Newburg Law Blog

Claiming self defense when carrying a concealed weapon

by: Jason Osbourn

July 26, 2016 at 3:09 PM EDT

MCL 750.227 makes it a felony for a person to carry a concealed weapon (CCW). The statute specifically identifies several types of weapons: pistol, dagger, dirk, stiletto, double-edged nonfolding stabbing instrument of any length, or any other dangerous weapon. Until recently, self defense was not understood to be an available defense to CCW. People v Hernandez-Garcia, 477 Mich 1039 (2007). The jury instruction based on this and other case law made clear that it does not matter whether a person was...

Not enough evidence and our system of justice.

by: Matt Newburg

June 22, 2016 at 4:30 PM EDT

By now you have heard that Jerry D. Jones, the district attorney for the 4th District Court for Louisiana has decided not to prosecute two Alabama football players who were in a car with marijuana and a gun.  The prosecutor indicated, on a court filing, that he would be dismissing the charges because there was "insufficient evidence."  So what does that mean? If you take that comment at face value, that means the prosecutor did not think he could prove his case beyond a reasonable...

Confessions to Crimes That Never Happened: The Corpus Delicti Rule

by: Jason Osbourn

June 10, 2016 at 2:39 PM EDT

Victoria Banks pleaded guilty to manslaughter after she confessed to killing her newborn baby. She, along with two others who also confessed to participating in the crime, were sentenced to 15 years in prison. The problem? Years before her confession, Victoria underwent sterilization and doctors say that it would have been impossible for Victoria to have been pregnant, let alone given birth.

The Corpus Delicti Rule is meant to guard against such convictions, ensuring that people are charged and...

New law gives courts greater power to overturn Secretary of State’s denial of a restricted license

by: Jason Osbourn

June 6, 2016 at 11:49 AM EDT

Those whose license is revoked may request a hearing with the secretary of state (SOS) and request that their license be reinstated. Reinstatement of a license under these circumstances is highly discretionary. While a denial may be appealed to the circuit court, the court will only overturn SOS’s decision only for the most grievous mistake of fact or law or blatant abuse of discretion. As a result, a denial by SOS is almost never overturned by the circuit court.

Earlier this month, however, the...

Court of Appeals ruling prevents ANY MMMA caregivers from serving more than five patients

by: Jason Osbourn

May 18, 2016 at 4:48 PM EDT

While the § 4 defense of the Michigan Medical Marijuana Act (MMMA) is relatively clear, § 8 suffers from a high level of vagueness and ambiguity. The most recent published attempt to clarify this defense by the Michigan courts occurred in People v Bylsma, ___ Mich App ___ (2016) where the Court of Appeals was presented with the issue of the relevance of a registered caregiver-patient relationship to the assertion of immunity under § 8 of the MMMA. That court reaffirmed the Michigan Supreme...

Are “Implied Consent” DUI Laws Unconstitutional?

by: Matt Newburg

January 9, 2016 at 4:26 PM EST

All 50 states currently have “implied consent” laws for drivers who are arrested on suspicion of drunken-driving and who are asked to submit to blood-alcohol testing. However, these implied consent laws are currently facing a constitutional challenge in the nation’s highest court.  Under state implied consent laws, when you get your driver’s license, it means you have also automatically given consent to blood-alcohol testing if you are ever suspected of DUI....

Michigan Court of Appeals Decides "Drying" marijuana Issue

by: Matt Newburg

January 9, 2016 at 1:00 PM EST

The Michigan Court of Appeals has, yet again, upheld a conviction of a Michigan Medical Marijuana Patient and Caregiver. In a 2-1 opinion, the Court addressed the meaning and consequences of marijuana that is found to be in the curing stages.  In People Rocafort, an unpublished opinion, the Court held the marijuana seized by law enforcement was dried marijuana--despite having moisture--and exceeded the amount of marijuana Ms. Rocafort could possess under the Michigan Medical...

Legislation would make police body camera footage unavailable to the public

by: Matt Newburg

December 16, 2015 at 8:54 PM EST

A bill has been introduced in the Michigan Legislature that would exempt from public disclosure video and audio footage recorded by police body cameras.

Senate Bill 634, sponsored by Sen. Rick Jones (R-Grand Ledge), would amend the state’s Freedom of Information Act to exempt certain audio and video footage from being made public. 

Jones has said he introduced SB 634 on Dec. 3 because a policy needs to be in place to protect the privacy of individuals. According to the senator, not all...

Marijuana decriminalization in Grand Rapids withstands legal challenge

by: Matt Newburg

December 13, 2015 at 8:51 PM EST

The decision of Grand Rapids voters to decriminalize marijuana possession by amending the city charter will remain undisturbed, now that the Michigan Supreme Court has declined to hear a challenge to the law’s constitutionality. 

In 2012, more than half of Grand Rapids voters amended the city charter and made marijuana possession a civil infraction, with fines ranging from $25 to $100. But Kent County Prosecutor Bill Forsyth challenged the amendment, claiming that voters could not trump state...

Police ‘Knock-and-Talk’ Procedure Upheld by Michigan Appeals Court

by: Matt Newburg

December 8, 2015 at 8:50 PM EST

A “knock-and-talk” procedure used by law enforcement, which led to a search of the defendants’ homes and the seizure of marijuana butter, did not violate the defendants’ constitutional rights, the Michigan Court of Appeals has ruled in a 2-1 decision.

In People v. Frederick and People v. Van Doorne, the defendants had medical marijuana cards and had obtained marijuana butter. When executing a search warrant at the defendants’ homes, narcotics officers knocked, waited a few...

A More Peaceful Divorce Process

by: Kristin Arnett

May 2, 2016 at 6:22 PM EDT

Divorce is difficult. Divorce is emotional. Divorce is expensive and time consuming. Even if you think that you don’t have a lot of “stuff” or you believe that you and your spouse “agree on everything,” rarely is that actually the case. Even if you don’t own much property, chances are you do have debt, which must also be divided. Whether you have been married five, ten, or fifteen years, you have accumulated things; you have joined two lives into one that now must be...

A bad romance: Can I get back that gift?

by: Kristin Arnett

March 3, 2016 at 11:03 AM EST

When a marriage ends in divorce, the courts help divide the parties’ personal property. However, the same cannot be said for dating relationships that fall apart. So what happens with any gifts that are exchanged during a romance that ultimately fails?

The general rule of gift-giving is that the giver relinquishes all rights as soon as the item is accepted by the recipient. Acceptance of a gift is usually obvious, through a hug or kiss, and then the recipient taking possession of the item. 

...

Can one attorney represent both parties in a divorce?

by: Kristin Arnett

February 19, 2016 at 8:11 AM EST

In situations where both parties want to end their marriage and agree to the settlement terms, the parties often wonder whether they can hire one lawyer to handle the case. This request is usually made to help keep down the legal costs.

The rules of ethics for Michigan attorneys, however, do not permit lawyers to represent both parties in a divorce. 

Michigan Rule of Professional Conduct 1.7 says a lawyer “shall not” represent a client if the representation of that client will be...

Custody, Support & Parenting-Time Order Properly Entered Without Mother’s Signature

by: Matt Newburg

January 26, 2016 at 10:22 AM EST

A custody, child support and parenting time order based on the parties’ signed mediation agreement was properly entered by the trial judge, even though the mother disavowed the agreement and refused to sign the order, the Michigan Court of Appeals has decided.

In Kleinjan v. Carlton, the parties had a child together, but were not married. The father filed a complaint requesting legal and physical custody of the child, child support and supervised parenting time for the mother. The parties and their...

Mandated joint custody bill is getting an icy reception

by: Kristin Arnett

November 5, 2015 at 8:32 PM EST

Legislation that would require courts to award joint custody in divorce cases is being criticized by trial judges and family-law practitioners as being ill-conceived and not in the best interests of Michigan children.

House Bill 4141 would mandate that trial courts order joint custody unless there is clear and convincing evidence that a parent is unfit, unwilling or unable to care for the children.

Trial judges assert that HB 4141 eliminates their discretion in custody and parenting-time cases, while...

Do You Know Where Your Will Is?

by: Kristin Arnett

February 6, 2016 at 7:33 AM EST

When the time comes to find a family member’s will, it often turns into an unwanted game of hide-and-seek: the person who has died stashed the original document somewhere, and now others must try and find it.

It’s understandable that people want to keep their wills private. After all, a will contains personal information. 

But the original of a will should not be hidden from everyone. The person for whom the will was drafted and at least one other individual need to know where the will...