What’s up is that whoever wrote that has either been misread the Michigan texting while driving law or was not keen enough to read the plain language of the statute for the Michigan no e-mailing / no text messaging while driving law.

If it does not go on your master driving record with the Michigan Secretary of State, how can there be a “second offense” penalty because law enforcement and the State of Michigan would know you ever got a prior offense if it was not no your driving record, right? Bottom line is whoever wrote that is wrong, or it was written before the final law as it is currently written went into effect.

As evidenced by the memo from Citizens Insurance Company above, clearly this type of ticket for emailing or texting and driving goes on your Michigan driving record.

Paul J. Zalewski
Canu, Torrice & Zalewski, PLLC / CTZ Law
http://www.AllLegalMatters.com
(586) 285-1700

http://www.michiganautolaw.com/auto-lawyers-blog/2010/07/13/new-texting-while-driving-ban-in-michigan-%E2%80%93-your-questions-answered/

Our insight into this new and confusing traffic law caught the attention of local Channel 7 news reporters in Michigan, who featured a segment with Paul J. Zalewski from this law firm about the hidden penalties contained in Michigan’s no text messaging while driving law.

Until now, the Michigan criminal and traffic defense lawyers at CTZ Law could only speculate how insurance companies would treat this type of traffic ticket for emailing or texting and driving in Michigan. We were correct in our concern over the effects of this new

CTZ Law has been provided with a copy of a confidential memo from Citizen’s Insurance Company to their respective insurance agents in Michigan that reads as follows:

Texting/Emailing While Driving – Effective 9/1/10

Drivers ticketed for texting or emailing while driving will be assessed the same surcharge as a careless driving incident.This is effective 9/1/2010. For existing policies, the violation will be added at the next renewal. The violation will remain on the policy for 3 years.

Although this memo is just from one insurance carrier, there is no doubt that all major insurance companies will follow suit by implementing similar policies in order to radically increase your insurance rates.

Careless Driving in Michigan is a 3 point civil infraction and is one of the most severe civil infraction traffic tickets (non-criminal) that a police officer can issue. As evidenced by this memo, this allegedly harmless 0 point offense for emailing or texting while driving will actually be treated like a 3 point Careless Driving ticket by insurance companies, who will use this to drastically increase your insurance rates for 3 years! It is unremarkable that insurance companies and insurance lobbies were such strong supporters of this new legislation.

This is just further proof that if you are issued a traffic ticket in Michigan for emailing or texting while driving from your cell phone, it will cost you FAR more than the $100 fine for a 1st offense, unless you retain the services of a qualified defense attorney to fight these charges or negotiate a plea on your behalf. We strongly encourage you to contact CTZ Law immediately if you are issued such a citation and not to merely pay this ticket, otherwise that $100 you think you are spending on the violation may have another “0” added to the end of the dollar amount you think it will cost you. Do not give the insurance companies more of your hard earned dollars by being misled to believe this is just a traffic ticket with a fine and no points; it will clearly have far more of an impact on your wallet than you were led to believe.

Canu, Torrice & Zalewski, PLLC / CTZ Law

http://www.AllLegalMatters.com

(586) 285-1700

Paul J. Zalewski
Canu, Torrice & Zalewski, PLLC / CTZ Law
http://www.AllLegalMatters.com
(586) 285-1700

Like all traffic ticket cases in Michigan, the burden of proof for a civil infraction like texting and driving is only a “preponderance of the evidence,” not “beyond a reasonable doubt” like criminal cases. This is basically a “more likely than not standard, or a 51% certainty). Also, remember with traffic tickets you are not entitled to a jury trial, it is determined by a hearing (an “informal hearing” if you are unrepresented by counsel, or a “formal hearing” if you have a lawyer) before the magistrate or judge, and furthermore the rules of evidence do not apply. Therefore, courts will typically defer to the officer’s testimony and alleged observations when making a determination of whether you are “responsible” for the offense. So, basically unless you can prove with pretty convincing evidence that you are “not responsible” of this offense, your word generally doesn’t count for much vs. the police officer…which is why you would need to bolster your defense against a texing while driving ticket with proof that you were not texting, e-mailing, etc. at the time you were stopped. Our attorneys may be able to obtain this information through the issuance of subpoenas, if necessary. Otherwise, if the officer says he believed that you were texting and that’s why he gave you the ticket, and you say you weren’t texting, don’t be shocked when the court takes the cop’s word over yours at a hearing, every single time.

The real problem cuts deeper than the mere issuance of a traffic ticket for violation of the Michigan no texting while driving law though. If an officer claims they had a “reasonable suspicion” that you were texting and driving in Michigan, they can use this as an excuse to stop you and “investigate,” like for example late at night, and then they can use their suspicion of texting and driving as a pretext to see if you are doing something else, like, oh, let’s say . . . drinking and driving, or engaging in some other sort of illegal activity. This is the reason there is a large potential for abuse with this law. Being free from warrentless searches and seizures of our person and property, like our motor vehicles, is a Consitutional right. We have allowed the Michigan legislature to open the door for violations of our 4th Amendment rights with the texing while driving law, because it lends itself to subjective application by overzealous law enforcement.

Unlike speeding, failing to use a turn signal, disregarding a red light, or other such traffic offenses that, texting while driving is largely a judgment call, and the attorneys at CTZ Law do not approve of having our client’s Constitutional rights potentially violated because someone “thought” you were doing something wrong.

If you are charged under Michigan’s no texting while driving law, or if you are arrested for OWI / DUI / drunk driving in Michigan as a result of being stopped by police for a suspicion of texting while driving, you should contact the defense attorneys at CTZ Law immediately for legal representation. We will not tolerate any violation of your Constitutional rights, and neither should you.

Paul J. Zalewski
Canu, Torrice & Zalewski, PLLC / CTZ Law
http://www.AllLegalMatters.com
32059 Utica Road
Fraser, MI 48026
(586) 285-1700

In your case, if you are charges with Urinating in Public in Detroit, then this is a far less serious offense than indecent exposure.

In Michigan, the misdemeanor offense of indecent exposure could require a convicted defendant to be registration on the Michigan Public Sex Offender Registry, in addition to possible jail time and other penalties.

Indecent Exposure in Michigan is a criminal defense defined by statute as follows:

750.335a Indecent exposure; violation; penalty.
Sec. 335a.
(1) A person shall not knowingly make any open or indecent exposure of his or her person or of the person of another.
(2) A person who violates subsection (1) is guilty of a crime, as follows:
(a) Except as provided in subdivision (b) or (c), the person is guilty of a misdemeanor punishable by imprisonment for not more than 1 year, or a fine of not more than $1,000.00, or both.
(b) If the person was fondling his or her genitals, pubic area, buttocks, or, if the person is female, breasts, while violating subsection (1), the person is guilty of a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.
(c) If the person was at the time of the violation a sexually delinquent person, the violation is punishable by imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life.

The criminal defense lawyers at CTZ Law have successfully defended our clients on indecent exposure and urinating in public charges, and have saved our clients from mandatory registration on the Michigan Public Sex Offender Registry and jail.

If you have been charged with urinating in public, or more serious offenses such as indecent exposure, lewd conduct, gross indecency or any misdemeanor sex offense the criminal defense attorneys at CTZ Law will fight aggressively to keep such a devistating criminal conviction off your record.

In your situation, you would be a fool not to get an attorney involved immediately. Please contact my law firm today and schedule a free consultation.

Paul J. Zalewski
Canu, Torrice & Zalewski, PLLC / CTZ Law
http://www.AllLegalMatters.com
(586) 285-1700

The relevant Michigan statute, MCL 750.377a provides:

750.377a Willful and malicious destruction of property; personalty.

(4) If the sentence for a conviction under this section is enhanced by 1 or more prior convictions, those prior convictions shall not be used to further enhance the sentence for the conviction pursuant to section 10, 11, or 12 of chapter IX of the code of criminal procedure, 1927 PA 175, MCL 769.10, 769.11, and 769.12.

As the plain language of the statute indicates, you may be found guilty if you destroy or injure the property, which means if the speakers were damaged in any way (which would be unremarkable if you intentionally hosed the interior of your neighbor’s car, as alleged), then you are guilty of MDOP.

However, the attorneys at CTZ Law have represented thousands of these types of cases all over the state of Michigan, and our Michiga criminal defense lawyers have been able to negotiate a reduction or dismissal of such charges, even when there is no substantive defense.

Call CTZ Law today for a free consultation and we will be happy to discuss the defense of your case in further detail.

Paul J. Zalewski
Canu, Torrice & Zalewski, PLLC / CTZ Law
http://www.AllLegalMatters.com
(586) 285-1700

762.11 Criminal offense by individual between ages 17 and 20; assignment to status of youthful trainee; exceptions; definitions.

Sec. 11.

(1) Except as provided in subsections (2) and (3), if an individual pleads guilty to a criminal offense, committed on or after the individual’s seventeenth birthday but before his or her twenty-first birthday, the court of record having jurisdiction of the criminal offense may, without entering a judgment of conviction and with the consent of that individual, consider and assign that individual to the status of youthful trainee.

(2) Subsection (1) does not apply to any of the following:

(a) A felony for which the maximum penalty is imprisonment for life.

(b) A major controlled substance offense.

(c) A traffic offense.

(d) A violation, attempted violation, or conspiracy to violate section 520b, 520c, 520d, or 520e of the Michigan penal code, 1931 PA 328, MCL 750.520b, 750.520c, 750.520d, and 750.520e, other than section 520d(1)(a) or 520e(1)(a) of the Michigan penal code, 1931 PA 328, MCL 750.520d and 750.520e.

(e) A violation, attempted violation, or conspiracy to violate section 520g of the Michigan penal code, 1931 PA 328, MCL 750.520g, with the intent to commit a violation of section 520b, 520c, 520d, or 520e of the Michigan penal code, 1931 PA 328, MCL 750.520b, 750.520c, 750.520d, and 750.520e, other than section 520d(1)(a) or 520e(1)(a) of the Michigan penal code, 1931 PA 328, MCL 750.520d and 750.520e.

(3) The court shall not assign an individual to the status of youthful trainee if any of the following apply:

(a) The individual was previously convicted of or adjudicated for a listed offense for which registration is required under the sex offenders registration act, 1994 PA 295, MCL 28.721 to 28.732.

(b) If the individual is charged with a listed offense for which registration is required under the sex offenders registration act, 1994 PA 295, MCL 28.721 to 28.732, the individual fails to carry the burden of proving by clear and convincing evidence that he or she is not likely to engage in further listed offenses.

(c) The court determines that the offense involved any of the following:

(i) A factor set forth in section 520b(1)(a) to (h) of the Michigan penal code, 1931 PA 328, MCL 750.520b.

(ii) A factor set forth in section 520c(1)(a) to (l) of the Michigan penal code, 1931 PA 328, MCL 750.520c.

(iii) A factor set forth in section 520d(1)(b) to (e) of the Michigan penal code, 1931 PA 328, MCL 750.520d.

(iv) A factor set forth in section 520e(1)(b) to (f) of the Michigan penal code, 1931 PA 328, MCL 750.520e.

(4) As used in this section:

(a) “Listed offense” means that term as defined in section 2 of the sex offenders registration act, 1994 PA 295, MCL 28.722.

(b) “Traffic offense” means a violation of the Michigan vehicle code, 1949 PA 300, MCL 257.1 to 257.923, or a violation of a local ordinance substantially corresponding to that act, that involves the operation of a vehicle and, at the time of the violation, is a felony or a misdemeanor.

What this all means for you is that it is possible for us to get the second possession of marijuana to stay off your record. However, you do need a competent attorney to be able to convince the judge to allow this to happen. Judges are reluctant to give HYTA if they already know that you have a possession of marijuana charge on your record. The reasoning is that you would essentially be getting two bites at the apple. Of course, this is all assuming you plead guilty or are guilty. Keep in mind that you have to plead guilty to get HYTA.

Please contact us if you have additional questions.

Peter A. Torrice
Canu, Torrice & Zalewski, PLLC
32059 Utica
Fraser, MI 48026
586-285-1700
http://WWW.ALLLEGALMATTERS.COM

I am glad you are happy with the results and thank you for your comments on our website.
I wish you all the best.

P.S. You better not violate any of the other terms of probation in that Court, it will be unpleasant, just FYI.

Paul J. Zalewski
Canu, Torrice & Zalewski, PLLC/CTZ Law
http://www.AllLegalMatters.com
(586) 28-1700

Here a few blog links where MIP charges and penalties in Michigan are discussed in detail:

http://alllegalmatters.com/blog/michigan-legal-matters/mi-mip/

http://alllegalmatters.com/blog/general/michigan-attorney-mip-13-years-violation-probation-judge-asadoorian-rochester-hills-michigan-523district-court/

http://alllegalmatters.com/blog/legal-questions/need-attorney-for-mip-at-u-of-m-was-caught-drinking-playing-beer-pong-at-party-can-one-of-your-michigan-criminal-defense-lawyers-keep-this-off-my-record/

http://alllegalmatters.com/blog/general/michigan-attorney-question-for-mip-minor-in-possession-of-alcohol-charge-at-michigan-state-university-east-lansing-court-what-are-penalties/

There are only 2 ways keep your record clean from an MIP charge, and both require the representation of a quaified criminal defense attorney to insure that everything is done properly. Some people will tell you just plea on your own and ask the court to keep it off your record. That is BAD advice because often you maybe misled by the prosecutor that the charge will stay off your record, but really it is abstacted as a conviction. It’s like anything else, if you are not a mechanic, don’t try to rebuild your car engine or change your transmission. If you are not an attorney, don’t complain when you screw your case up.

The first way to keep an MIP off your record in Michigan is through a plea negotiated by an attorney where the defendant’s plea to an MIP is taken “under advisement” pursuant to certain statutes that allow such deferral where after a period of probation is completed, the charge is removed from your criminal record and only maintained as a non-public record.

The second is though an expungement or motion to set aside conviction. Our main Michigan website at http://www.AllLegalMatters.com fully addresses criminal expungement law for a motion to set aside a conviction in Michigan. Click on this link for more detailed info that will answer most of your questions, because this process is very involved and requires a lot of work:

http://www.alllegalmatters.com/criminal-record-expungement-michigan.html

However, absent these 2 common scenerios, your MIP conviction will never just “fall off” your record.

The good news is it sounds like our law firm can set aside this conviction from your record, but we need to get some more information from you first. Our Michigan criminal defense lawyers will be able to clear your record in a relatively short period of time if you are qualified for expungement, so contact our office today at (586) 285-1700 for a free consultation.

Peter A. Torrice
Canu, Torrice & Zalewski, PLLC / CTZ Law
http://www.AllLegalMatters.com
(586) 285-100

This topic has been discussed a lot in this http://www.AllLegalMatters.com legal blog:

http://alllegalmatters.com/blog/legal-questions/solicitation-charge-offer-to-engage-in-detroit/comment-page-1/#comment-768

http://alllegalmatters.com/blog/general/solicitation-of-prostitute-offer-to-engage-another-for-act-of-prostitution-case-dismissed-in-detroits-36th-district-court-by-canu-torrice-zalewski-law-firm/

http://alllegalmatters.com/blog/general/offer-engage-dismissed/

The Detroit City Ordinance for Offering to Engage a Prostitute for Sex or Receiving and Admitting Another for an Act of Prostitution, it says, in relevant part:

Sec. 38-9-5. Engage or offer to engage services of another; aid, assist or abet; penalties.

As discussed elsewhere in this blog, the solicitation of a prostitute ordinance in Detroit doesn’t distinguish between undercover Detroit Police posing as prostitutes or actual prostitutes or street “hookers” and it covers a “public place” or “any other place.”

Your situation is a little unusual because they normally seize your vehicle, but that does not change the fact that the crime is the same, and subject to the same penalties, but Detroit Police frequently watch “known prostitutes” and arrest the “Johns” that approach them outside of the strip bars along 8 mile (assuming that’s where you were at).
You need the attorneys at CTZ Law to defend you in this case.

In order to evaluate your claims fully, we need to sit down with you for a free consultation. I will say that this law firm is extremely successful in getting these charges dismissed completely or reduced, and we have NEVER had any of our clients go to jail for this type of case in Detroit.

Thank you for visiting the http://www.AllLegalMatters.com blog and do not delay in contacting us immediately.

Paul J. Zalewski
Canu, Torrice & Zalewski, PLLC / CTZ Law
http://www.AllLegalMatters.com
(586) 285-1700

However, without reviewing your master driving record with Secretary of State, your old case file, and meeting with you for a free consulation, it will be impossible to advise you.

Contact our office today for a free consutation and we will find out what we can do, if anything.

Peter A. Torrice
Canu, Torrice & Zalewski, PLLC / CTZ Law
(586) 285-1700
http://www.AllLegalMatters.com

Without writing a 20 page brief on the protections of the 4th Ammendment and the case law addressing warrantless searches and seizures of automobiles, generally a police office may NOT perform a search of your person or vehicle as part of a normal traffic stop like for for speeding, rolling through a stop sign, running a red light, obtructed vision for having an air freshener in your rear view mirror (which is about the weakest traffic ticket I can imagine), or any other mere civil infraction. Rather, a police office must have a reasonable suspicion or probable cause to believe that a crime was committed, or it must be a search incident to your actual arrest for a crime – and even then such a seach is subject to many limitations. Violations of the 4th Ammendment generally require the supression of all evidence obtained by the court, which usually means a dismissal of the case.

Although we do not have a police report to review in this situation (and many times with a traffic ticket alone there is never a police report generated), based on your version of the facts in this case, the Eastpointe police did not appear to have a reason to search your or your vehicle because merely having an air freshener in your rear view mirror is not a crime (and arguably is not “obstructed vision” either – but they write tickets for this all the time). So unless you consented to the search of your person or your vehicle (meaning the cop asked if he could search you or the car and you said “yes”), this seems like an illegal search and seizure without a doubt. The question then becomes what is the remedy in your case?

Can you sue for a civil rights violation? Perhaps, but there are really no damages in your case unless your car was trashed or destroyed, and there also exists the protections of governmental immunity where police officers and other agents of the government are “immune” and protected for being sued for actions performed in the scope of their employment – even negligent acts. In fact, now government agents can only be sued for “gross negligence” which is defined bystatute as conduct so reckless as to demonstrate a substantial lack of concern whether injury would result. What does that mean? Yeah, good question – that’s for a judge or jury to decide.

Regarding the traffic ticket that was issued to you, since there is no subsequent criminal offense that you are being charged with aside from the traffic ticket for obstructed vision itself, there is really no way to have the charged dismissed because of the illegal search. For example, if the Eastpointe police discovered marijuana, heroin, cocaine, or an illegal firearm in your vehicle as a result of the alleged unlawful search, then the remedy would be to supress the evidence discovered if the search was found to be illegal and your case would be dismissed. This is not the case in your situation, so although the search was unnesessary, unjustified and illegal, it will still not require the initial civil infraction for obstructed vision to be dismissed. That must be challenged at a formal hearing in the 38th Judicial Court in Eastpointe. The People (prosecutor/city attorney) must prove at a hearing by a preponderance of the evidence that you were “responsible” for this civil infraction. The burden of proof is NOT “beyond a reasonable doubt” as it is in criminal cases, so therefore proving your responsibility for a traffic ticket is much easier for the prosecution.

The good news is Judge Carl Gerds is one of the best District Court Judges in the State of Michigan, and is extremely fair and open minded. The attorneys at CTZ Law supported Judge Gerds in his campaign when he was elected, and we are happy we did. He has always treated our law firm and our clients fairly, and if there is a defense to your case, he will entertain it, unlike other Judges who simply find everyone responsible of a traffic offense if the officer appears in court.

The other good news is we have a extremely strong professional relationship with all the city attonneys and prosecutors in Eastpointe, and if the case is weak, we may be able to have the citation dismissed without the need to even have a formal hearing.

If you would like to discuss this matter further, or retain our office to challenge this citation, contact us anytime for a free consultation at (586) 285-1700.

Thanks for your question to http://www.AllLegalMatters.com.

Paul J. Zalewski
Canu, Torrice & Zalewski, PLLC / CTZ Law
(586) 285-1700
http://www.AllLegalMatters.com

See, even though you are “innocent until proven guilty” in the criminal justice system, the Michigan Secretary of State issues a 625g Temporary Driving Permit while your drunk driving case is pending, which automatically appears on your Michigan driving record (and yes, this serves as a flag to any police officer who runs your driving record that you have a pending drunk driving case). What may be happening is that the Secretary of State is only showing a pending OWI/DUI charge, and no conviction, which means the only picture ID you would be eligible to obtain in Michigan is a MI ID card (since the 625g permit serves as your driver’s license).

Again, obtain a coopy of your driving record and contact our law firm for a free consulation with one of our Michigan driver’s license experts.

Andrew M. Canu
Can, Torrice & Zalewski, PLLC/CTZ Law
http://www.AllLegalMatters.com
(586) 285-1700

In fact, there is a group called Mother’s Against Texting and Driving (sounds like anther type of Mother’s Against Drunk Driving “MADD” organization) that have been campaigning nationally for this exact type of law (see link below):

http://www.youtube.com/watch?v=jIUYBNmCrKA

Therefore, you can expect the no texting while driving laws and penalties to increase as time goes on. Based on the difficluties facing police in interpreting and enforcing this new law, do not be suprised if the language of the statute (and the penalties) changes in the near future.

________________________________________________________________________

DEPARTMENT OF COMMUNITY HEALTH

DIRECTOR’S OFFICE

MICHIGAN MEDICAL MARIHUANA

(By authority conferred on the director of the department of community health
by section 5 of initiated law 1 of 2008, MCL 333.26421 and executive
reorganization order numbers 1996-1, 1996-2 and 2003-1, MCL 330.3101, MCL
445.2001 and MCL 445.2011)

R 333.101 Definitions.
Rule 1. As used in these rules:

(1) “Act” means the Michigan medical marihuana act, Initiated Law 1 of
2008, MCL 333.26421.

(2) “Applicant” means a qualifying patient applying for a medical
marihuana registry identification card on a form provided by the department
of community health.

(3) “Code” means 1978 PA 368, MCL 333.1101.

(4) “Conviction” or “convicted” means a criminal conviction of an offense
by a guilty verdict from a judge or jury, plea of guilty, or plea of no
contest.

(5) “Debilitating medical condition” means 1 or more of the following:

(a) Cancer, glaucoma, positive status for human immunodeficiency virus,
acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral
sclerosis, Crohn’s disease, agitation of Alzheimer’s disease, nail patella,
or the treatment of these conditions.
(b) A chronic or debilitating disease or medical condition or its
treatment that produces, for a specific patient, 1 or more of the following:
cachexia or wasting syndrome; severe and chronic pain; severe nausea;
seizures, including but not limited to those characteristic of epilepsy; or
severe and persistent muscle spasms, including but not limited to those
characteristic of multiple sclerosis.
(c) Any other medical condition or treatment for a medical condition
approved by the department pursuant to a petition submitted under R 333.133.

(6) “Department” means the department of community health.

(7) “Enclosed, locked facility” means a closet, room, or other enclosed
area equipped with locks or other security devices that permit access only by
a registered primary caregiver or registered qualifying patient.

(8) “Marihuana” means that term as defined in section 7106 of the code.

(9) “Medicaid health plan” means the medical assistance program managed by
the department.

(10) “Medical use” means the acquisition, possession, cultivation,
manufacture, use, internal possession, delivery, transfer, or transportation
of marihuana or paraphernalia relating to the administration of marihuana to
treat or alleviate a registered qualifying patient’s debilitating medical
condition or symptoms associated with the debilitating medical condition.

(11) “Paraphernalia” means any item defined as “drug paraphernalia”
pursuant to section 7451 of the code.

(12) “Parent or legal guardian” means the custodial parent or legal
guardian with responsibility for health care decisions for a qualifying
patient who is under 18 years of age.

(13) “Petition” means a written request for the department to add new
medical conditions or treatments to the list of debilitating medical
conditions under R 333.101(5).

(14) “Physician” means an individual licensed as a physician under part
170 or 175 of the code. For purposes of the act, neither a physician
assistant nor a nurse practitioner is authorized to sign the statement
attesting to the patient’s debilitating medical condition.

(15) “Primary caregiver” means a person who is at least 21 years old and
who has agreed to assist with a patient’s medical use of marihuana and who
has never been convicted of a felony involving illegal drugs.

(16) “Public place” means a place open to the public.

(17) “Qualifying patient” means a person who has been diagnosed by a
physician as having a debilitating medical condition.

(18) “Registry identification card” means a document issued by the
department that identifies a person as a registered qualifying patient or
registered primary caregiver.

(19) “Supplemental Security Income” means the monthly benefit assistance
program administered by the federal government for persons who are age 65 or
older, or blind, or disabled and who have limited income and financial
resources.

(20) “Usable marihuana” means the dried leaves and flowers of the
marihuana plant, and any mixture or preparation thereof, but does not include
the seeds, stalks, and roots of the plant.

(21) “Visiting qualifying patient” means a patient who is not a resident

of this state or who has been a resident of this state for less than 30 days.
(22) “Written certification” means a document signed by a physician
stating the patient’s debilitating medical condition and stating that, in the
physician’s professional opinion, the patient is likely to receive
therapeutic or palliative benefit from the medical use of marihuana to treat
or alleviate the patient’s debilitating medical condition or symptoms
associated with the debilitating medical condition.

(23) Terms defined in the act have the same meanings when used in these
rules.

R 333.103 New registration application; qualifying patient and primary
caregiver.

Rule 3. A qualifying patient applying for a registry identification card
shall comply with all of the following:

(a) Submit a completed application on a form provided by the department,
together with the requisite fee. The completed application shall include all
of the following:
(i) Name, address, and date of birth of the qualifying patient. The
address for the qualifying patient shall be a physical address located in
this state. A qualifying patient who is homeless shall not be required to
provide a physical address.
(ii) Name, address, and telephone number of the qualifying patient’s
physician.
(iii) The name, address, and date of birth of the patient’s primary
caregiver, if applicable. A qualifying patient may designate 1 primary
caregiver to assist with his or her medical use of marihuana.
(iv) A designation of whether the qualifying patient or the patient’s
primary caregiver, if applicable, will be allowed to possess marihuana plants
for the qualifying patient’s medical use.
(v) An attestation by the primary caregiver named on the application that
he or she agrees to serve as the patient’s primary caregiver.
(vi) A primary caregiver shall authorize the department to use the
information provided on the application to secure his or her criminal
conviction history to determine if he or she has a felony conviction
involving illegal drugs.
(b) Submit photographic identification of both the qualifying patient and
the patient’s primary caregiver, if applicable. If the qualifying patient is
under the age of 18 and does not have photographic identification, no
photographic identification is required. Photocopies of the following shall
be considered acceptable forms of identification:
(i) Current driver’s license or identification card, with photo, issued by
a state.
(ii) Identification card with photo issued by a federal, state, or
government agency.
(iii) Current military identification card.
(iv) Current passport.
(v) Current student identification card with photo.
(vi) Native American tribal identification with photo
(vii) Permanent resident card or alien registration receipt card.
(c) Submit a written certification, as defined in R 333.101(22), signed by
a licensed physician. If the qualifying patient is under the age of 18,
written certifications from 2 physicians are required.
(d) If the qualifying patient is under the age of 18, submit a declaration
of person responsible form.

R 333.105 Declaration of person responsible form.

Rule 5. A declaration of person responsible form is required for any
qualifying patient who is under the age of 18. The form shall include all of
the following:

(a) A statement that the qualifying patient’s physician has explained to
the patient and the patient’s parent or legal guardian the potential risks
and benefits of the medical use of marihuana.
(b) Consent of the qualifying patient’s parent or legal guardian to allow
the qualifying patient’s medical use of marihuana.
(c) Consent of the qualifying patient’s parent or legal guardian to serve
as the patient’s primary caregiver and to control the acquisition, dosage,
and frequency of use of the marihuana by the patient.

R 333.107 Incomplete application.
Rule 7. If an applicant fails to provide the information required under R
333.103 or R 333.105, as applicable, the application shall be denied. The
department shall notify the applicant of the information that is missing in
the event the applicant wishes to reapply. An applicant may reapply at any
time.

R 333.109 Verification of information.
Rule 9. The department shall verify the information contained in an
application and the accompanying documentation, which may include, but is not
limited to, the following:

(a) Contacting each applicant by telephone or by mail. If proof of
identity cannot be determined with reasonable reliability, the department may
require the production of additional identification materials.
(b) Contacting the parent or legal guardian of a qualifying patient who is
under the age of 18.
(c) Verifying that a physician is licensed to practice in the state.
(d) Contacting the certifying physician directly to confirm the validity
of the written certification.

R 333.111 Fees; reduced fees; renewal.

Rule 11. (1) The fee for a new or renewal application is $100.00, unless a
qualifying patient can demonstrate his or her current enrollment in the
Medicaid health plan or receipt of current Supplemental Security Income
benefits, in which case the application fee is $25.00. To qualify for a
reduced fee, an applicant shall satisfy either of the following requirements:
(a) Submit a copy of the qualifying patient’s current Medicaid health plan
enrollment statement.
(b) Submit a copy of the qualifying patient’s current monthly Supplemental
Security Income benefit card, showing dates of coverage.

(2) The department shall deny the application of a qualifying patient who
submits a reduced fee for which he or she is not eligible and shall notify
the qualifying patient of the application denial. A qualifying patient may
resubmit the correct fee with his or her qualifying documentation at any time.

(3) The fee for a revised or duplicate copy of the registration
identification card for the qualifying patient or the primary caregiver is
$10.00. If a duplicate card is requested, the qualifying patient or primary
caregiver shall submit to the department the fee with a statement attesting
to the loss or destruction of the card.

R 333.113 Registration approval; denial.
Rule 13. (1) Pursuant to section 6(c) of the act, the department shall
approve or deny an application within 15 days of receiving a completed
application and the requisite fee.

(2) If an application is approved, within 5 days of approving the
application, the department shall issue a registry identification card to the
registered qualifying patient and the registered primary caregiver, if
applicable. The registry identification card shall include all of the
following:

(a) The name, address, and date of birth of the registered qualifying
patient.
(b) If the registered qualifying patient has designated a primary
caregiver, the name, address, and date of birth of the registered primary
caregiver.
(c) The issue date and expiration date of the registry identification
card.
(d) A random and unique identification number.
(e) A clear designation showing whether the registered primary caregiver
or the registered qualifying patient will be authorized to possess marihuana
plants for the registered qualifying patient’s medical use. The designation
shall be determined based solely on the registered qualifying patient’s
preference.

(3) When a registered qualifying patient has designated a primary
caregiver, the department shall issue a registry identification card to the
registered primary caregiver. The registered primary caregiver’s registry
identification card shall contain the information specified in subrule (2) of
this rule, as appropriate.

(4) The department shall deny an application for any of the following:

(a) The applicant did not provide the physician’s written certification.
(b) The department determines that any information provided by the
applicant was falsified.
(c) An applicant fails to provide a physical address located in this
state. This provision shall not apply if the applicant is homeless.
(d) The applicant failed to meet the requirements of R 333.107.

(5) If the department denies an application, the department shall mail the
applicant a denial letter within 15 days of receipt of the completed
application. The denial letter shall be sent by certified mail to the address
listed on the application form and shall state the reasons for denial and
when the applicant may reapply.

(6) Denial of a registry identification card shall be considered a final
department action, subject to judicial review.

Rule 333.115 Primary caregiver; number of qualified patients; compensation.

Rule 15. (1) The department shall issue a registry identification card to
the primary caregiver, if any, who is named in a qualifying patient’s
approved application. A registered primary caregiver may assist not more than
5 qualifying patients with their medical use of marihuana.

(2) A registered primary caregiver may receive compensation for costs
associated with assisting a registered qualifying patient in the medical use
of marihuana. Any such compensation shall not constitute the sale of a
controlled substance.

R 333.117 Annual renewal; expiration of registry identification card; fee.
Rule 17. (1) Pursuant to section 6(e) of the act, a registry
identification card shall be renewed on an annual basis to maintain active
status as a registered qualifying patient or a registered primary caregiver.

(2) A registry identification card shall expire on the first day of the
month 1 year following issuance of the card.

(3) An applicant for renewal of a registry identification card shall
submit an application and information as provided in R 333.103(a), (c) and
(d).

(4) If an applicant fails to comply with subrules (1) and (3) of this rule
by the expiration date on the registry identification card, the registry
identification card shall be considered null and void and of no further
effect. The applicant may submit a new application to the department.

(5) The department shall verify the renewal application information in the
same manner as specified in R 333.109.

R 333.119 Changes in status; notifications; requirements.
Rule 19. (1) In order to update registry information for a qualifying
patient or primary caregiver, the registered qualifying patient, registered
primary caregiver, or registered qualifying patient’s parent or legal
guardian, as applicable, is responsible for notifying the department of a
change in any of the following:
(a) The registered qualifying patient’s name.
(b) The registered qualifying patient’s address.
(c) The registered qualifying patient’s primary caregiver.
(d) The registered qualifying patient’s legal guardian.

(2) The department may notify a registered primary caregiver by certified
mail at the address of record within 14 days of any changes in status
including, but not limited to, both of the following:

(a) The registered qualifying patient’s termination of the individual’s
status as primary caregiver or designation of another individual as the
registered primary caregiver.
(b) The end of eligibility for the registered qualifying patient to hold a
registry identification card.

(3) If the department is notified by a registered qualifying patient that
the registered primary caregiver for the patient has changed, the department
may notify the initial primary caregiver by certified mail at the address of
record that the caregiver’s registry identification card is null and void and
of no effect.

(4) If a registered qualifying patient’s certifying physician notifies the
department in writing that the patient has ceased to suffer from a
debilitating medical condition, the department shall notify the patient
within 14 days of receipt of the written notification that the patient’s
registry identification card is null and void and of no effect.

Rule 333.121 Confidentiality.
Rule 21. (1) Except as provided in subrules (2) and (3) of this rule,
Michigan medical marihuana program information shall be confidential and not
subject to disclosure in any form or manner. Program information includes,
but is not limited to, all of the following:

(a) Applications and supporting information submitted by qualifying
patients.
(b) Information related to a qualifying patient’s primary caregiver.
(c) Names and other identifying information of registry identification
cardholders.
(d) Names and other identifying information of pending applicants and
their primary caregivers.

(2) Names and other identifying information made confidential under
subrule (1) of this rule may only be accessed or released to authorized
employees of the department as necessary to perform official duties of the
department pursuant to the act, including the production of any reports of
non-identifying aggregate data or statistics.

(3) The department shall verify upon a request by law enforcement
personnel whether a registry identification card is valid, without disclosing
more information than is reasonably necessary to verify the authenticity of
the registry identification card.

(4) The department may release information to other persons only upon
receipt of a properly executed release of information signed by all
individuals with legal authority to waive confidentiality regarding that
information, whether a registered qualifying patient, a qualifying patient’s
parent or legal guardian, or a qualifying patient’s registered primary
caregiver. The release of information shall specify what information the
department is authorized to release and to whom.

(5) Violation of these confidentiality rules may subject an individual to
the penalties provided for under section 6(h)(4) of the act.

Rule 333.123 Complaints.

Rule 23. The department shall refer criminal complaints against a
registered qualifying patient or registered primary caregiver to the
appropriate state or local authorities.

R 333.125 Revocation; nullification.

Rule 25. (1) A registered qualifying patient or registered primary
caregiver who has been convicted of selling marihuana to someone who is not
allowed to use marihuana for medical purposes under the act, shall have his
or her registry identification card revoked and may be found guilty of a
felony punishable by imprisonment for not more than 2 years or a fine of not
more than $2,000.00, or both, in addition to any other penalties for the
distribution of marihuana.

(2) A registry identification card that is later determined to be based on
fraudulent information is null and void and of no effect.

(3) Any person who has been convicted of a felony involving illegal drugs
shall not serve as a qualifying patient’s primary caregiver under the act.

(4) The department shall send written notice by certified mail to a
registered qualifying patient or the patient’s registered primary caregiver
of any of the following:

(a) An intent to revoke or nullify a registry identification card.
(b) That a primary caregiver no longer qualifies for approval under the
act based on a felony drug conviction.

(5) The notice referenced in subrule (4) of this rule shall include the
right to request a contested case hearing. If the request for hearing is not
filed with the department within 21 days from the date the notice was mailed
by the department, the right to request a contested case hearing shall be
waived.

Rule 333.127 Management of medical marihuana.

Rule 27. (1) A qualifying patient who has been issued and possesses a
registry identification card shall not be subject to arrest, prosecution, or
penalty in any manner, or denied any right or privilege, including but not
limited to civil penalty or disciplinary action by a business or occupational
or professional licensing board or bureau, for the medical use of marihuana
in accordance with the act, if the qualifying patient possesses an amount of
marihuana that does not exceed the following:

(a) Two and one-half (2.5) ounces of usable marihuana.
(b) If the qualifying patient has not specified that a primary caregiver
will be allowed under state law to cultivate marihuana for the qualifying
patient, 12 marihuana plants kept in an enclosed, locked facility.
(c) Any incidental amount of seeds, stalks, and roots.

(2) A primary caregiver who has been issued and possesses a registry
identification card shall not be subject to arrest, prosecution, or penalty
in any manner, or denied any right or privilege, including but not limited to
civil penalty or disciplinary action by a business or occupational or
professional licensing board or bureau, for assisting a qualifying patient to
whom he or she is connected through the department’s registration process
with the medical use of marihuana in accordance with the act, if the primary
caregiver possesses an amount of marihuana that does not exceed the following:

(a) Two and one-half (2.5) ounces of usable marihuana for each registered
qualifying patient to whom he or she is connected through the department’s
registration process.
(b) For each registered qualifying patient who has specified that the
primary caregiver will be allowed under state law to cultivate marihuana for
the qualifying patient, 12 marihuana plants kept in an enclosed, locked
facility.
(c) Any incidental amount of seeds, stalks, and unusable roots.

(3) An individual may simultaneously be registered as a qualifying patient
and as a primary caregiver.

Rule 333.131 Review panel for reviewing petitions for additional medical
conditions or treatments.

Rule 31. (1) The department shall appoint a panel of not more than 15
members to review petitions to add medical conditions or treatments to the
list of debilitating medical conditions under R 333.101 (5). A majority of
the panel members shall be licensed physicians, and the panel shall provide
recommendations to the department regarding whether the petitions should be
approved or denied.

(2) Members of the review panel shall include, but not be limited to, the
Michigan chief medical executive and 7 appointed members of the advisory
committee on pain and symptom management as described in MCL 333.16204a. The
7 review panel members from the advisory committee on pain and symptom
management shall include 4 licensed physicians and 3 non-physicians.

(3) The department shall provide staff support to the review panel to
assist with the scheduling of meetings, conference calls, dissemination of
petition-related materials, and to perform other administrative duties
related to the performance of the panel’s review.

(4) A quorum of the review panel shall concur with the recommendation in
order to be considered an official recommendation of the panel. For the
purposes of this subrule, a majority of the members appointed and serving on
the review panel constitutes a quorum.

Rule 333.133 Petition to add qualifying diseases or medical conditions;
review panel; recommendations.

Rule 33. (1) The department shall accept a written petition from any
person requesting that a particular medical condition or treatment be
included in the list of debilitating medical conditions under R 333.101.

(2) The department shall submit the written petition to the review panel.
Within 60 days of receipt of the petition, the panel shall make a
recommendation to the department regarding approval or denial of the petition.

(3) Upon receipt of a recommendation from the review panel, the department
shall do all of the following:

(a) Post the panel’s recommendations on the department’s website for
public comment for a period of 60 days.
(b) Give notice of a public hearing not less than 10 days before the date
of the hearing.
(c) Hold a public hearing within the 60-day time period that the
recommendation from the panel is posted on the department’s website.

(4) After a public hearing, the department shall forward comments made
during the hearing to the panel for review. If, based on a review of the
comments, the panel determines that substantive changes should be made to its
initial recommendation, the petition shall be denied, the department shall
provide the petitioner with a copy of the initial recommendation and an
explanation of the substantive changes, and the petitioner may resubmit the
petition to the department at any time. If no changes are made to the
initial recommendation or the changes are minor and do not affect the general
content of the recommendation, the department shall forward the
recommendation to the department director for a final determination on the
petition.

(5) Within 180 days of the date the petition is filed with the department,
the department director shall make a final determination on the petition. The
approval or denial of the petition shall be considered a final department
action subject to judicial review under the act.

(6) If the petition is approved, the department shall create a document
verifying the addition of the new medical condition or treatment to the list
of debilitating medical conditions identified under R 333.101. Until such
time as these rules are amended to officially recognize the medical condition
as a qualifying debilitating medical condition, the department shall develop
a policy that allows the new medical condition to be used as a qualifier for
a registry identification card.

_______________________________________________________________________

Canu, Torrice & Zalewski, PLLC / CTZ Law
http://www.AllLegalMatters.com
(586) 285-1700

http://www.legislature.mi.gov/documents/2009-2010/publicact/htm/2010-PA-0060.htm