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Criminal Appellate & Post-Conviction Services

Statutory Construction

Supreme Court to Decide Sufficiency of the Evidence in Larceny Case

The Michigan Supreme Court also granted leave to appeal to the Oakland County Prosecutor’s Office to determine whether shoplifting of a $58 bottle of perfume can be charged as a tent year felony of larceny from a person. People v. Smith-Anthony, Supreme Court No. 145371. My article explains why I believe this is wrong. Read More...

Great Drunk Driving Ruling from Canadian Supreme Court

Criminal defendants are frequently charged and convicted for drunk driving for sitting behind the wheel of a parked but running car trying to keep warm. The least sympathetic case happens when the Defendant’s car is stuck in a ditch with fresh tire tracks. Courts will infer the Defendant drove the car into the ditch while being drunk. A more sympathetic situation happens when the Defendant is using the vehicle as a means of temporary shelter and has no intention to move the vehicle.In R. v. Boudreault 2012 SCC 56, there was no question that the Defendant was too drunk to drive -- he asked a friend to call a cab to take him home for precisely this reason. His friend called twice and the cab didn’t come. At that point, the Defendant had to wait outside for the cab on a bitterly cold evening. According to the trial testimony, the temperature outside was -15C (5F). Eventually, the Defendant went to his trunk, started the truck, and waited for the cab. He made no attempt to move the vehicle. He eventually either passed out or fell asleep. When the cab finally showed, the cabbie didn’t try to wake the Defendant; he called the police. When the police arrived, they woke the Defendant and arrested him for drunk driving. The Quebec trial court dismissed the charges against the Defendant (2010 QCCQ 11443 (CanLII)) and the Crown appealed. The Quebec Court of Appeals reversed the dismissal stating that the Defendant had control and dominion over the vehicle (2011 QCCA 2071 (CanLII)). The opinion is in French. Click here for a Google translation of the ruling. The trial court made an express finding of fact that the Defendant had no intent to move the vehicle and did not move the vehicle. The Quebec Court of Appeals stated an intent to move or drive the car was not required.The Canadian Supreme Court disagreed. The Court accepted the trial court’s premise that the Defendant did not have an intent to move the car and that the statute needed to be interpreted in light of the statute’s purpose -- to keep drunk driver’s off the road and to protect the public. “

Parliament’s objective in enacting s. 253 of the Code was to prevent a risk of danger to public safety: Toews at p. 126, citing R. v. Price (1978), 40 C.C.C. (2d) 378 (N.B.C.A.), at p. 384. Accordingly, conduct that presents no such risk falls outside the intended reach of the offence.

Court of Appeals Extends Open Carry Rights

On Friday, the Michigan Court of Appeals ruled that individuals have the right to “open carry” a firearm to a public library. The ruling and various reference links are available under my extended analysis which you can see by clicking the “read more” link below. Read More...

Michigan Supreme Court Hears Orals on McQueen Case on Medical Marijuana - Updated With Video Links

This is an updated version of my story about the October 11th oral arguments on two important medical marijuana cases.
On October 11th, the Michigan Supreme Court will oral arguments on the McQueen case. The issue will focus on whether individuals can act as brokers between patients and caregivers.
Click here for Ms. Chartier’s brief.
The Court will also hear oral arguments on People v Blysma. Blysma is another medical marijuana case. In Blysma the question is whether caregivers can share growing facilities and what protection they need to build into the growing facility to protect the respective caregivers from each other.
Update: Click here for more details on this argument. Click here for the unedited video footage on McQueen. Click here for the unedited video footage on Blysma.

No Clear Winner in Yesterday's Debate: (No, I Don't Mean Biden & Ryan)

Yesterday, the Michigan Supreme Court was hearing oral arguments on People v McQueen and People v Blysma dealing with the contours of Michigan’s Medical Marijuana law. So far, it sounds like the “debate” between Mary Chartier (and Bruce Block) and the Michigan Attorney General’s Office was a coin toss. The only report out so far sounds like it was close. At least no one is being marked down incivility. Stay tuned.

"Who's Your Daddy:" Michigan Supreme Court Decide Whether Presumption Of Paternity Controls Over DNA Test

Also on today’s agenda is People v Zajackowski, Supreme Court No. 143736. The Defendant was convicted of first degree of CSC for sexually assaulting his half-sister. The wrinkle comes in that DNA tests show that the Defendant and the complainant are not related. The Defendant’s birth certificate shows a common father and he was born during a union between his admitted mother and this man. The common law had very strict presumptions of legitimacy for most purposes. The question is whether the Defendant can challenge the claim about who is his father is in the CSC case. Here is a link to the Defendant’s brief, the Family Law Section’s brief, and the Prosecutor’s brief.

MCOA: Giving Money to a Drug Addict to Purchase Drugs is Not Aiding and Abetting the Delivery of a Controlled Substance

COA Says that Beastiality is Not a "Sex Offense" for SORA

SCOTUS Receives Briefs on Misdemeanor Defendant's Right to Own Firearms

As was noted by the by a Las Vegas New Channel, US District Judge Mahan has declared unconstitutional Nevada’s Adam Walsh Act. In order to gain federal grant funding, Nevada modified its registration laws to require numerous individuals previously thought not to be a risk of reoffending to register. Last Friday, a Federal District Judge found this law violated due process.
President Bush signed the federal Adam Walsh Act in 2006 to expand the National Sex Offender Registry and to create national standards for ranking sex offenders. Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (2006). The law established three tiers, rankings based on the crime the offender committed.
Section 111 of the Adam Walsh Act specifically sets out expanded definitions that include registration and notification which were considerably broader than the versions previously used in Nevada. Under this section, a sex offender is “an individual who was convicted of a sex offense.” A sex offense is a criminal offense that has an “element involving a sexual act or sexual contact with another.”
The new provisions physically resemble the three tier system previously used in Nevada, but the federal law is considerably more exapnsive. A tier three sex offender is punishable by more than one year in prison. The individual must have attempted, conspired, or actually committed a sexual abuse or aggravated sexual abuse, an abusive sexual contact against a minor who has not attained the age of thirteen years, or a more severe offense. A tier three offense may also be committed if the offense involves kidnapping of a minor that is not one's own child or if the offense occurs after the offender is a tier two sex offender.
Second tier sex offenders are those who do not fit into tier three, but may still be punishable by more than one year in prison. Tier two includes offenses against a minor, or conspiracy to commit such offenses against a minor, such as: (1) sex trafficking; (2) coercion and enticement; (3) transportation with the intent to engage in criminal sexual activity; and (4) abusive sexual conduct. A tier two offense may also involve: (1) use of a minor in a sexual performance; (2) solicitation of a minor to practice prostitution; or (3) production or distribution of child pornography. [FN72] An offense can also qualify as a tier two if any of these offenses occur after the offender is already a tier one offender. The first tier includes any sex offender who does not squarely fit into categories two or three. Tier one offenders are considered at low risk to reoffend and are not seen as dangerous.
The expansion of the sex offense definition includes any “[1] criminal offense that has an element involving a sexual act or sexual contact with another; [and 2] a criminal offense that is a specified offense against a minor ....” An offense that is consensual is not a sex offense unless the adult victim is under the custodial care of the offender, the victim is not an adult and the offender is more than four years older than the victim, or the victim is under the age of thirteen.
A juvenile is considered to be “convicted” of a sex offense when the juvenile “is 14 years of age or older at the time of the offense and the offense adjudicated was comparable to or more severe than aggravated sexual abuse ... or was an attempt or conspiracy to commit such an offense.”
Nevada used a scheme that required only the most dangerous offenders to appear on the public registry. Under the old law, you could only see offenders ranked two or three. After Adam Walsh, virtually all offenders were on the public registry. The Court found that this retrospective change in the law violated due process.