Attorneys Blog

Rick Snyder just signed into law a bill that is going to eliminate driver responsibility fees for specific offenses. Starting for offenses occurring after October 1, 2011 drivers will no longer be assessed driver responsibility fees for the following offenses.

Accumulating seven or more points on a driving record.
Driving without a valid license.
Failing to produce proof of insurance.
Failing to have no-fault insurance under the Insurance Code.
While driver responsibility fees will not be levied for these offenses occurring after October 1, 2011, driver reasonability fees will still be charged in offenses where a person is convicted of drunk driving and/or impaired driving such as a charge for an OWI, OWID, or an OWVI. The fees for these offenses will remain unchanged and generally require $1,000.00 for a period of two years or greater.

This change in the current law is a step in the right direction for eliminating unnecessary fees for drivers; however, there remains a lot of room for improvement in the laws that still remain on the books.

A proposal which would allow residents to own a stun gun is going through the Michigan Legislature currently. There are already 44 other states that have enacted such measures. The Michigan senate already approved the measure by a vote of 35-3, indicating it won’t face too much opposition.

The measure will make it perfectly legal for residents to own a stun gun permitting they have a current concealed pistol license. Although the weapon is considered non-lethal, there have been many instances where death has occured due to heart failure resulting from the electrical shock from the device. Most of these cases actually involve the police, since the majority of stun-gun owners are law enforcement officers.

I agree that a stun-gun is less dangerous than a real firearm, but there are other considerations to account for. I know I would be more likely to use a stun gun than a real firearm since the result most likely doesn’t end in death. I’m sure others think this way as well and we don’t really know enough about the long-term consequences, or how willing people will be using one. I mean this is the country where pepper spray is used to get the best deals on black friday at Wal-Mart, who knows what we’ll do with a stun gun! I will keep you updated and let you know if this measure passes through legislature.

In Michigan, when you are injured in an auto accident, suing the other driver is not always a possibility. This is because in Michigan we have what is called a no-fault system. Most injuries and accidents that are not serious, result in your own insurance company paying what is called “first party” benefits for the accident. First party benefits generally include reimbursement for lost wages and medical expenses.

However, even with the no-fault system in place you can still sue the driver who caused the accident if your injuries meet the threshold. What is a threshold injury? The threshold has changed over the last couple of years with our Supreme Court’s most recent ruling on the issue in McCormick v. Carrier. Generally, the threshold is met when your injury results in a

Serious impairment of a body function
Permanent serious disfigurement or
Death.

The last two definitions are pretty obvious, but a serous impairment of an important body function takes a little analysis to pin down. Every situation is different as the facts surrounding every injury are not the same and there is no bright line test to let us know for sure whether a specific injury meets this threshold. The factors that the courts use to determine whether an injury is a serious impairment of body function are as follows:

Is your injury objectively manifested (observable or perceivable from actual symptoms or conditions)?
Did the accident leave you with an injury of a body function that is important (a body function of value, significance, or consequence to you)?
Does the injury affect your general ability to lead a normal life (influences some of your capacity to live in a normal manner of living).
Other factors

As you can see, sometimes it can be difficult to determine whether an injury meets this threshold which would allow you to sue the driver at fault for the accident. Every case and every injury is different so whether your injury resulted in a broken bone, back problems, ligament tears, knee, shoulder, or other problems such as scaring or burning it is important figure out what your rights are and whether your injury may meet the threshold.

According to the most recent memo from our esteemed Attorney General Bill Schuette, it would appear the answer to the above question is yes. In Opinion #7262 released November 10, 2011 the Attorney General goes through a long winded analysis that boils down to his opinion that police officers would be breaking Federal Controlled Substance Laws by returning Medical Marijuana to patients who did nothing wrong.

What does this really mean? Bill Schuette is saying that even if you have complied with state law as a patient or a caregiver, and have done nothing wrong, the police will not give back medical marijuana that they may have wrongly seized and confiscated!! This is despite the explicit provision 4(h) of the MMMA that states in such instances the marijuana “shall not be seized or forfeited.”

The problem with this opinion, however; is that it is almost certainly wrong.

The Attorney General attempts to rest his case on the fact that Federal Controlled Substances Law trumps the MMMA. While it is true that Federal law trumps or preempts state law, including the MMMA, that fact does not mean that police will be committing a federal crime by returning property that was wrongfully or illegally seized.

First, 21 USC 885(d) of the Federal Controlled Substances Act, the Act that Bill Schuette says creates the problem, states that state police officers will be immune from criminal and civil liability when “lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.” Essentially, this provision means that if a state police officer is enforcing a state controlled substance law then they will not be violating the Federal Controlled substances Act. It seems fairly obvious that enforcing the MMMA (a law regarding controlled substances) which is a state law, would not subject police officers to federal penalty because of this immunity, and thus police would be free to return wrongfully seized medical marijuana.

Second, The Attorney General fails to mention the Fourteenth Amendment to the United States Constitution, which provides “that no state shall deprive any person of life, liberty, or property, without due process of law.” The right to property being a substantial right, and the property (medical marijuana), which is legal and not contraband, being officially held with no criminal charges pending almost certainly would be considered unconstitutional as a deprivation of property without due process under the law.

Lastly, Courts in California and Oregon have both ruled on this specific issue and have upheld the return of medical marijuana for the reasons I have stated. Those cases are City of Garden Grove v Superior Court of Orange County and State v Kama, respectively.

While I think the Attorney General’s opinion is wrong this issue has not been resolved by Michigan courts yet, though it is clear that another front has been added to battle against Michigan medical marijuana by the Attorney General.