Blogs > The Law Blogger

The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Friday, January 5, 2018

Recreational and Medical Marijuana: The Empire Strikes Back

For the past 10-years, the marijuana legalization process has gained traction in the United States and other Western countries. Canada and California went legal last week; 8 states have legalized recreational use of marijuana; another 20 states have legalized medical marijuana.

Yesterday, however, the other shoe fell in Washington D.C., with the United States Attorney General reversing USDOJ policy and instructing United States Attorneys to begin prosecuting marijuana violations of the Controlled Substance Act. Attorney General Jeff Sessions' policy statement rescinds the Obama-era Cole memo; a memo that included a series of enforcement directives designed to leave policing marijuana dispensaries to the individual states.

AG Sessions' personal animus against pot is well known. He has gone on record saying that marijuana users are "not good people".

Sessions' pronouncement sends a fledgling billion dollar industry into an era of uncertainty. For the past decade, banks, insurance companies and capital investors took baby-steps into the massive marijuana industry; an industry that, until the past decade, operated solely within the Wild West of the black market.

This policy shift will chill the macro moves of the major industry players. The combined markets of California and Washington, both recreational use states, were expected to eclipse the revenue of the alcohol industry. That's some big money folks.

And because it's such big money, you can bet some of the money will be spent to deploy lobbyists in a full-court-press on Congress to, once-and-for-all, remove marijuana from Schedule 1 of the Controlled Substance Act. We here at the Law Blogger are not holding our breath, as this has been tried before, and the efforts, of both lobbyists and litigants, have failed.

Unfortunately for the marijuana industry, Congress' attitude toward marijuana seems influenced by the hubris of a failed 30-year "war on drugs" that involves a series of mutual prohibition treaties with many of our trading partners to the South. This attitude does not take into account that the ganja smuggler is a thing of the past; today high-quality pot is produced in a 2x2 closet with a grow lamp and some TLC.

Seriously, it is now time to end marijuana prohibition. Marijuana should be removed from Schedule 1 and placed into its own category; a category most-closely related to alcohol. Yes there are problems, health and otherwise, that arise from chronic marijuana use.

Prohibition, however, is not the answer. Regulate the weed; tax the revenue generated from weed; just stop the prohibition of the weed.

Post Script: Some U.S. Attorneys have made ominous statements promising aggressive prosecution for pot distributors, Massachusetts, while others, Colorado, have said they will not prosecute federal marijuana cases.

Post #613

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Tuesday, January 2, 2018

Driver's License Cannot Be Suspended For Non-Payment of Traffic Fines

A federal judge has enjoined the Michigan Secretary of State from suspending drivers' licenses for failure to pay fines related to traffic tickets; for now anyway.

As should be the case, Michigan takes driving privileges very seriously. If you neglect to pay fines here in Michigan, even traffic tickets, your license can be suspended as a matter of law.

United States Federal Judge Linda Parker disrupted the legal landscape in this regard, enjoining the State of Michigan from suspending drivers' licenses for the failure to pay traffic ticket fines. In a federal class action law suit, Judge Parker determined that the drivers were likely to prevail on the merits that their licenses were suspended without due process.

Plaintiffs in the class action law suit, two drivers from the Detroit area, claimed Michigan's fine and suspension scheme was fundamentally unfair against; that it essentially equated to a "debtor's prison", unevenly punishing low income drivers. Specifically, the drivers claimed the statutory scheme violated the equal protection and due process clauses of the constitution.

Judge Parker ruled that drivers, at a minimum, are entitled to notice of an "ability-to-pay" hearing. In issuing her injunction against the state, she noted the significant interest people in Michigan have in maintaining a driver's license: the ability to get to and from work in a state that lacks an extensive public transportation system.

The current state of Michigan law as it relates to unpaid traffic citations, is that failure to pay 3 traffic tickets results in a license suspension. Legislation scheduled to take effect yesterday, increasing the number of unpaid tickets from 3 to 6, was rescinded by Governor Snyder; so the number of unpaid tickets that could result in losing your license remains at three.

When a driver's license is suspended, either through failure to pay traffic fines, or from an alcohol-related driving conviction, a "driver responsibility fee" is assessed that must be paid prior to re-issuance of the license. The amount of the fee depends on the underlying reason for the suspension. Although Michigan has maintained a robust fee structure to reinstate a driver's license, these fees are being phased-out by statute and will soon be eliminated.

In the drivers' class action law suit, the state asked the judge to stay her ruling so they could appeal her ruling, asserting that the judge tossed a proverbial "wrench" into the gears of a fast-churning machine.

Of course, with stakes this high, the Secretary of State immediately filed an appeal to the United States Court of Appeals for the Sixth Circuit. The appellate court did grant the state's request for a stay, but only for 30-days:
[t]he State argues that it will be difficult, if not impossible, to comply fully with the preliminary injunction in the immediate future. The injunction is broad in scope and provides very little direction as to what specific actions should be taken to comply with the constitutional due process requirements. Clearly, additional notice about the procedures available to persons facing license suspension is contemplated.
This limited stay was issued by the appellate court clerk; the full appeal will not be filed for several months.

The end-result in this case will be significant to both the drivers in our state, as well as the State of Michigan. We will monitor the case and report all of the significant developments.

Related Article: Federal judge eliminates bail for misdemeanors; click here.

Post #612

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Friday, December 1, 2017

Attorney General Candidate's Over-the-Top Ad Garners National Attention

Attorney General Candidate
Dana Nessel
Until recently, you would have to be an attorney to have heard the name Dana Nessel. An outspoken lesbian, she assisted in the struggle for marital equality in the DeBoer same-sex adoption case that went to the SCOTUS.

Earlier this year, Ms. Nessel tossed her cap into the race for Michigan Attorney General. This week, she blew the lid-off and garnered some national attention with a controversial campaign ad that cuts to the very quick, and then some, of the workplace sexual harassment pandemic.

Here is a look at the candidate's angry message:

Of course, this ad is now drawing a significant backlash, starting with the Michigan GOP. They released a statement wondering why Ms. Nessel has not publicly called for the resignation of long-serving Democrat Congressman John Conyers; one of many powerful men outed during the past month for inappropriate acts against women in the workplace.

We here at the Law Blogger must admit, when we first viewed the ad, it was difficult to ascertain whether the candidate was serious, or whether she intended a parody. The flames in the fireplace in the background are burning fast and hot to match Ms. Nessel's mood.

The Attorney General is one of three state-wide offices here in Michigan; the other two are, of course, the Governor and the Secretary of State. Michigan's Attorney General is the chief prosecutor in the state.

Our concern with Nessel's angry message is that she paints all men as potential sexual transgressors; all men, no exceptions. All you have to have, according to her ad, is a penis, and if you do, according to Nessel, you're not fit for the AG's office.

In her seemingly home-made ad, Ms. Nessel impatiently slaps-up the paint on the wall with the broadest of brush strokes. This brings into question whether she is suited for our state's top prosecutor post; a demanding job that takes focus, good judgment, and fortitude to do the right thing.

All instances of sexual assault and harassment in the workplace or anywhere else should be condemned in both civil and criminal forums. Jumping on a bandwagon, however, as Nessel has done, by casting doubt on all men, is not what Michigan needs for an Attorney General.
Post #611

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Thursday, November 9, 2017

GOP Tax Plan Eliminates Alimony Deduction

The recently-proposed GOP tax plan eliminates an above-the-line deduction for alimony payors. This proposal would reverse 75-year-old legislation that protects spousal support payors, and divorcing families in general, with a significant tax break.

Characterizing the existing deduction as a "divorce subsidy", the House Ways and Means Committee proposal, at section 1309, states:
Alimony payments would not be deductible by the payor or includible in the income of the payee. The provision would be effective for any divorce decree or separation agreement executed after 2017 and to any modification after 2017 of any such instrument executed before such date if expressly provided for by such modification.
One of the Committee's stated considerations in proposing the elimination of the alimony tax deduction is that a divorcing couple receives better tax treatment than a married couple under the current tax code.

In their commentary on the House proposal, joint-committee legislative staffers had this to say about section 39:
Under the proposal, alimony and separate maintenance payments are not deductible by the payor spouse. The proposal repeals sections 61(a)(8) and 71 of the Code. These sections specify that alimony and separate maintenance payments are included in income. Thus, the intent of the proposal is to follow the rule of the Supreme Court’s holding in Gould v. Gould, in which the Court held that such payments are not income to the recipient. The treatment of child support is not changed.
Well, we here at the Law Blogger note that the SCOTUS case relied on by the legislative staffers was decided in 1917, and was subsequently wholly supplanted by IRC sections 61(a) and 71.

Today, the Senate releases its version of the tax proposal. Legislators in both chambers point-out that the specific tenets contained in the proposals, including section 39 of the House plan, are up for discussion.

To the extent that the provision would require the support payor to pay his obligation with after-tax dollars, it hurts divorcing families just as they are at their most financially vulnerable. A spousal support recipient will always have a lower marginal tax-rate then the support payor.

Although the support recipient currently pays taxes on the "income" received in the form of alimony, that payee pays significantly less in taxes due to the lower marginal rate. By closing this gap, the GAO estimates the United States would re-capture approximately $8.3 billion in additional tax revenue over the next decade; truly, the proverbial "drop-in-the-bucket".

This government savings would come at great cost and confusion to divorcees, say many divorce and tax professionals. The loss to the payor under the proposal would be much greater than the paltry gain to the payee. Some critics of the GOP's plan say this amounts to a morality-tax imposed on divorcees.

As a policy matter, elimination of the alimony deduction cuts against the progression and liberalization of divorce laws since the 1950s, seriously complicates spousal support negotiations, and would, in most cases, hurt both the support recipient and the payor. If the alimony deduction is eliminated, spousal support negotiations would become an exercise in "sharing-the-pain".

We will do what we do here at this blog; monitor the legal developments and report-back to our readers.

Post #610

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Tuesday, November 7, 2017

Roadside Saliva Testing for Marijuana is Here

People are going to abuse marijuana just as they do alcohol. Keeping drivers that are too stoned off the road, just like with drunk drivers, is the task at hand for law enforcement.

The Michigan State Police will soon begin administering roadside saliva tests for THC; the one-year pilot program rolls-out this month in 5 counties, unnamed in last year's enabling legislation. The five counties finally were revealed this week: Berrien, Delta, Kent, Washtenaw, and St. Clair.

This new law enforcement tool comes in an era of decriminalization and at the end of the prohibition of marijuana. For example, Canada will legalize marijuana for recreational use this summer for all 9 provinces. In the process, they too are rolling-out a roadside saliva test designed to catch stoned drivers.

Despite ever more progressive marijuana policies among the states, the drug nevertheless affects driving. Consequently, its use is addressed in the Motor Vehicle Code here in Michigan; criminal sanctions can result from stoned driving.

A challenge for legislators, prosecutors, judges and law enforcement is measuring the quantity of the drug in the driver's body. There is no consensus among experts regarding how much marijuana impairs driving skills.

Unlike alcohol, THC and other controlled substances are difficult to measure with the accuracy required to support a conviction. Today, officers are trained to watch for and observe signs of impaired driving.

A .08 blood alcohol level -which can be easily and reliably determined- is universally accepted as a threshold for the legal operation of a motor vehicle. There is no comparable standard when it comes to marijuana.

Because driving under the influence of marijuana is difficult to detect, Michigan is utilizing specially trained state troopers known as Drug Recognition Experts. These DREs use a 12-point evaluation in making the determination of a driver's impairment by drugs.

Part of the DRE training involves administration of the saliva test. The test is designed to detect marijuana, amphetamines, methamphetamines, benzodiazepines, cocaine and opiates.

Defense lawyers are calling foul, characterizing the saliva tests as "junk science". Not even preliminary breath tests for alcohol -also administered at the roadside- are admissible in court. Rather, the preliminary test results may establish probable cause to conduct a more accurate but more intrusive search: a blood test.

Refusing the saliva test is treated in the same manner as refusing a preliminary breath test when suspected of drunk driving: liability of a civil infraction and exposure to law enforcement being able to use the refusal as a component of the probable cause to arrest calculation.

Obviously, officers making routine traffic stops cannot haul everyone they suspect of driving under the influence of drugs into a nearby hospital for a blood draw. If the saliva test is positive for any of the above-referenced substances, then probable cause is established to conduct a blood screen; a seizure under the 4th Amendment.

Last July, the National Highway Traffic Safety Administration sent a detailed report to Congress calling into question whether the roadside saliva tests could even properly detect THC, let alone verify an amount per milliliter of blood deemed to be officially "stoned". The report concluded:
Many studies, using a variety of methods, have attempted to estimate the risk of driving after use of marijuana. While useful in identifying how marijuana affects the performance of driving tasks, experimental and observational studies do not lend themselves to predicting real-world crash risk.
Some studies suggest that a person's tolerance of marijuana has a significant impact on whether they can drive while stoned -i.e. the more you smoke, the better driver you become while high- while other studies point to the increased number of crashes where the driver had some level of THC in their bloodstream.

The current state of the law is that any amount of active THC in a driver's bloodstream is illegal. As we know, however, the Devil is in the details. False positives, based on residual amounts of THC in the bloodstream, are far too common with saliva swabs.

With the science of the available testing devices lagging behind, we will monitor this pilot program and report on its progress and relevant developments. A scientific breakthrough relative to the collection and processing of forensic data could come at any time.

Meanwhile, if you use marijuana, do us all a favor and don't drive stoned.

Post #609

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