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


Medical Marijuana Changes in Michigan

Medical marijuana patients soon will have more legal options for treatment courtesy of the Michigan Senate. Last Thursday, in a break from typical procedure, the Senate pulled a few controversial plans from committee for consideration and a plenary Senate vote.

For a year, the measures languished in committee for lack of votes despite widespread support from the plenary Senate. The three bills passed the Senate by a wide-margin and will be presented to the Governor in the next few weeks.

Medical Marihuana Facilities Licensing Act

The first new law, HB 4209, establishes a tiered licensing and regulation framework for medical marijuana growers, processors, transporters, provisioning centers, and safety compliance facilities. Written approval is required from the municipality where the marijuana facility is to be located.

The license requires annual renewal. In addition, a new state bureaucracy, the Medical Marijuana Licensing Board, will administer and implement this act. Soon the hippy pot farmer will be a relic; replaced with a brand new state bureaucracy.

Amending the Original Medical Marijuana Act

The second law, HB 4210, amends the original medical marijuana act to include marijuana-infused products such as edibles, oils and pills. Parents of minor children with cancer or epilepsy favor these products. The parents would like to avoid smoke-based methods of ingesting THC; the active drug that helps such conditions.

The Marijuana Tracking Act

The third law, HB 4827, creates a seed-to-sale tracking system of all medical marijuana. This bill is tie-barred to the new licensing act. This bureaucracy is charged with tracking the lot and batch information throughout the growth and harvest process. The board will also keep track of all marijuana sales, plant, batch, and product destruction, inventory discrepancies, loss, theft, or diversion of marijuana products; and adverse patient responses.

The three bills will regulate the growth, transport, tracking, processing, and provisioning of medical marijuana. Basically, this is a green light for the commercial production of medical marijuana as well as much needed clarification of the legality of medical marijuana dispensaries. Dispensaries have been operating in a legal gray area since passage of the original act in 2008.

The Consequences

Soon, there will be noticeable changes across the state. The proponents of the bills claim the measures will generate small business opportunity and create increased tax revenue.

These new businesses do face increased regulation with both the tracking system and the 3% tax on the sale of marijuana. The new laws use a tiered licensing system for marijuana distributors and “care providers”.

The Facilities Act requires prior approval by municipal ordinance for a dispensary. Strong opposition is expected in many communities [Birmingham], while others [Royal Oak] may welcome the business. Of course, the increase in a municipality’s general fund may drive the bus for marijuana dispensary ordinance approval.

Applications for a license as a grower, processor, transporter, or seller will be available 180-days after the bills become law. This will allow municipalities time to decide whether to allow the new industry to take root in their communities. The delay also allows the State time to form the regulatory board and fund the bureaucracy with an initial $500,000 investment from the general fund.

While these changes finally provide some clarity for existing dispensaries, it also creates a lot of new regulation that these operations will need to comply with. The several acts, in conjunction, contain a myriad of rules that these operations will need to follow. Running afoul of a minor regulations can result in civil and criminal repercussions for owners, employees, and patients.

We Can Help

Before exposing yourself to harsh sanctions, speak with an attorney knowledgeable with the new legislation.  An experienced lawyer can guide you through this evolving area.

Our office is ready to assist you through this intensive process with experience in business planning, compliance, and municipal law. This emerging market offers tremendous opportunity for those who can establish themselves early as players in the industry.

Give our office a call and schedule a free consultation today in order to get out ahead of the crowd.


Saliva Drug Testing at the Roadside

For some time, we have been watching the development of roadside saliva drug testing for people suspected of driving under the influence of controlled substances like marijuana or cocaine. Two pieces of legislation passed this summer provides for a roadside drug testing. Also, the new law empowers police to take immediate action in accord with the test results.

The New Legislation

The testing method detailed in the new statutes utilizes specially trained officers -drug recognition experts- to administer a saliva test. This test provides an instant [but debatable] roadside result.

A positive saliva test provides the officer with authority under the law to execute a warrantless arrest. A positive test puts you in the hospital for a blood test via the county jail.

One of the new laws, public act 0242, outlines a procedure for a one-year pilot program for saliva drug testing. The Michigan State Police will announce the pilot program for 5 counties in a few weeks. Subject to funding, the tests commence in October.

Operating a vehicle under the influence of alcohol or drugs is illegal in Michigan. In the case of alcohol, a breathalyzer device provides preliminary but court-inadmissible evidence of a driver’s blood alcohol content. This new saliva test is meant to be analogous to the ubiquitous breathalyzer.

Legislative Analysis

Consider the Senate Fiscal Agency’s rationale for the new tests:

The Michigan Vehicle Code prohibits the operation of a motor vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles by a person who is under the influence of, or is visibly impaired by, the consumption of alcohol, a controlled substance, or other intoxicating substance, or a combination of those substances. The Code also prohibits a person from operating a vehicle if he or she has in his or her body any amount of a Schedule 1 controlled substance or cocaine. (Schedule 1 includes substances that are considered to have a high potential for abuse and no accepted medical use in treatment in the United States or lack accepted safety for use in treatment under medical supervision.)

Although Michigan law authorizes law enforcement officers to administer a preliminary chemical breath analysis to determine the presence and level of alcohol in a person’s body, and provides for the admissibility of the results of that analysis in criminal and administrative proceedings, there has been no statutory authorization to administer and rely on a roadside preliminary test to detect the presence of a controlled substance in a driver’s system.

Just who are these Drug Recognition Experts [DREs] that will be interacting with drivers this fall? What is the margin of error for these saliva tests?

Margin of Error

In the case of alcohol, technology has improved the accuracy of the breath tests. Nevertheless, both the roadside PBT and the breathalyzer devices remain subject to error.

Measuring a person’s blood alcohol level requires certain assumptions. Significant variances exist among individuals. These variables include: differences in barometric pressure at the testing location; the machines require proper calibration; and the person administering the test must have thorough training. Although often challenged, courts routinely admit datamaster results frequently leading to convictions.

Unlike alcohol, with its unique physical characteristics, there was no reliable roadside test for marijuana. The requisite blood-draw occurs in a hospital; roadside blood tests are not available. Saliva drug testing provides police with a detection tool utilized at the roadside. Recently, criminal defense lawyers voiced concerns that the roadside saliva test has been rushed into production. Defense lawyers claim that saliva drug testing has yet to be scientifically validated.

We Can Help

If you or a family member are subjected to a saliva drug test resulting in criminal charges, give our law firm a call to schedule a free consultation.

Clarkston Legal


The Importance of an Expert Witness for the Defense

This post examines the importance of retaining an expert witness for the defense to secure a fair trial by Sixth Amendment standards. The post uses a recently decided case to highlight the issue.

A Recent Cold Case Solved

In 1993, Detroit Police found a dead woman in the basement of a Detroit office building. The murder remained unsolved for nearly two decades.

Five years ago, however, a “cold case” unit of the Detroit Police Department sent a vaginal swab from the dead body to the MSP crime lab. A DNA match led to Kennedy’s conviction.

At Kennedy’s trial, his court-appointed defense counsel moved the court for the appointment of a DNA expert; an expert witness for the defense. The prosecutor planned to introduce two DNA experts in order to establish the identity of the murderer. The vaginal swab produced the match with Kennedy along with an unidentified male contributor.

Just last month, a 2-1 Court of Appeals decision affirmed Kennedy’s conviction on various grounds.  The decision includes a ruling that Due Process requirements do not include an expert witness for the defense. The Wayne County Circuit Court judge’s denial of Kennedy’s request was not unconstitutional.

At trial, defense counsel requested the appointment of a DNA expert for a very limited purpose. The only stated purpose for the expert was to coach defense counsel for the cross-examination of the prosecutor’s expert. Rather than appoint an expert for Kennedy, the trial judge simply ordered that defense counsel could “read-up” on the prosecutor’s expert witnesses and could talk with the prosecutor’s experts.

Court of Appeals Addresses DNA Expert

In its per curiam unpublished opinion, the Court of Appeals addressed the Due Process argument concluding that defense counsel did not present a particularized need for the requested expert. Rather than simply requesting the expert for the purpose of coaching defense counsel on technical cross-examination, Kennedy’s lawyer should have clearly laid out the prosecutor’s theory of identification via DNA, and then made a showing of how a defense expert could rebut that showing.

Because the defense counsel took the easy road, his request for a DNA expert was property denied according to the Court of Appeals. Borrowing language from the Michigan Supreme Court from a previous expert witness case, the Court held:

A defendant is not entitled to a DNA expert without making a particularized showing of a need for the expert. It is not enough for the defendant to show a mere possibility of assistance from the requested expert. Without an indication that expert testimony would likely benefit the defense, a trial court does not abuse its discretion in denying a defendant’s motion for appointment of an expert witness.

Defense counsel only suggested that a court-appointed expert would assist with cross-examination preparation. He should have gone further and developed a specific theory that required an expert to convey. With this weak request, the trial court properly denied the motion according to two of the three intermediate appellate judges.

Dissenting Opinion

In her dissent, Judge Cynthia Diane Stephens had this to say about the issue:

This is a DNA case. Nearly two decades ago DNA evidence was collected from the victim, who was both strangled and sexually assaulted. It was only when that evidence was tested that defendant was charged with murder. The age and size of the DNA sample, its storage process and testing methodology were all likely issues of contention in this case. Trial counsel understood that this DNA evidence was the lynchpin of the prosecutions’ case and asked the court for the appointment of Zubel, an eminently qualified expert to assist him in preparing his client’s defense. Zubel was a former prosecutor who trained prosecutors on litigating forensic science issues in criminal cases. The trial court however, denied Zubel’s appointment.

The court seemed to presume that despite the scientific nature of the evidence at issue, counsel could prepare for examination of the prosecutions’ witnesses and otherwise prepare an effective litigation strategy, including plea considerations, through reading and solicitation the advice of some mythical expert who would consult for free.

To the contrary, this is a case like Ake where “[w]ithout a[n] [expert’s] assistance, the defendant cannot offer a well-informed expert’s opposing view, and thereby loses a significant opportunity to raise in the jurors’ minds questions about the State’s proof of an aggravating factor.” At trial, the prosecution presented two forensic experts. Through these experts, the jury learned about DNA, different types of DNA testing, the DNA testing results in this case, and the meaning of the test results as applied to defendant. It was unfair for defense counsel to be expected to thoroughly challenge these experts without, at least the opportunity to consult with an expert of its own.

In preparing for trial, especially in a capital case, it is crucial to develop compelling defense theories and legal arguments. The defense’s case must leave a judge with no discretion, and only one path. That path, however, is not available for most defendants.

Now, the case may proceed to the Michigan Supreme Court for final resolution of this important issue. DNA identification is very compelling, yet very complex.

We Can Help

Our law firm has experience with putting on an expert witness for the defense. Also, we can effectively cross-examine a prosecution’s expert witness.

If you face major criminal charges, consider giving our law firm a call to discuss your options. We offer a free initial consultation. We can help with this tough situation.

Clarkston Legal


Teen-age Assisted Suicide Texter to Stand Trial

Jeeze, sorry about that headline. Nothing, however, quite captures the spirit of our time as our teen-aged youth.

In this intriguing case, Michelle Carter was 17-years old when her boyfriend of sorts, Conrad Roy, -the two had not seen each other in over a year, just text messages- committed suicide using his truck to inflict carbon monoxide poisoning. During his suicide attempt, Roy appeared to have doubts about what he was doing; Ms. Carter texted Roy to get back into his truck and finish the job.

He did, and his death led police to Ms. Carter’s door after they reviewed the thousands of missives exchanged between the two. Over the course of months, Carter repeatedly encouraged Roy to follow-through with his suicide plan.

Based strictly on her electronic communications with Roy, Ms. Carter was charged with involuntary manslaughter. Unlike Michigan, Massachusetts does not have an assisted suicide statute criminalizing conduct associated with a suicide. Therefore, the involuntary manslaughter charge is already a stretch.

Over the past 18-months, Carter’s defense lawyers challenged the initial indictment all the way to the Massachusetts Superior Court.

The trial court denied Carter’s motion to quash the indictment. Her defense team argued that her text messages to Roy were protected by the First Amendment and thus, she cannot be constitutionally charged with a crime on the sole basis of the text messages. They also asserted that she lacked the actus reus of the charged crime; that she was not present; that she did not supply Roy with the physical means of his death; that her only involvement was limited to mere words, albeit words of encouragement.

The High Court affirmed the lower court ruling in a very interesting 23-page slip opinion. The Superior Court concluded:

It is important to articulate what this case is not about. It is not about a person seeking to ameliorate the anguish of someone coping with a terminal illness and questioning the value of life. Nor is it about a person offering support, comfort, and even assistance to a mature adult who, confronted with such circumstances, has decided to end his or her life. These situations are easily distinguishable from the present case, in which the grand jury heard evidence suggesting a systematic campaign of coercion on which the virtually present defendant embarked — captured and preserved through her text messages — that targeted the equivocating young victim’s insecurities and acted to subvert his willpower in favor of her own. On the specific facts of this case, there was sufficient evidence to support a probable cause finding that the defendant’s command to the victim in the final moments of his life to follow through on his suicide attempt was a direct, causal link to his death.

So now the case is remanded to the trial court where a pre-trial has been scheduled for July 29; no trial date has been set. When it finally does occur, the trial will likely focus on whether the text messages support the prosecution’s theory that Carter’s conduct [texting] was reckless to the point of causing a predictable loss of life.


Clarkston Legal