In People v. Koon, the Michigan Supreme Court unanimously held that, under the Michigan Medical Marihuana Act (MMMA), a qualifying patient may not be arrested or prosecuted for the medical use and internal possession of marijuana while driving if possession does not exceed 2.5 ounces. However, if the defendant is shown to have been under the influence of marijuana, he or she will lose immunity for noncompliance with the MMMA and may be prosecuted. This per curiam opinion was filed on May 21, 2013.

During a traffic stop for speeding in Grand Traverse County, the defendant showed the arresting officer a marijuana pipe and expressed that he was a registered patient under the MMMA. The defendant was charged with operating a motor vehicle with the presence of a schedule 1 controlled substance in his body (MCL 257.625(8)). A blood test later revealed that the defendant had a blood THC content of 10 nanograms per milliliter.

The defendant claimed that the zero tolerance provision could not apply under the MMMA, as it blocks the prosecution of registered patients for medical use unless the defendant is driving under the influence. Both the district court and circuit court agreed. The Court of Appeals reversed, stating that the MMMA was subject to the Legislature’s conclusion that it is not safe for a person to drive with any amount of marijuana in his or her system. In turn, the Court of Appeals found that the defendant could be prosecuted under the zero-tolerance statute.

The Supreme Court asserted that the MMMA does not define “under the influence.” The Court stated that it is something more than simply having any amount of the drug, however small, in one’s system. There is a requirement that the marijuana has some effect on the individual. Black’s law dictionary defines the term of art “under the influence” as being “deprived of clearness of mind and self-control because of drugs and alcohol.” The Court also cited People v. Lambert, which concluded that a proper jury instruction for driving under the influence required proof that the defendant’s driving ability was “substantially and materially affected.” Moreover, the Court stated that this case could have been easily decided if the MMMA defined “under the influence.” To rectify this, the Court suggested that the Legislature consider amending the MMMA to adopt a legal limit of marijuana similar to alcohol to show when a registered patient would fall outside the MMMA’s protection.

In conclusion, the Court determined that the MMMA supersedes MCL 257.625(8) unless the registered qualifying patient loses immunity by not acting in accordance with the MMMA. Therefore, the zero-tolerance provision, which is inconsistent with the MMMA, does not apply to the medical use of marijuana.

The Court then, instead of granting leave to appeal, reversed and then reinstated the Grand Traverse Circuit Court’s judgment and remanded to district court for further proceedings.
This case demonstrates some of the problems with current Michigan law. Lawyers around Michigan are now trying to figure out how to determine if someone is “under the influence” of marijuana. This will now be the subject of debate in courtrooms and in the Legislature. When Michigan passed its law, it left many unanswered question, which have created litigation hysteria. This is especially so with governmental agencies resistant to the law.

Looking at the big picture, this case illustrates the problems with a “zero tolerance” law. Some drugs like Marijuana stay in your system for substantial periods of time. It really makes little sense to tell an unlicensed marijuana user that you cannot drive because you smoked 30 days ago. There are numerous drugs that can be detected for weeks and even months using hair follicle testing. So today, someone could stop all use of illegal drugs and then be prosecuted for driving, totally unaffected by the prior use. Today, there is no reason to believe that the courts or the Legislature will come up with a more sensible solution.

In the meantime, the Michigan drug defense attorneys at Kronzek & Cronkright, PLLC can help if you are looking for aggressive legal advocacy for a pending case involving drugs or alcohol.

- Michael Cronkright

Mr. Cronkright is a trial attorney at Kronzek & Cronkright, PLLC. He represents clients in all criminal matters and Child Protective Proceedings.

For almost two years, a Delton man has been under investigation for possible connection with a pair of deaths. He has now been formally charged with the murder of one of the victims. There is no statute of limitations for murder in Michigan, so this delay is not a problem. Barry County prosecutors charged Harold Ordway, 43, with the murder of Fred Atchley, and they consider him a suspect in the death of Michael VanBuskirk. The two victims were roommates of Ordway and went missing at about the same time. If Ordway is convicted of his murder charge, he may face spending the rest of his life in prison.

According to reports, in 2011, sheriffs responded to a car accident near Plainwell in Allegan County. They arrested Ordway after ammunition, a gun, and a blood-soaked mattress were found inside of his truck at the scene. Ordway was questioned by police about the mattress, but prosecutors maintain that he was not able to explain the state of the mattress. Because Ordway has a prior felony conviction for assault in a New Mexico case, he was charged at the time for felon in possession of a firearm. Ordway is currently awaiting his sentence for the possession charge, and prosecutors are reportedly pushing for the maximum punishment of 10 years in prison.

VanBuskirk’s body was found several weeks after he was first reported missing but was apparently so badly decomposed that identification was difficult, and cause of death could not be confirmed. Atchley was never found.

Ordway is being held on $500,000 bond.

The four articles used for this report can be found on mlive.com, woodtv.com, wkzo.com and fox17online.com.

Every felony case requires the services of an experienced and professional Michigan criminal defense attorney. The law firm of Kronzek & Cronkright, PLLC offers a premier criminal defense team with decades of trial experience. We regularly handle cases in Barry, Kent, Jackson, Oakland, Midland, and Bay counties along with all counties in the lower peninsula of Michigan.

- Michael Cronkright

Mr. Cronkright is a trial attorney at Kronzek & Cronkright, PLLC. He represents clients in all criminal matters and Child Protective Proceedings.

The U.S. Sixth Circuit Court of Appeals addressed a case involving the qualified immunity of police officers. Donnetta Smith v. Stoneburner was released on May 10, 2013.

Charles Smith shoplifted a $14.99 phone charger and two police officers visited his home. While arresting him, the officers entered the house twice without a warrant. Police then allegedly forcefully restrained him and injured his mother. Therefore, Smith and his mother filed this action under § 1983 and state law, alleging that the entry was unconstitutional and that the officers used excessive force. At the district court level, qualified immunity was denied.

When the police arrived at Charles’s house, they encountered his younger brother outside. Police asked to enter the home, but the brother told police to wait on the deck. However, one of the police officers disregarded the brother’s instructions and followed him through the door. Then the officer and all three Smiths went outside.

After being questioned about the incident, Charles Smith attempted to reenter the house. One officer crossed the door threshold, grabbing him by the wrist and pulling him outside. In the process, the officer collided with the mother, causing her to hit the side of the house. Then the officer bent Charles over the railing, pressed his head against the wall, and handcuffed him. Charles was then arrested and charged with third degree retail fraud, a misdemeanor that he later pleaded down to disturbing the peace.

Two questions arise in any qualified immunity case. First, did the officers violate an individual’s constitutional rights? Second, were those rights clearly established during the incident? Concerning whether the first entry was a Fourth Amendment violation due to lack of consent, the Court felt this was a triable issue of fact for a jury to decide. Regarding the second entry, the Court said no exceptions to the warrant requirement applied. The police were not in hot pursuit, the suspect was not violent, no ongoing public nuisance existed, and no person in the house was in need of emergency assistance. Also, Smith’s rights were clearly established in two cases that have been established precedence for more than 25 years old. These cases (Payton and Welsh,) clarified that a double presumption guarded against entry into a home to arrest a misdemeanor suspect without a warrant.

Charles alleges that in the course of the arrest the officers banged his head several times against a wall as they held him over a deck railing. In his mother’s excessive force claim, she alleges that the officer shoved her against the side of the house. The Court stated these are questions for the jury to decide. Moreover, regarding the state law claims related to whether the officers committed intentional torts, the Court stated it was an open question and a reasonable jury could decide either way that the officers acted in good faith or bad faith.

In conclusion, the Court found that the district court properly denied the officers’ request for qualified immunity. Therefore, the Court affirmed.

The lawyers at Kronzek and Cronkright, PLLC, have extensive experience defending constitutional rights in Michigan. If you are facing charges of theft or have questions about police actions or warrantless searches, contact Kronzek and Cronkright, PLLC.

- Michael Cronkright

Mr. Cronkright is a trial attorney at Kronzek & Cronkright, PLLC. He represents clients in all criminal matters and Child Protective Proceedings.

This week, Governor Snyder signed a bill to amend the vulnerable adult embezzlement statute to allow judges to impose stricter sentencing.

This statute prohibits individuals from obtaining money or property, for direct or indirect benefit, through fraud, deceit, coercion, unjust enrichment, or misrepresentation from those known to be or suspected of being vulnerable adults. Moreover, a vulnerable adult is defined as the following: an individual who is at least 18 years old who cannot live independently due to mental illness, age, developmental or physical abilities, or is unable to protect himself or herself from abuse, neglect, or exploitation. Additionally, a vulnerable adult is defined as a resident of an adult foster care or group home.

Penalties for violations depend on the value of the money or property gained and if there are prior convictions. If the value is under $1,000.00, a person may be charged with a misdemeanor. For a value over $1,000.00, an individual may be charged with a felony. The maximum penalty for this offense is 20 years in prison; a fine up to $50,000.00 or three times the value of the money or property, whichever is greater; or both.

With the amendment, judges can now impose consecutive sentences on defendants convicted of many offenses under the statute. If judges impose consecutive instead of concurrent sentences, defendants face longer periods of incarceration. Moreover, the statute now comports with the general embezzlement statute, which already authorizes consecutive sentencing in felony cases in which the victim is any of the following: a nonprofit corporation or charitable organization, a person age 60 or older, or a vulnerable adult.

More Changes

Recently, another bill related to vulnerable adults was approved by the House and Senate and now will move to the Governor’s office.

In Michigan, individuals can be charged with first-degree murder if they kill another in the commission of an enumerated felony. First-degree murder convictions are subject to life imprisonment without parole.

The affected portion of the statute currently reads, “Vulnerable adult abuse in the first and second degree.” Proving both of these simultaneously would make it difficult to procure a felony murder conviction. The change would clarify the language to state “first or second degree” to allow prosecutors to prove either to obtain a conviction and would make the statute consistent with the Court of Appeals’ interpretation. In other words, the change would make it easier for prosecutors to gain felony murder convictions.

The Michigan trial lawyers at Kronzek and Cronkright, PLLC have extensive experience defending a wide array of crimes related to vulnerable adults. Our aggressive legal advocacy has yielded great success for many clients over the years. For those considering hiring our firm, we offer a free case evaluation. Contact us today at 1-866-7NoJail! Knowledgeable attorneys are available by appointment and are on call 24/7 in case of emergency situations.

Our attorneys defend clients all across the lower peninsula of Michigan, including Ingham County, Grand Rapids, Muskegon County, Macomb County, Oakland County, Wayne County, Midland, and more.

- Michael Cronkright

Mr. Cronkright is a trial attorney at Kronzek & Cronkright, PLLC. He represents clients in all criminal matters and Child Protective Proceedings.

Criminal Defense Attorneys for Michigan Children

Parents seeking help for a child with mental health issues will find that Michigan’s new law presents new challenges. Children facing criminal prosecution and competency issues should always have the assistance of a qualified attorney. Kronzek & Cronkright, PLLC offers free consultations to parents trying to help their child with a criminal case.

In March 2013, Michigan’s new juvenile competency statute went into effect, outlining standards to determine a child’s competency to stand trial in juvenile delinquency hearings. This page is designed to provide an overview of certain key provisions.

Presumptions

• Juveniles 10 years old and up are presumed competent unless challenged by a party.
• Juveniles under age 10 are presumed incompetent to proceed.

Competency Evaluation

A competency evaluation may be ordered by the court based on its own motion, or if requested by the prosecuting attorney, the child’s attorney, or the child. Additionally, the issue of competency may be raised at any time during the proceeding. Once the issue of competency is raised, the proceeding temporarily ceases until competency is determined.

Furthermore , this evaluation is to occur in the least restrictive environment. There is a presumption of conducting the evaluation while the child remains in the custody of a parent or legal guardian unless conditions exist to warrant removal first.

In addition, this evaluation is to be conducted by a qualified juvenile mental health examiner. The examiner provides the court with an opinion indicating whether the juvenile is competent to move forward.

The court will order the prosecuting attorney to provide the juvenile’s attorney all necessary information related to competency; and order attorneys on both sides to submit information about the offense and background information. Except where prohibited by federal law, the court will require the juvenile’s attorney to provide the following records: (1) School records; (2) Psychiatric records; (3) Medical records; and (4) Child protective services records.

All information must be provided to the examiner within 10 days after the court orders the competency evaluation. No later than 30 days from receiving the court order, the examiner will submit a written report to the court; although an extension is available.

The report must describe the content, nature, and extent of the exam; a clinical assessment; and the abilities and deficits related to competency.

Regarding evaluating the abilities and deficits, two areas are focused upon.

First is an evaluation of the juvenile’s ability to factually and rationally understand the nature and purpose of the proceedings. Some factors considered include whether the following abilities exist:

• Understands the role of the court participants and the adversarial nature of the hearings;
• Appreciates the seriousness of the criminal charges;
• Realistically evaluates and understands likely outcomes;
• Able to engage in thinking of the future.

Next is the ability to give meaningful assistance to the juvenile’s attorney in case preparation. Factors considered include:

• Able to provide a lawyer a reasonably coherent description of events and facts related to the charge;
• Considers how his or her actions affect others;
• Can express himself or herself in a coherent manner;
• Has logical decision-making and problem-solving skills;
• Able to weigh available options by considering the consequences, including regarding pleas, waivers, and legal strategies;
• Able to display appropriate courtroom behavior.

The report must also discuss any psychiatric or psychological disorders or cognitive impairment. Moreover, the report must address the prognosis and the services required in order to restore the juvenile’s competency.

Competency Hearing

Within 30 days after the filing of the report, the court will conduct a hearing to decide if a juvenile is competent to proceed. The court may find that the juvenile is competent and the case resumes. However, the court could also find that the juvenile is incompetent, and that he or she is either likely or unlikely to be restored.

If the juvenile is found incompetent and unlikely to be restored, the court will dismiss the charges with prejudice and may decide custody of the juvenile.

If the juvenile is determined incompetent and may be restored in the near future, one of the following occurs:

• For traffic offenses or low level misdemeanors, the matter will be dismissed;
• For a serious misdemeanor, the court may either dismiss or suspend the matter;
• If the crime is a felony, proceedings will be suspended.

Restoration

Additionally, before a restoration order is issued, the court will hold a hearing to find the least restrictive environment for the restoration to be completed.

The court could issue a restoration order that is valid for 60 days or until one of the following conditions occurs, whichever is first: (1) the examiner submits a report based on information from the restoration provider showing the juvenile regained competency, or there is no substantial probability that the juvenile will become competent within the time frame of the order; (2) the charges in question were dismissed; or (3) the juvenile turns 18 years old. Additionally, the restoration order may be renewed for 60 days up to a maximum of 120 days.

Furthermore, the qualified restoration provider will submit a report to the court and the examiner every 30 days or sooner, if the following occurs: (1) the restoration provider finds that the juvenile is no longer incompetent; or (2) the provider finds there is no substantial probability that the juvenile will be competent to proceed within the time frame of the order.

In cases where the juvenile is found incompetent and unable to be restored, the following will happen: (1) First, the court will determine custody of the juvenile. The court may initiate civil commitment proceedings under the Mental Health Code; or the juvenile will be released to his or her parents or legal guardians under appropriate conditions. (2) Secondly, criminal charges against the juvenile will be dropped.

Treatment Issues

If the juvenile has a serious emotional disturbance—and is incompetent and unable to be restored because of this—then the court may order mental health services at its discretion. Within 14 days before an expiration of an order for treatment, the mental health agency will submit a report to the court and the examiner regarding the juvenile. After reviewing the report, the court will either renew the order for additional treatment for 60 days; or determine custody and dismiss the charges. Any renewed order cannot exceed a total of 120 days.

Don’t Delay

In all instances, Children facing criminal prosecution require the assistance of a skilled criminal defense attorney. We invite parent inquiries and will provide an initial analysis of your son or daughter’s case at no charge.

- Michael Cronkright

Mr. Cronkright is a trial attorney at Kronzek & Cronkright, PLLC. He represents clients in all criminal matters and Child Protective Proceedings.

The U.S. Sixth Circuit Court of Appeals addressed the issue of a defendant who was ordered to pay restitution to the victims of the possession of child pornography. U.S. v. Hargrove was released on April 19, 2013.

Hargrove pleaded guilty to possession of child pornography. He possessed over 800 images and 16 videos of children. At sentencing, the district court judge ordered the defendant to pay restitution to three of these individuals who are now adults. Additionally, the court imposed joint and several liability on the defendant just in case these individuals were not able to obtain the resources to pay for psychological treatment from other convicted defendants who also viewed these videos and images. The defendant asked the appellate court to set aside the restitution order, arguing that the government was not required to prove that he caused actual and proximate harm to these individuals—and because the court did not have the authority to enter the contingent restitution order as well.

In his appeal, the defendant only challenged the restitution order. Based upon various expert reports and materials, the victims claimed that they were subjected to substantial losses, mostly for psychological treatment. Using pseudonyms, “Amy” claimed over $3.3 million; “Vicky” over $148,000; and “L.S.” $150,000. The court determined that the mandatory restitution statute, 18 U.S.C. § 2259, provided statutory causation to support the restitution order; however, the court held that apportionment of the losses was appropriate since other courts had ordered restitution to be paid to these same individuals in other cases. In turn, the court ordered the defendant to pay $3,000 to each person. Alternatively, the court imposed joint and several liability on the defendant in the amount of $150,000 for each person, if it turned out that these individuals were not getting appropriate treatment due to lack of money.

In its analysis, the Court stated that the parties agreed that the district court erred by ordering restitution without requiring that the government prove that the losses were proximately caused by the defendant’s crime. The Court referred to a case, Gamble, which stated that a child pornography victim may recover restitution under § 2259 if it is shown that the defendant actually did cause the victim’s losses—and that the defendant’s actions proximately caused the harm. Moreover, proximate cause indicates the harm is reasonably foreseeable. The Court held in another case, Evers, that the government bears the burden to demonstrate that the victim’s costs incurred were proximately caused by the defendant’s crime. These cited cases were not decided at the time of the defendant’s sentencing.

The defendant argued that he is not the cause-in-fact of the individuals’ injuries as no evidence exists that they knew he possessed the pornography, or that the injuries became more severe because he acquired and viewed the images. In addition, he also argued that he did not proximately cause the harm because any harm resulted from his anonymous downloads was indirect and remote. However, The Court stated it rejected this argument in Gamble, because a cause-in-fact requirement does not mean necessarily that unknown defendants have not caused losses; the individual’s losses result from knowing the image is being circulated generally, and a district court could find that defendants contributed to that knowledge.

The Court vacated the restitution order and remanded the case for further proceedings consistent with this opinion, Evers, and Gamble. Furthermore, the Court stated that if the government carries its burden and proves a restitution award for the individuals is appropriate, then the Court must consider that the defendant is not responsible for harm inflicted before the date of his offense. Then the district court would determine the victim’s provable losses not traceable to one defendant under the proximate cause standard outlined in Gamble and then divide it by the number of convicted possessors of child pornography supplied by a government database. Although, the Court stated that district courts may consider other formulas for allocating restitution as well. Finally, the Court indicated that restitution may not be apportioned by imposing joint and several liability.

If you need assistance with a federal criminal appeal, contact Kronzek and Cronkright, PLLC, today.

- Michael Cronkright

Mr. Cronkright is a trial attorney at Kronzek & Cronkright, PLLC. He represents clients in all criminal matters and Child Protective Proceedings.