(An unpublished opinion is not binding as precedent but may have persuasive value in court.)

Defendant appeals as of right from his conviction by jury of possession of marijuana. MCL 333.7403(2)(d). Defendant was sentenced as a second habitual offender under MCL 333.7413(2) to serve 90 days in jail and 18 months of probation.

Defendant argued that the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., should be retroactively applied to his case.

The court noted MMMA was approved at the November 4, 2008 general election, and became effective December 4, 2008. MCL 333.26421. Generally, the Act protects qualified patients, primary caregivers, physicians, and other persons from arrest, prosecution, or penalty in any manner for the use of marijuana for medical purposes. MCL 333.26424. An individual seeking protection under the MMMA must register with the state department of community health and obtain a registry identification card. MCL 333.26423(3). A qualified patient or caregiver is
permitted to possess no more than 2.5 ounces (roughly 71 grams) of usable marijuana, as well as an incidental amount of seeds, stalks, and unusable roots. MCL 333.26424(a), (b).

The MMMA clearly indicates that its effective date is December 4, 2008, and there is nothing included in the act to indicate that it was intended to be effective sooner than that date. Moreover, it is unlikely that the Legislature intended the act to be retroactive to a date prior to its effective date when the policies and procedures regarding identifying qualifying medical conditions and processing applications for registration cards were not even established. See MCL 333.26425(a), (b).

Therefore, the court held before the enactment of the MMMA, a defendant did not have the legal right to possess marijuana and there was no defense for such actions in Michigan.

The case was affirmed.

People v. Peters, case no. 288219, released January 21, 2010.

Defendant’s convictions arose out of a head-on collision between her minivan and another car. The collision killed the passenger in the other car and seriously injured the driver. Defendant did not deny at trial that she was driving while intoxicated, but she claimed that a third, unidentified car was the superceding cause of the collision. Specifically, defendant claimed that the third car struck her minivan’s rear bumper on the passenger side causing her to careen into the oncoming lane of traffic.

Defendant sought a continuance on the ground that she needed an opportunity to inspect the collision scene unimpeded by snow. The trial court denied defendant’s motion without prejudice. Defendant now claims that the denial was an abuse of discretion and that the lack of a continuance deprived her of her constitutional right to present a defense.

The Court found no constitutional violation. Although a defendant has a constitutional right to present a defense, the right is subject to procedural and evidentiary rules. The trial court properly found that defendant’s reasons for seeking the continuance were speculative, but offered defendant the opportunity to renew the request if less speculative information became available. Further, her own expert testified that any roadway evidence indicative of the third car would be minimal. Given the speculative nature of the evidence sought, the denial of the continuance did not present a constitutional issue.

Next, given that the continuance presented no constitutional issues, defendant must show that “After an examination of the entire cause, it shall affirmatively appear’ that it is more probable than not that the error was outcome determinative.” The Court held that the defendant had failed to meet her burden. The record contained nothing to support defendant’s claim that the evidence was necessary to allow her expert to analyze the collision. Therefore, the defendant had failed to establish prejudice arising from the denial of the continuance.

The case was affirmed. 

People v. Steele, case no. 289733, released January 12, 2010.

Following a jury trial, defendant appeals as of right his conviction of operating a motor vehicle while intoxicated (OWI) causing death, MCL 257.625(4)(a), OWI causing serious impairment of a body function, MCL 257.625(5), OWI, second offense, MCL 257.625(9)(b), and transporting an open container of alcohol, MCL 257.624a.

After determining that the police stop of defendant’s vehicle was illegal because it was not supported by reasonable suspicion, the circuit court granted defendant’s motion to quash the information. The prosecution appealed the court’s order dismissing the charges of operating a vehicle under the influence of liquor, third offense, MCL 257.625(1) and (9), and driving with a suspended license, MCL 257.904(3)(a).

Officer Martin of the Wayne County Airport Authority Police testified he observed defendant’s vehicle stopped at a traffic light and followed it as it completed a turn. Defendant proceeded westbound in the left lane of travel which had two lanes for travel in that direction. Officer Martin observed the vehicle “weaving slightly between the lanes.” Officer Martin explained that when a city police vehicle approached and passed defendant’s vehicle in the right lane of travel, “the vehicle swerved a little bit more.

Defendant “continued weaving within his lane” and Officer Martin followed the vehicle for about a quarter mile Officer Martin eventually activated his emergency lights. For approximately a quarter mile, defendant made no move to pull the vehicle to the shoulder of the road. Officer Martin then activated his siren and still saw no response from defendant. Then, defendant “darted from the left lane to the curb lane,” without using a turn signal. When Officer Martin approached defendant, he noticed an odor of intoxicants and the appearance of bloodshot eyes. Also, defendant’s speech was slurred. After defendant had difficulty performing field sobriety tests, Officer Martin transported him to headquarters where a breath test was performed. The Datamaster test results were .13 and .14.

At the conclusion of Officer Martin’s testimony, defendant argued that the stop was illegal because weaving within a lane of travel does not provide reasonable suspicion for a traffic stop. The district court disagreed.  However, the circuit court agreed, reasoning that because the Defendant was weaving within a lane would indicate to this Court you can drink and not be drunk or intoxicated or impaired.  The circuit court further stated that anyone who stayed within his own lane and even drove from one side to another into his own lane, did not constitute  reasonable suspicion to believe that a person was intoxicated or driving under the influence.

On appeal, the prosecutor argued that defendant’s erratic driving gave rise to a reasonable suspicion of unlawful intoxication and that the traffic stop was therefore lawful. The court of appeals noted that erratic driving may give rise to a reasonable suspicion of unlawful intoxication so as to justify an investigatory stop by a police officer. The Court held that the fact that defendant was able to maintain his vehicle within the lane of travel does not negate the suspicious nature of weaving from side to side.

The Court concluded that the circuit court erred by concluding that the investigatory stop was unreasonable.

The Court reversed and remanded for reinstatement of the charges against defendant.

People v. Wind, case no. 289733, released January 5, 2010.

Defendant appeals as of right his jury trial convictions for assault with intent to do great bodily harm less than murder, MCL 750.84, and resisting and obstructing a police officer, MCL 750.81d(1). Defendant was sentenced as an habitual offender, third offense, MCL 769.11, to 84 to 240 months’ imprisonment for assault with intent to do great bodily harm less than murder and 18 to 48 months’ imprisonment for resisting and obstructing a police officer with credit for 200 days, the two sentences to run concurrently.

Defendant argued that his conviction for resisting and obstructing a police officer should be reversed because the evidence showed that the conduct for which he was charged occurred during an unconstitutional warrantless arrest.

The offense of resisting and obstructing a police officer requires the prosecutor to prove beyond a reasonable doubt that (1) defendant assaulted, battered, wounded, resisted, obstructed, opposed, or endangered a police officer performing his duties, and (2) defendant knew or had reason to know that the person the defendant assaulted, battered, wounded, resisted, obstructed, opposed, or endangered was a police officer performing his duties at the time. MCL 750.81d(1); People v Nichols, 262 Mich App 408, 410; 686 NW2d 502 (2004). “Obstruct” includes the knowing failure to comply with a lawful command. MCL 750.81d(7)(a). Conduct constituting resisting and obstructing a police officer includes failing to obey a police officer’s command to stop and flight or attempted flight from the scene. See People v Wess, 235 Mich App 241, 242; 597 NW2d 215 (1999); People v Pohl, 207 Mich App 332, 333; 523 NW2d 634 (1994). In addition, as articulated by the Court in People v Ventura, 262 Mich App 370, 377; 686 NW2d 748 (2004), MCL 750.81d(1) does not require that the arrest be lawful.

The facts are that after defendant was told by Officer Brett Johnston and Sergeant Timothy Sutherland that he was under arrest, defendant resisted and obstructed the police officers by pulling away from Officer Johnston, trying to slam a door shut, and trying to run away from the officers. The Court noted that the record supported the conclusion that it was perfectly clear to defendant that Officer Johnston and Sergeant Sutherland were police officers. They were in full uniform and arrived in two fully marked police cars. Based on the foregoing, the Court found that the elements of MCL 750.81d(1) were established.

The defendant next argued that his conviction of resisting and obstructing a police officer should be reversed because “the police may not enter a suspect’s house without a warrant to make a felony arrest.”   The Court ruled that the record supported the conclusion that the police officers went to defendant’s home with sufficient probable cause to arrest him on the basis of allegations of physical assault and unlawful imprisonment, that the officers attempted to physically arrest defendant at the doorway while they were outside of his home, that defendant broke away from them and that they only entered his home to complete the arrest.
The case was affirmed.

People v. Bennett, case no. 286548, released December 29, 2009.

The defendant faced charges of operating while intoxicated, MCL 257.625(1), third offense, MCL 257.625(9).  The Wayne County Prosecuting Attorney’s Office appealed by leave granted an order suppressing the results of Datamaster breathalyzer tests. 

At approximately 2:00 a.m., in August 2007, defendant was driving home when Officer Curtis Johns observed him speeding 20 miles per hour above the speed limit. Officer Johns followed defendant and pulled him over after seeing him cross the center line.  Following the field sobriety tests, defendant pleaded with Officer Johns to let him go because an arrest would ruin his career and he was only a mile away from home. Not persuaded, Officer Johns administered a Preliminary Breath Test (PBT). Defendant’s PBT result was 0.17. Officer Johns arrested defendant for operating a vehicle under the influence of liquor and transported him to the police station. They arrived at 2:17:47 a.m., and the parties agreed that defendant was seated in the booking room by 2:18:24 a.m. Defendant remained in Officer Johns’ presence until 2:45:28 a.m., when Officer Johns administered the first DataMaster test.  The first test registered 0.17 Blood Alcohol Content (BAC). Two minutes later, Officer Johns administered the second test, which registered 0.18 BAC.

The defendant moved to suppress arguing that there was no probable cause for the arrest and that the administrative procedures for conducting the DataMaster test were not followed. The prosecution, argued that even without the PBT result, there was probable cause to make the arrest.  Regarding the DataMaster test at the police station, the prosecution argued that any technical violations of the administrative rule requiring a 15-minute observation period before using the DataMaster were not substantial enough to warrant suppressing the results. 

The court of appeals agreed with the prosecutor and held that viewing all of the evidence available to the officer at the time of the arrest, there were enough facts and circumstances present such that a fair-minded person with average intelligence could conclude that there was a substantial chance that defendant was driving while intoxicated.

As to the next issue, the court of appeals held that the accuracy of the first test cannot be seriously questioned. The court noted that defendant was handcuffed behind his back for more than one minute and 25 seconds before the observation period arguably started. Therefore, he could not have placed anything in his mouth during this time. Moreover, there is no evidence that defendant regurgitated during this small window, and no evidence that he regurgitated or placed anything in his mouth throughout the observation period. Second, a subsequent DataMaster test was administered at 2:47:46 a.m.

Because it occurred 15 minutes and 53 seconds after the time defendant argued the observation period began, the court stated it complied with the 15-minute observation period requirement. Again, the first test yielded a 0.17 BAC result and the second test yielded a 0.18 BAC result. Thus, the accuracy of the allegedly “compromised” first test cannot be seriously called into question, since it is bolstered by the result of the second test.

The Court reversed and remanded for proceeding consistent with its opinion. 

People v. Blow, case no. 288781, released December 22, 2009.