Friedman Legal Solutions, PLLC

Criminal Appellate & Post-Conviction Services

People v Koon reversed. Mich SCt Holds that Medical Marijuana patients can drive as long as they aren't actually intoxicated.

Reversing the Michigan Court of Appeals, the Michigan Supreme Court has held that Medical Marijuana patients can drive cars with a detectable presence of THC in their system as long as they are not actually impaired. The Court of Appeals had ruled that Michigan’s zero tolerance policy on “drugged driving” controlled. This meant that the presence of active THC was sufficient to convict the defendant.

The Supreme Court reversed holding that the protections under Section 4 of the Medical Marijuana Act controlled. The Court specifically noted that Section 7 of the Act provided that nothing in the Act would prohibit the prosecution of actually driving while impaired. The Supreme Court suggested that the Legislature adopt a standard analogous to Washington’s which prohibited 5 ng/ml of THC in a person’s system.
People v Koon, Supreme Court No. 145259

Attorneys Go After Judge Small's Local Sentencing Policy

Judge Kimberly Small of Bloomfield Twp makes no secret that she imposes jail sentences for first time drunk drivers. She has imposed them to otherwise law abiding individuals with a single transgression. I have seen these sentences imposed on accountants, a Friend of the Court employee, and many others. The problem is that trial counsel rarely brings a motion seeking her disqualification and there is no record to appeal. This is apparently changing. Attorneys Robert Larin and Kenneth Mogil have challenged Judge Small’s ability to sit on these cases. They claim that her open sentencing policy constitutes grounds for her disqualification. This is a very talented legal team and it will be interesting to see how it turns out. For more on this challenge, read this article on Michigan Lawyer’s Weekly’s website.

In 1972, the Michigan Supreme Court ruled in
People v Snow, 194 NW2d 314 (Mich 1972), that a trial judge could not have a local sentencing policy. A great deal has changed in the intervening years. It will be interesting to see whether our appellate courts continue to follow this principle.

Michigan Court of Appeals Uphold's "Heidi's Law"

Before January 3, 2007, there was a ten year time limit on how far back a prosecutor could go to charge an habitual OUIL offense. The theory was that an OUIL committed more than ten years ago was not reflective of a person’s current status. To use a Britishism, the conviction had been “spent.” Heidi’s law changed this in Michigan.

The law amended to MCL 257.265 to increase the penalty for persons convicted of driving under the influence if the person has been convicted of the offense 3 or more times regardless of the age of the prior conviction. There have been numerous cases challenging this law around the state with mixed results.

People v Perkins, Court of Appeals No. 281957, the Court of Appeals voted to uphold this law. The Isabella County Circuit Court had found that this was an ex post facto violation. Ex post facto laws are ones that: (1) attach legal consequences to acts before their effective date, and (2) they work to the disadvantage of the defendant.”

The Court of Appeals panel in
Perkins disagreed holding that even though Heidi's Law works to defendants' disadvantage, the "amendment did not attach legal consequences to their prior offenses, which occurred before the amendment's effective date. Rather, the amendment made the consequences of their current offenses, which occurred after January 3, 2007, more severe based on defendants' prior convictions."

This is probably not the law last we’ve heard of this argument.