the system discuss and tell their stories about working toward getting criminal records expunged for millions throughout the U.S. for National Expungement Week 2019 at Oakland Community College in Royal Oak. Hosts Sarah Stucker – President of the Oakland Community College Students for Sensible Drug Policy Natalie James – Vice President of the Oakland Community College Students for Sensible Drug Policy Speaker Panel Margeaux Bruner – Political Director for Michigan Cannabis Industries Association. Jewell Jones – State Representative 11th District. Earl Carruthers – Cannabis Entrepreneur Jesse Riggs – Michigan Medical Marijuana Association MORE ABOUT THE EARL CARRUTHERS CASE More documentaries about Earl Carruthers famous “Brownie” court battle with the justice system which has become case law featuring attorney Michael Komorn and others familiar with the case such as Jamie Lowell and Rick Thompson. Video: Michael Komorn Interview about Earl Carruthers Video: Jamie Lowell and Rick Thompson and others Interviews Expunge your criminal record and reap the rewards of a fresh start. Contact our office for a free review to see if you qualify. Call 248-357-2550 The post National Expungement Panel of Legislators in Michigan appeared first on Komorn Law. View the full article
  15. A federal appellate court on dismissed a lawsuit claiming that 3 police officers alleged to have stolen more than $225,000 in property from two California men, reasoning that the officers did not violate the men’s Fourth Amendment right against unreasonable search and seizure. Plaintiffs (Micah Jessop and Brittan Ashjian) claimed that in 2013, three Fresno California police officers executing search warrants at their business and homes seized approximately $150,000 in cash and $125,000 in rare coins. When the two went to the police department the next day, however, only $50,000 had been placed into evidence, which police said was the entire haul submitted in relation to the investigation. Both Jessop and Ashjian were never charged with any crime stemming from the investigation, filed a lawsuit against the three officers, claiming the theft constituted a violation of their Fourth Amendment right to be protected against unreasonable government seizure. The officers responded by filing for summary judgment, arguing that as government officials, they were entitled to “qualified immunity.” Under the doctrine of qualified immunity, government officials are shielded from civil liability for any conduct that does not violate a person’s “clearly established” constitutional rights. -WTF-? Charged or Arrested for DUI or drugged driving? CONTACT KOMORN LAW TO FIGHT FOR YOUR RIGHTS 248-357-2550 In an eyebrow-raising opinion, Circuit Judge Milan D. Smith wrote that because the officers had a warrant to justify the initial seizure of the property, and no prior case addressed those specific circumstances, it was not clearly established whether the subsequent theft of that property violated the Fourth Amendment. “The lack of ‘any cases of controlling authority’ or a ‘consensus of cases of persuasive authority’ on the constitutional question compels the conclusion that the law was not clearly established at the time of the incident. Although the City Officers ought to have recognized that the alleged theft of Appellants’ money and rare coins was morally wrong, they did not have clear notice that it violated the Fourth Amendment,” Smith reasoned. WTF…?!?! “We recognize that the allegation of any theft by police officers—most certainly the theft of over $225,000—is deeply disturbing. Whether that conduct violates the Fourth Amendment’s prohibition on unreasonable searches and seizures, however, would not ‘be clear to a reasonable officer,’” Smith concluded. How about simple robbery charges??? One of the officers alleged to have committed the 2013 theft, Derik Kumagai, was federally indicted in 2014 for accepting a $20,000 bribe from a suspected drug trafficker. He pleaded guilty to conspiring to commit bribery and in May was sentenced to two years in federal prison. Jessop and Ashjian have appealed the decision and petitioned for their case to be heard in front of the entire Ninth Circuit. The post Federal Court Dismisses Lawsuit Against Cops Accused Of Stealing $225K appeared first on Komorn Law. View the full article
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