Appeals Court Clarifies “Usable Medical Marijuana”

How do you determine the weight of usable medical marijuana? That has been at the heart of many medical marijuana cases here in Michigan.

For over a decade, the Michigan Medical Marijuana Act has arbitrarily limited care providers to 2.5 ounces of usable medical marijuana after a harvest, and up to 12 plants per patient during a grow cycle. A skilled grower would be legal before a harvest, but illegal after the harvest. Well grown moisture-laden plants weigh more than the 2.5 ounce limit.

Two months ago, the Michigan Court of Appeals decided People v Manuel, a medical marijuana case from Ingham County. In that case, the Michigan State Police seized 71 marijuana plants and just over a kilogram [approximately 42 ounces] of allegedly dried and thus “usable marijuana”.

An Ingham County Circuit judge granted the accused immunity based on section 4 of the Medical Marijuana Act. The Court of Appeals affirmed this determination.

This published case may become moot after December when the lid gets blown-off the entire medical marijuana industry. The new licensing system provides for industrial-sized grows, seed to store inventory, testing and transport of usable medical marijuana.

In 2012, the Michigan Legislature amended the meaning of the key phrase, “usable marijuana” to mean, “the dried leaves, flowers, plant resin, or extract of the marihuana plant, but does not include the seeds, stalks, and roots of the plant”.  The Manuel case focused on the exact meaning of “dried leaves, flowers, plant resin, or extract.

For those interested, here is the crux of the Court of Appeals’ analysis:

At the evidentiary hearing, [MSU Professor] Telewski testified the weight difference in the marijuana from the time Rozum weighed it immediately after the search (1,195 grams) to the time [MSP forensic scientist] Schafer weighed it in the laboratory on July 2, 2014 (1,068 grams) was best explained by a “loss of moisture, so the material on the earlier date weighed more because it had a higher moisture content than the material that was subsequently weighed several weeks later.”

Although Telewski recorded the weight of the marijuana as 1,169 grams on December 22, 2015, unlike [MSP Detective] Rozum and Schafer, he weighed the marijuana in its packaging and acknowledged that he did not calibrate the scale before taking the weight. Telewski opined that marijuana could take anywhere “from a few days to 14 days” to dry. Defendant testified that he had started drying the marijuana “two or three days” before Rozum executed the search warrant. He planned to keep the material drying “about six, seven days more”. This evidence suggests that the marijuana defendant possessed was “drying” rather than “dried”.

We note that Rozum provided some testimony to the contrary. Specifically, Rozum described the marijuana he found in the tins on the day of the search as “dried marijuana,” explaining that it “felt stiff, rough, dry,” and that it was “crunchy”.  [Bracketed text supplied]

Under our system of laws and court rules, the trial court has wide discretion to resolve factual disputes; an appeals court will only disturb such resolutions when there is an “abuse of discretion”; an abdication of reason.

The Manuel case illustrates this principle. Creating usable medical marijuana is an agricultural process. The harvester relies on certain tried and true agricultural processing techniques and available science.

One of the components of the plant and flower process is drying the plant material. It only stands to reason that plants lose water weight during this part of the commodity process.

Our law firm is aware of a few cases where, somewhere along the trail of prosecution, a defense attorney had enough sense to request that the evidence be brought into court [or, more precisely, into an experts laboratory] and weighed in the later stages of the proceedings, not at the beginning.

The weight of the usable medical marijuana thus becomes a moving target for counsel on both sides. The defendant does not want the sheriff to control the process of weighing the collie weed.

We Can Help

In December 2017, the State of Michigan will begin assessing applications for a series of new medical marijuana licenses. Three classes of grow licenses, based on plant numbers in the hundreds, are available. This new licensure will industrialize and regulate the medical marijuana industry.

If interested in applying for one of the state’s new licenses, contact our firm to schedule a free consultation.

Oakland County Lawyers


Operating While Intoxicated In Your Own Driveway

On Monday, the Michigan Supreme Court decided an interesting operating while intoxicated [OWI] case. After pulling out of his garage, the man was arrested for drunk driving.

Here are the Facts

In People v Rea, neighbors of the accused complained to police about the noise next-door. An officer positioned his vehicle at the base of the man’s driveway, stepping-out to investigate the complaint.

The officer observed the man pull-out of the garage in his car. He flashed his light into the vehicle, alerting the driver to his presence. At that point, the man returned to the garage, striking some boxes along the way.

Upon further investigation, the officer noted the strong odor of alcohol and the slurred speech of the driver. After refusing a PBT, the driver was arrested for OWI. His blood alcohol eventually tested at nearly 3x the legal limit.

Now-retired lawyer, Tim Barkovic, persuaded former Oakland Circuit Judge Colleen O’Brien to grant his motion to quash the information. The Michigan Court of Appeals affirmed the dismissal in a published opinion.

Michigan law prohibits drivers from operating a vehicle while intoxicated, “upon a highway or other place open to the public or generally accessible to motor vehicles.” This case turned on the definition of the “generally accessible” phrase.

The Supreme Court Rules on Operating While Intoxicated

In reversing both the Court of Appeals and the trial court, the Supreme Court concluded:

Defendant’s driveway is designed for vehicular travel. Areas designed for vehicular travel, are by their nature, areas a vehicle is usually capable of accessing. Additionally, there is nothing on defendant’s driveway that would prevent motor vehicles on the public street from turning into it. Given these facts, defendant’s driveway is a place motor vehicles are usually capable of entering. Accordingly, we conclude that defendant’s driveway was generally accessible to motor vehicles under [the drunk driving statute].

The High Court’s analysis asserted that the intermediate appellate court erred by focusing on who had  access to the driveway and garage rather than what objects [i.e. defendant’s vehicle] had general accessibility to these areas.

Other Opinions

In her concurring opinion, Justice Joan Larsen remarked that the facts of this case easily fit within the statutory phrase, “generally accessible to motor vehicles”. She would have waited for a more challenging fact pattern to determine the precise meaning of this statutory phrase.

For example, what if the accused was sitting in his vehicle in the garage and had yet to pull-out onto the driveway? That may have been a closer case from a factual perspective.

Justices Bridget McCormack and David Viviano dissented, asserting the at-issue statutory phrase does not include a private driveway. Again, perhaps a more challenging fact pattern would have made better law.

Free Consultation – Operating While Intoxicated

So there you have it: sitting in a car in one’s own driveway subjects a person to a drunk driving charge. If you are facing an OWI, contact our firm to discuss your options.

Oakland County Lawyers


When to Accept A Plea Bargain

Lawyers have lots of opinions about plea bargains. Many knowledgeable attorneys have different opinions about the plea process, what it means for the accused, and for the criminal justice system.

The Plea Bargain Process

One consequence of plea bargains is that a defendant waives her right to an appeal upon signing the agreement; any appeal from a plea-based conviction is discretionary and not a matter of procedural right. Once the conviction enters against the defendant in a plea, all other options are off-the-table.

“Prosecutors use plea bargains in a number of different ways,” says one criminal defense attorney from Waterford, MI. “For the most part, the prosecutor’s office has an incentive to avoid a lengthy and expensive trial, but they’re not always willing to budge on terms.”

In such an instance, the prosecutor may overcharge the defendant with a number of criminal offenses in order to entice a plea bargain.  The prosecutor will often agree to reduce the charges to something they wanted in the first place, and still avoid the cost of a trial.

A plea bargain arrangement arises when the prosecutor has a weak aspect to their case. Sometimes, they do not charge weak counts at all. In other instances, they make the charge knowing there is room to negotiate with the defense lawyer.

This situation is complex to assess from the defense perspective. On the one hand, the weaker the state’s case, the more likely the prosecutor will offer a plea. On the other hand, if the prosecution’s case is weak enough to warrant a good plea deal, then why would the defense be inclined to take that deal with the possibility of a full acquittal at a trial?

The Cost of a Plea Bargain

“Defendants often bargaining for their freedom,” says our Waterford criminal defense lawyer. “Anything can happen in front of a jury and if the jury says you’re guilty, then you’re convicted. Innocent people occasionally are convicted, so any trial is a big risk. The plea deal is often going to feel like the safest course of action, so even when the accused is innocent, he may end-up taking a plea deal because he is too afraid of the certain jail term that goes along with a jury conviction. Of course, that’s a terrible choice to have to make. It’s a difficult choice, and people are rightfully terrified of losing at trial.”

Plea bargains can happen at any point during the process up to trial. Many judges, however, add to the pressure by disallowing plea bargains on the scheduled date of trial.

When selecting a criminal defense lawyer, be sure to check out that lawyer’s trial track record. Not too many lawyers have effective cross-examination skills. This skill set requires a steady diet of trial work.

Clients also should be wary of defense lawyers that simply plead-out every case. If your lawyer is good, then he or she is always willing to prepare a case for trial. Good things often happen to the client of a well-prepared lawyer.

According to our Waterford colleague, “this often comes down to a matter of money, because the most experienced lawyers are often the ones that can either leverage the prosecution into the best plea, or alternatively win in a jury trial if it comes down to that. Those lawyers come with the high price tag of freedom.”

We Can Help

Assessing whether to take a plea deal requires the client to think carefully about all of the facts in the case. Definitely speak to a competent criminal defense lawyer; a retained lawyer if you can afford the fee.

For our part, we offer a free consultation in such situations. Give our office a call to assess your options.

Oakland County Lawyers


The “Affluenza” Defense in Criminal Proceedings

Much has been made of the so-called “Affluenza Defense” and an apparent disparity of accountability between the rich and the poor. The case of a teenager whose reckless driving resulted in the deaths of four people made national headlines, not simply because of the senselessness and heinous nature of the crime, but because his lawyer argued, to the anger of many, that his lack of foresight should be considered a mitigating circumstance given the fact that he grew up rich and thus did not realize the consequences of his actions.

This is known as a “diminished capacity” defense, in many instances the same as pleading insanity or battered wife syndrome. The defense argues that because this young man led a life of pampered wealth, he wasn’t privy to the machinations of the real world where actions do indeed have consequences.

His light sentence of being forced into an expensive rehab clinic left many outraged. They argued that the judge in this case allowed him off scot free, which is precisely what his parents had allegedly done throughout the course of his life. They argued it was one more free pass in a lifetime of free passes.

“What’s uniquely troubling about this case is that it doesn’t apply evenly to those who aren’t ultra-rich,” says one Oakland County attorney who works with other lawyers in DUI cases. “Here you have an example of a troubled young man who drove under the influence of alcohol and killed four people. Four lives were taken that day, and even as a criminal defense attorney, I find the use of a diminished capacity defense in this instance extremely troubling and the reason for this is that it reduces confidence in our justice system. The same rules that apply to the poor aren’t being applied to rich.”

“While the backlash over the judge’s ruling sparked outrage nationwide, it seems to have flown under the radar that this individual was sentenced to two years prison time for violating his probation,” says another criminal defense attorney from Oakland County. “While I agree that the ruling was somewhat bizarre in the context of four deaths, and a poor or middle class defendant would have received a much stiffer sentence, I also believe that the judge gave him an opportunity to recognize that what he did was wrong, and he failed that test, and is now being held accountable.”

“‘Affluenza’ is not a recognized psychiatric diagnosis,” says one prosecuting attorney from Oakland County. “Diminished capacity is used for psychiatric diagnoses, like schizophrenia or psychotic disorders. In rare cases for battered wives, but we’ve never seen a diminished capacity defense for someone who was just too rich. That’s absurd.”

We have seen a lot over here at Clarkston Legal. This affluenza defense, however, is a crowning travesty.

Oakland County Lawyers


Bill Requires Warrant for PBT for Under 21

Over the years, we have had many clients, most of them college students, submit to a randomly administered preliminary breath test. Often, these people are caught-up in the alcohol sweeps on college campuses.

To obtain the PBT, the police currently need no articulable suspicion or any other reason to subject someone under 21 to a breath test. They could be merely present, minding their own business at a party; it does not matter.

A new bill introduced by Representative Pete Lucido of Shelby Township would require police to obtain a warrant prior to administering the PBT. All warrants must be based on probable cause so the police would need to articulate specific facts to a judge or magistrate in order to obtain the warrant.

Representative Lucido says that the practice of random administration of PBTs to persons under 21 violates the United States Constitution. He says a federal case held as much a decade ago, but the practice continues among law enforcement and the courts here in Michigan.

On its face, this new warrant requirement would seem to make the process of obtaining a PBT impractical. For example, we have been involved in many cases where the police break-up a party, then corral as many as a dozen young people to administer PBTs en masse.

With the new warrant requirement, the police will now need to hold all of these individuals while they contact a jurist and apply for a warrant for each individual. This seems less likely to happen, except in the most obvious of cases.

Not surprisingly, the Michigan Sheriffs Association opposes the bill. The Sheriffs Association points to the added difficulty involved in obtaining a warrant.

The Sheriffs Association believes the warrant requirement removes a valuable law enforcement tool from their kit, nevermind that it is unconstitutional. They say that the bill does nothing to protect our communities from underage drinking.

We will monitor this bill to track its process into law. Meanwhile, if you or a family member are accused of being a minor in the possession of alcohol, contact our office to assess your options.

Oakland County Lawyers


New Law Reduces MIP to Civil Infraction

“Kids will be kids” goes the old adage. Many of us find it difficult to describe the poor decision making, and sometimes outright stupidity, displayed by our youth.

Young adults lack the fully developed reasoning ability to understand the consequences of their actions, and therefore, make bad decisions. Now, thanks to the state legislature, one of those youthful indiscretions –imbibing alcoholic beverages- will no longer pack the same lingering legal punch.

Last month, Governor Snyder signed a bill reducing the penalty for a first-time minor in possession charge to a civil infraction from a criminal misdemeanor. Both the prior law and the new act call for a maximum $100 fine and allow the court to impose additional sanctions and supervision including random drug and alcohol testing, education or counseling, and community service.

As before, under its new civil infraction incarnation, jail is not a sentencing option for the judge. Under the old MIP law, however, a misdemeanor conviction carried the stigma of a criminal record requiring disclosure on job, college, and graduate school applications.

Judicial and law enforcement opinions are mixed as to the new law. Some believe that the criminal penalty acts as deterrent and the result of removing that deterrent will result in increased alcohol use among our youth.

Some judges note that while the misdemeanor penalty is onerous, diversion programs exist which allow otherwise law abiding minors to complete a term of probation and have the record cleared of the offense. The old law gave these judges the option to treat those minors who, at 16 or 17, had serious drinking problems differently than those who just “made a mistake”. The new law removes that option and treats all first time offenders the same by essentially letting them off with the equivalent of a traffic ticket.

Some prosecutors, on the other hand, agree with the new legislation as it still allows the court to supervise the minor and any resultant violations of probation are punished similarly under the new law as under the old. Allowing the minor a “get-out-of-jail-free” card will likely result in fewer challenges to the charges and less time dedicated plea arrangements and court time.

Municipalities should also receive a financial benefit from the new law. The new law results in the issuance of a citation without arrest. The Senate fiscal analysis of the bill determined that there were approximately 40,000 arrests for the purchase, consumption, or possession of alcohol by minors which resulted in approximately 9,300 convictions for a first-offense minor in possession. The Senate determined that eliminating the arrest and reducing the criminal penalty, local law enforcement and municipalities would receive a significant savings on incarceration and prosecution while keeping the revenue generated by the offense the same.

The new MIP law does not take effect until January 2018 due to concessions made in the House in order to get enough signatures to pass. In the interim, the law of the state for a first-time, minor-in-possession conviction remains a misdemeanor.

Now and in the future, help is out there. If you or a family member are charged with an MIP, contact a lawyer familiar with these developments.

Give our office a call to schedule a free consultation to find out what potential penalties you are facing and what options are available.


THC Limits Sought for Drivers Using Marijuana

Despite the marijuana momentum over the past few election cycles, there are some ominous clouds on the horizon for marijuana users, both medical and recreational.

Along with a host of other year-end statutes, Governor Snyder recently signed the Impaired Driving Safety Commission Act, a bill sponsored by Rep Pete Lucido [R Shelby Township]. The new law is designed to task a commission to come-up with limits to the level of THC -the active ingredient in marijuana- a driver can have in his or her bloodstream when operating a vehicle.

This commission has two-years to make recommendations to the governor relative to the levels of THC acceptable and unacceptable in the blood stream of drivers on Michigan highways. The recommendations could become part of the Motor Vehicle Code regarding the impairment of driving a vehicle, joining alcohol as a highly-regulated substance when behind the wheel. Currently, there is no standard in place and measuring a driver’s blood for THC is cumbersome [requiring a warrant and hospital blood draw] and fraught with legal challenges due to the physiology and the chemistry.

No law is without its critics. In this case, many defense experts assert there is no reliable science to determine when a person is impaired due to THC; that measuring THC in a driver’s bloodstream is distinct from the measurement of alcohol and its known correlation of impairment. For his part, Representative Lucido asserts that the study will provide the government with a scientifically supported threshold beyond which you are precluded from operating a vehicle.

This threshold is important when determining someone’s guilt or innocence in a court of  law. If the science [or methodology for measurement] is unsound, it is subjected to rigorous cross-examination. The prosecutor has the burden of production and persuasion in every criminal case; the evidentiary standard -beyond reasonable doubt- is high.

Already, there has been some blow-back to the roadside saliva testing pilot program rolled out last summer by the Michigan State Police; more on that in this post.

If the science is unsupported or can be debunked, it becomes tainted by defense attorneys as “junk science”. A pair of SCOTUS decisions [Daubert and Frye] and their progeny, require an expert witness to base opinion testimony on scientific principles and tested scientific methodology. Criminal convictions cannot be based on junk science.

Let’s see what the Commission comes up with in 2018. While the state’s interest in keeping our roadways safe is very important, it cannot be based on conjecture and speculation.

Meanwhile, at the federal level, the DEA has just published a “final rule” in the Federal Register classifying all forms of marijuana extracts [edibles] -even those without THC- on the dreaded Schedule 1. Until there is a comprehensive federal policy that does not criminalize marijuana, medical marijuana and its grow industry will never truly get off the ground.

If you are ticketed for driving under the influence of drugs, consider hiring a competent defense lawyer that knows the medical marijuana laws.

Oakland County Lawyers


Appeals Court Clarifies Marijuana Transportation Law

This post highlights a case decided last week by the Michigan Court of Appeals that involves the intersection of the Michigan Medical Marijuana Act and the Marijuana Transportation Act.

Michiganders have been pushing for the legalization of marijuana in the state for years. To date, the legislature has only responded to their pleas by passing statutes legalizing its use for medicinal purposes and, most recently, clarifying the laws for commercial production, medical dispensation facilities, transport, and seed to sale tracking.

The most recent legislation cleared up the legal gray area surrounding commercial transport of medical marijuana by creating a transport license under the revised act. That license, however, comes at a significant cost from both the state and the local licensing authorities.

Until recently, questions about the transport of medical marijuana for personal use went unanswered in the law. Seemingly, there was no definitive answer in the Act or in the cases interpreting the Act regarding whether a medical marijuana patient or caregiver could transport medical marijuana to its final destination to be used by the patient.

The conundrum surrounding transport of medical marijuana for personal use was created by the passage of 2012 PA 460. That statute limited the legal transport of medical marijuana to an enclosed case carried in the trunk of a vehicle or in an inaccessible case in a vehicle with no trunk.

Patients who were otherwise in compliance with the Michigan Medical Marijuana Act (MMMA) were being cited under the newer transportation act and charged with a misdemeanor, even though they had not violated any section of the MMMA. A recently published Michigan Court of Appeals case has clarified enforcement of the marijuana transportation act in conjunction with the MMMA.

In People v. Latz, (Docket No. 328274, decided December 20, 2016), the Court addressed whether enforcement of the marijuana transportation act was preempted by the MMMA’s broad immunity from prosecution of those statutes inconsistent with the MMMA.

Earlier published decisions ruled that those statutes which preceded the passage of the MMMA were superseded by its enactment into law. In the Latz case, however, the Court was asked to determine the legality of a later statute, the marijuana transportation act, which sought to place additional restrictions on the transport of medical marijuana; an otherwise legal activity.

The Court of Appeals determined that those additional requirements, which punished patients and caregivers otherwise in compliance with the MMMA, were impermissible because they were not part of the MMMA itself. The Court has routinely reinforced the broad immunity granted to law abiding patients and caregivers and has extended those protections here.

The opinion seems to support the growing acceptance of marijuana state and nation wide for medicinal purposes (even alluding to recreational) and to reflect the will of an ever growing percentage of the people. Given the passage of a series of laws just a few months ago, legalizing high-volume marijuana production operations, dispensaries, transportation and testing, this was a much needed clarification of the growing body of common law addressing medical marijuana.

Since its passage, law enforcement and prosecutors have been using the transportation act to obtain convictions of otherwise compliant MMMA patients and caregivers. The Act has been widely seen as a tool to re-criminalize the possession of medical marijuana which goes along with law enforcement’s archaic view that the substance has no medicinal value, and to generate revenue for the municipality. Often, those charges have gone unchallenged due to the potential for jail time associated with the misdemeanor nature of the punishment.

Many district and circuit court judges have sided with MMMA patients when faced with prosecutions based on alleged violations of the marijuana transportation act. The Latz case, however, gives patients and caregivers the comfort of knowing that as long as they comply with the tenets of the MMMA, they also are immune from prosecution under the transportation act.

This case will not stop local law enforcement from issuing citations under the marijuana transportation statute. Nor will it prevent prosecutors who are unaware of Latz from seeking convictions under the transportation act.

If you are charged with a crime under the marijuana transportation act, it is imperative that you seek competent legal assistance to get the charges dismissed. We are an experienced law firm on the cutting edge of the evolution of medical marijuana.

Give us a call to schedule a free consultation if you are affected by these emerging evolving laws.

Oakland County Lawyers


Social Host Liability and the Holidays

This holiday season, be careful if you invite people to your home and plan to serve alcoholic beverages. Here is a summary of social host liability in Michigan and a few useful tips to keep your guests safe and avoid legal problems.

Social Host Liability

In Michigan, hosts cannot knowingly serve alcohol to minors or allow consumption of controlled substances by any individual. There are exceptions: minors may consume alcohol as part of a religious ceremony; and controlled substances are legal with a valid prescription.

The courts have held that a swift-acting host, ejecting underage revelers from the premises immediately upon discovering the revelry, avoid social host liability. Most of the caselaw features drunk driving injury or death accidents caused by a minor that leaves a party or social gathering.

A rebuttable presumption arises in the statute where the host is deemed to have allowed possession or consumption of alcohol by minors, or the use of a controlled substance, when evidence is presented on all of the following:

  • The defendant had control over the premises, residence, or other real property.
  • Defendant knew that a minor was consuming or in possession of an alcoholic beverage or knew that an individual was consuming or in possession of a controlled substance at a social gathering on or within that premises, residence, or other real property.
  • The defendant failed to take corrective action.

A conviction under the social host law is a 30-day misdemeanor with a potential fine of $1000.

Quite apart from exposure to criminal charges, a civil case for personal injuries caused by an intoxicated minor driver, or someone under the influence of a controlled substance could be filed against the host.

Precautionary Measures

Be vigilant, especially when teenagers or underage college friends and family get together. If you did a shakedown, we’d bet money an assortment of containers would tumble onto the floor.

Once discovered, a host that quickly ejects the offending minor or other individual is deemed to take reasonable precautions. If a minor is discovered in an intoxicated state, detaining that individual and preventing them from driving are reasonable precautions.

Be vigilant, especially where teenagers or college students are concerned. Do not host a party and then turn a blind eye when the party moves to a secluded area. Also, watch for clues; for all of their bravado, not many young adults can adequately mask the fact that they have been consuming alcohol. If you know, you are liable unless you take reasonable precautionary measures going forward.

BYOB is no defense. Just because the guests arrive to a host’s residence bringing their own beverages does not alleviate the host from liability. As host, you are charged with preventing a minor to even possess alcohol once you are aware someone is in possession.

Grey areas exist. What if the person is a legal adult and resists detention, forcing his or her way to their vehicle? If that person causes an injury or death, and a case is filed against the host, liability would depend on the reasonableness of the precautions taken.

In addition, medical marijuana is a grey area. Technically, a medical marijuana certificate is just that: a certificate. The pot card is not a prescription within the meaning of that term in the social host act; at least that is what a corpus linguistic jurist would conclude.

We Can Help

If you or a family member are facing social host liability, give us a call to schedule a free consultation to discuss your options.


Oakland County Lawyers


Michigan’s Sex Offender Registration Act Challenged in Federal Court

Is Michigan’s sex offender registration act [SORA] and its attendant registration requirements unconstitutional? A group of convicted sex offenders are working their consolidated cases through the federal court system in the Eastern District of Michigan to challenge the act.

Does -v- Snyder

The case, Does v. Snyder, decided by the United States Court of Appeals for the Sixth Circuit in August 2016, characterized SORA as, “a byzantine code governing in minute detail the lives of the state’s sex offenders…” Breaking some new ground, the Sixth Circuit panel framed the issue:

That law has had a significant impact on each of them that reaches far beyond the stigma of simply being identified as a sex offender on a public registry. As a result of the school zone restrictions, for example, many of the plaintiffs have had trouble finding a home in which they can legally live or a job where they can legally work. These restrictions have also kept those plaintiffs who have children (or grandchildren) from watching them participate in school plays or on school sports teams, and they have kept plaintiffs from visiting public playgrounds with their children for fear of “loitering.” Plaintiffs are also subject to the frequent inconvenience of reporting to law enforcement in person whenever they change residences, change employment, enroll (or un-enroll) as a student, change their name, register a new email address or other “internet identifier,” wish to travel for more than seven days, or buy or begin to use a vehicle (or cease to own or use a vehicle).

Are these requirements merely an inconvenience, or are they unconstitutional forms of punishment?

Issues Raised in the Case

Does v. Snyder addressed the issue of whether the requirements of SORA are unconstitutional based on a host of challenges including:

  • whether SORA violates the First Amendment;
  • whether SORA is vague and overbroad;
  • whether the act imposes strict liability of parolees; and
  • whether recent amendments to the act violate the ex post facto clause of the federal constitution.

The federal district court held that SORA was vague in its application due to many factors, including the 1000-foot school safe-zones. Questioning how these zones were determined, the trial judge determined there were no clear markings or boundaries visible to SORA registrants or to law enforcement relative to the zones.

The trial court held that some of SORA’s requirements were unconstitutionally vague and that SORA registrants cannot be held strictly liable for violations of the Act. District Judge Robert Cleland declined to classify the SORA as punishment and ruled that amendments to the Act did not result in ex post facto violations. Both sides filed timely appeals.

The Sixth Circuit decision focused on the issue of ex post facto violations, however, its detailed analysis covered a host of potential constitutional problems contained in the Act. Sixth Circuit Judge Alice Batchelder’s opinion held that the amendments to the SORA constitute a form of punishment. Further, Judge Batchelder stated that retroactive application of the amendments was unconstitutional and must cease.

Although it did not address the other holdings of the lower court, the appeals court identified vagueness, strict liability, and violations of the First Amendment as issues of great public importance. These arguments, however, were rendered moot because the amendments to SORA may no longer be applied to the plaintiff’s in the Does v. Snyder case.

Stay Pending Further Appeal

After the Sixth Circuit decided this case, the court issued a stay to allow Michigan the opportunity to file a petition for a writ of certiorari. Michigan has until December 28, 2016, to file the writ; the Supreme Court may or may not elect to grant the writ.

Given the limited scope of the Sixth Circuit’s ruling, the SCOTUS may wait for another case with broader application to SORA registrants in general; not just those effected by the ex post facto violations of SORA’s amendments. If the SCOTUS grants certiorari and upholds the ex post facto violation finding of the Sixth Circuit, plaintiff’s remaining challenges likely will be decided.

The Effect of this Decision

What does all of this mean? SORA registrants could be relieved of some of the more onerous restrictions of registration including the restrictions on living or working within a school zone. As the Sixth Circuit pointed out, SORA restricts registrants without any type of individual scrutiny to the offense committed.

Changes might bring individual case-by-case assessments and restrict those convicted pedophiles, considered the most heinous of sexual offenses, from living or working in those zones. On the other hand, the so called “Romeo and Juliet” violators would be exempt from this requirement.

Currently, it is too soon to tell if the 2006 and 2011 amendments to the SORA will be stricken by the Courts. Based on the Sixth Circuit’s ruling, additional challenges to the act are not far away.

We Can Help

If you are affected by this evolving law or have questions on what it could mean for your registration requirements, give our office a call to schedule a free consultation. We can advise you of your rights and responsibilities from a defendant’s or a victim’s perspective.

Oakland County Lawyers