Medical Marijuana Dispensary DISMISSAL!

As of right now there is only one medical marijuana dispensary criminal case that has been outright dismissed without the possibility of the case being recharged, or of an appeal reversing the dismissal decision – and that case is our case.

Unfortunately, per the agreement with the State, many of the details are sealed. However, I can divulge that our client was an owner and operator of a medical marijuana dispensary in Southeastern Michigan. That dispensary was raided by police and ultimately our client was charged with felonies for distribution of marijuana.

We held the preliminary examination and ultimately, armed with the transcripts from that examination, we set about the task of writing nearly 100 pages of motions and briefs.

As soon as we sent over the motions and briefs to the prosecutor’s office, they called us and waived the white flag. The case didn’t even get out of the District Court. No appeals, no re-charging. Just the complete DISMISSAL of a felony case against a medical marijuana dispensary.

THE TASTE OF VICTORY IS SWEET!

Mistrial Due to a Hung Jury

Not a single lawyer in Oakland County, Michigan has taken a medical marijuana case to trial with a Section 8 Defense and walked away with a “Not Guilty.”

We came closer last week than anyone else has before when a jury refused to come to a decision and the Judge declared a mistrial.

Our client, a Medical Marijuana Patient, was found in possession of just over 20 ounces of marijuana. Pursuant to the Medical Marijuana Act, he was not allowed to possess more than was reasonably necessary to treat his qualifying medical condition. After a lengthy Section 8 hearing, the Judge agreed that we had presented enough evidence to take the medical marijuana defense to the jury (which is a rarity in and of itself.)

The trial last 5 days and the jury deliberated for almost 3 full days before finally deciding that they were too deadlocked to reach a decision one way or the other. The jurors couldn’t decide: 1) Whether or not our client intended to distribute marijuana, or 2) whether our client possessed more than was reasonably necessary to treat his qualifying condition. The jury split was right down the middle – meaning 6 jurors believed he was guilty of something and 6 jurors believed he was entirely innocent.

We have no idea what the future holds with regard to this case, but one thing is for certain: We were able to convince at least 6 people on that jury that our client did not intend to distribute his marijuana and did not possess more than was was reasonably necessary. Hopefully the next time – we will convince all 12!

Another DISMISSAL at the Preliminary Examination!

In the previous post I explained how a preliminary examination works. Within a month after Neil got those felony larceny counts dismissed, he also managed to convince a different Judge to DISMISS ALL felony counts for Possession of a Controlled Substance and Operating a Motor Vehicle Under the Influence of a Controlled Substance – 3rd offense.

Our client was pulled over at night while pulling into his work parking lot. The police officer argued that it was suspicious that he would be pulling into a business parking lot at night due to some recent thefts in the area. Even though we challenged the stop of his vehicle, the Judge did not agree that the stop was unreasonable.

However, We also presented evidence and expert testimony that our client had a prescription for the drugs that he was in possession of and that the amount of the drug that was found in his system was a “therapeutic amount.” In other words, that he was permitted to possess the drug, that he was not impaired by the drug, and in fact the amount in his system was a reasonable amount given his intended usage.

Ultimately, the Judge agreed that we had presented sufficient evidence to prove that our client had not broken the law. The case was DISMISSED WITH PREJUDICE – meaning that the People are not permitted to re-file the charges. Can’t ask for anything more than that! 

DISMISSAL of Several Felonies at the Preliminary Exam

In the Michigan Court System we do not utilize the grand jury proceeding. Instead, legal system utilizes the “preliminary examination.” This examination is very similar to a grand jury proceeding, except that in place of the 12 jurors making the decision, there is a single judge that makes the decision. In addition, at a preliminary examination, as opposed to a grand jury proceeding, the defense is allowed to cross-examine the People’s witnesses and call witnesses of their own.

At a preliminary examination, the People have the burden of proving two things: 1) whether there is probable cause to believe a crime was committed; and 2) whether or not there is probable cause to believe that the defendant is the person that committed that crime. Generally, this is a very low standard and as long as the prosecution presents some evidence of illegal conduct, the Judge will usually bind the matter over to the circuit court. It is a very rare occurrence indeed that a case is dismissed at the preliminary examination.

However, Neil Rockind seems to have a knack for dismissals.

In January, Neil held a preliminary examination in a case wherein our client was charged with several counts of theft for allegedly stealing sets of tires from several different vehicles. However, at the preliminary examination (that was held in front of a very difficult judge) Neil was able to establish that the police had only learned about the alleged connection between our client and the thefts by breaking the law. The police, without probable cause, had been tracking our clients movements and even went so far as to pull him over while he was driving, without a shred of evidence of any illegal conduct.

The Judge agreed that the police had broken the law and, as fruit of the poisonous tree, the Judge suppressed all of the evidence that was obtained after the illegal actions by the police. Absent that evidence, there was no evidence that our client had done anything wrong. Subsequently, the Judge dismissed the case at the preliminary examination upon a finding that there was insufficient evidence to believe that our client had committed a crime.

Neil and I prepped that preliminary examination for weeks and all of that hard work resulted in a DISMISSAL. Doesn’t get any more satisfying than that.

NOT GUILTY – Operating While Visibly Impaired

Many people are not aware that you can be under the legal limit of .08 blood/alcohol content, yet still be charged with drunk driving. In Michigan there is a charge below Operating While Intoxicated called Operating While Visibly Impaired. They are two separate charges and they have two different legal standards.

When a person blows a .08 BAC or above, they are generally charged with Operating While Intoxicated. In order to prove this charge, the prosecution must actually admit evidence that the person took a breath test and was at .08 BAC or above.

If the prosecution cannot prove that the person blew above at or above a .08 BAC, then they can charge the person with Operating While Visibly Impaired. In order to prove this charge, the only thing that the prosecution must prove is that  the person had consumed alcohol and that the alcohol impaired their ability to operate the motor vehicle. Usually this is proved by showing that the person looked like they were driving impaired (e.g. by swerving, speeding, failing to use a turn signal, driving erratically, etc.)

Last month Neil held a trial in which our client was charged with operating his motor vehicle while impaired by alcohol after he abruptly changed lanes once, was pulled over, and blew a .06 BAC on the breathalyzer. The Prosecutor’s office refused to dismiss the case and even filed a motion asking the judge to ban us from being able to argue that driving below a .08 BAC was legal. We filed a response and the judge agreed that we were able to argue to the jury that driving with a BAC less than .08 was not a crime, unless they could prove that he was actually impaired by the alcohol.

The trial lasted two days and after a very short deliberation, the jury agreed that there was no proof that our client had driven his car while impaired by alcohol. Another NOT GUILTY in the books!

Domestic Violence DISMISSAL!

One of the types of cases that we specialize are Domestic Violence cases. You can check out our domestic violence website here: http://www.michigandomesticviolence.com/

In nearly all of the domestic violence cases that we handle, we always prepare for trial from the get-go. Most of these cases ultimately go to trial – primarily because the prosecution will rarely dismiss (even if the complainant wants a dismissal) out of fear that the defendant will simply commit the same crime again (or is some cases, commit an even worse offense.)

Basically, we are always prepared to go to trial on domestic violence cases – whereas prosecutors almost always try to force a plea.

Last month, Neil appeared with our client in Sterling Heights prepared to go to trial. Despite the fact that the complainant had showed up at every other court appearance and had told the prosecutor numerous times that our client had “pushed her” and that she absolutely wanted the case to go to trial, she failed to appear at the trial. The truth is that our client had never pushed her and she was simply using the legal system to keep our client out of his own home.

The prosecutor asked for an adjournment so that he could attempt to find the complainant, but the Judge was fed up with both her antics and her refusal to appear at trial despite being subpoenaed, so he DISMISSED THE CASE ENTIRELY!

Our client could have taken a plea deal, but he opted to fight the ridiculous allegation and ultimately we were rewarded with a DISMISSAL. This is what we do.