Nye Approved for Access to Bankruptcy Courts Program
Nye & Associates, PLLC was approved by a special committee affiliated with the United States Bankruptcy Court for the Eastern District of Michigan as an approved law firm for the Access to Bankruptcy Courts Program. This program is a privately funded legal aid program to assist low income persons with paying for attorneys to prepare and file bankruptcies. Recently, Attorney Nye attended a meeting in Detroit led by the Hon. Marci McIvor regarding the administration of the program. Generally, persons whose income is less than 150 percent of the federal poverty guidelines are eligible for consideration by the program. If approved by the committee, the applicant is then referred to an approved attorney who prepares and files the bankruptcy with the assistance of the client and is then paid a nominal fee for providing the legal services. Nye & Associates, PLLC is honored to have been approved by this prestigious panel for providing top-notch bankruptcy legal services to the less fortunate in the community. To apply, you can contact the program directly at this link: http://www.accesstobankruptcycourt.com/
Social Security Ruling 11-1p and its Effect on Disability Claimants
I stated in an earlier post that if denied at the ALJ Hearing level, you can appeal to the Appeals Council, file a new application, or do both. This information is now outdated.
Recently, Social Security handed down a new ruling that says when appealing an ALJ decision to the Appeals Council, claimants cannot file a new application, which changes what has been the rule since 1999. The now “old” rule allowed claimants to file a new application while their Appeal was pending at the Appeals Council (as the Appeals Council can take 18-30 months to make a decision).
What this means for claimants is that you must now choose between appealing the ALJ decision or filing a new application.
This ruling is part of a series of changes that are meant to help Social Security to decrease their heavy workload (and as some suggest, to tighten their purse strings).
You may still file a new application if there has been a critical or disabling change in your condition. Discretion is left to the field office where you apply – if the particular worker finds that there has been a critical or disabling change, they will allow you to file that new application.
However, this will be the exception rather than the rule – it is likely that Social Security field offices will use this ruling as yet another reason to turn applicants down. Further, “critical and disabling” is not well-defined, so it is hard to tell what evidence you would need to show the field office in order for them to allow your new application.
There is some movement among attorneys that this ruling violates your Constitutional Due Process rights, and it may well be stricken down in time, but for now, this is the new rule.
This rule does not apply if you are filing for a different title or for a different benefit. For example, if your current pending claim is for SSD (Title 16) benefits, and you have NOT filed for SSI (Title 2) benefits, you MAY file a new claim for SSI benefits if your SSD claim is pending at the Appeals Council.
You may still submit new evidence of your disabling condition as long as it is before the date that you appealed to the Appeals Council – anything after that date will not be considered. In that case, if you have evidence after you have appealed to the Appeals Council of your condition becoming critical or disabling, you may wish to dismiss your Appeals Council claim and file a new application.
Remember, you only have 60 days from the date of your denial letter to appeal.
If you have recently been denied by the ALJ and are trying to decide whether to appeal or to file a new application, please contact us for a free consultation.
Drunk Driving in Michigan
DUI, OWI, OWVI, OUID, OUIL Superdrunk what does this all mean and what are the differences?
There are a multitude of drinking and driving charges.
The main first offense charges are:
1) Operating While Visibly Impaired MCL 257.625(3),
2) Operating While Intoxicated MCL 257.625(1),
3) Operating with a High BAC MCL 257.625(1)(c), and
4) Operating With Any Presence of a Schedule 1 Drug MCL 257.625(8).
Operating while visibly impaired is when your blood alcohol content is below .08 but there is enough to noticeably impair your driving.
Operating while Intoxicated is driving with an blood alcohol content greater than .08. It makes no difference if your driving is not impaired.
Operating with a High BAC is also known as “Superdrunk” and occurs when you are driving with a blood alcohol content that us .17 or higher.
Operating With Any Presence of a Schedule 1 Drug can be illegal or legal drugs. If the drug is illegal also known as a Schedule One drug (which includes marijuana) then any amount in your blood will be enough for a conviction. If you are using a legal drug such as a prescribed pain pill, then it will have to be proven that the prescription pills are a controlled substance and impaired your driving and would be charged under OWI (Operating While Intoxicated MCL 257.625(1)(a))
These offenses have both criminal penalties as well as Secretary of the State driving penalties. The fallout for a first offense drinking charge is:
|
Charge |
Maximum Jail Time |
Community Service |
Maximum Fines |
Minimum Fines |
Suspension (No Driving) |
Suspension (Restricted) |
Driving Points |
Driver’s Responsibility Fees |
| OWVI | 93 Days | Up to 360 Hours | $300.00 | $0.00 | 0 Days | 90 Days | 4 Pts | $500.00 for two years |
| OWI | 93 Days | Up to 360 Hours | $500.00 | $100.00 | 30 Days | 150 Days | 6 pts | $1000.00 for two years |
| High BAC | 180 Days | Up to 360 Hours | $700.00 | $200.00 | 45 Days | 325 Days | 6 pts | $1000.00 for two years |
| OWPD | 93 Days | Up to 360 Hours | $500.00 | $100.00 | 30 Days | 150 Days | 6 pts | $500.00 for two years |
This table does not include the penalties for aggravated drinking charges such as Operating While Intoxicated resulting in a Death or Injury and Child Endangerment Operating While Intoxicated which occurs when the person charged with a drinking related driving offense also has a child under 16 in the car.
For Second offenses, the penalties steeply increase.
|
Charge |
Maximum Jail Time |
Minimum Jail Time |
Community Service |
Maximum Fines |
Minimum Fines |
License Revocation |
Driver’s Responsibility Fees |
| OWVI | 1 Year | 5 Days |
30 Day Min. 90 Day Max. |
$1,000.00 | $200.00 | 365 Days | $500.00 for two years |
| OWI | 1 Year | 5 Days |
30 Day Min. 90 Day Max. |
$1,000.00 | $200.00 | 365 Days | $1000.00 for two years |
| OWPD | 1 Year | 5 Days |
30 Days Min. 90 Days Max. |
$1,000.00 | $200.00 | 365 Days | $500.00 for two years |
For second offenses there is not a suspension period on your license because your license is revoked for a year. In addition, High BAC only applies to a first offense charge.
Any third or subsequent offense is a felony in Michigan.
If you need help with any of these charges, Nye Law & Associates is more than capable of helping you.
Implied Consent, What is it and how does it hurt you?
If you are pulled over for suspected drunk driving, you are generally put through some field sobriety tests, concluding in a preliminary breath test (PBT) where you blow into a device and it checks your breath for blood alcohol levels. Then if the levels are above a certain amount, the officer will arrest you and take you to do a more formal blood alcohol test. This is either done though a breathalyzer called a Datamaster, or they draw blood and send it in for testing.
If you do not wish to take the PBT or blow into the Datamaster, or allow blood to be drawn you have every legal right not to. The officer will then attempt to get a search warrant from the judge to allow him to have your blood drawn and checked. The potential criminal situation continues down that path.
What you might not be aware of is that there are driving penalties associated with refusing to take the PBT, Datamaster or allow your blood to be drawn. The Secretary of State has its own penalties associated refusing these procedures. In Michigan there is an Implied Consent law. Which means that as a driver, in order to drive, you are consenting to these tests should an officer reasonable ask for them.
The officer has at his discretion the decision to go forward with alerting Secretary of State of your implied consent refusal. Secretary of State will then suspend your license for a full year, with no restricted license available, in addition to 6 points being added to your license. This is mainly independent from the criminal charges, if your blood alcohol level was above a .08.
You do have an opportunity to fight this by appealing and having a hearing on the matter in front of (or most likely by video) a Secretary of State hearing administrator. There are four things that will be looked at
- If the officer had reasonable grounds to believe that you had committed a crime of operating a vehicle while intoxicated,
- Whether you were placed under arrest for this crime,
- If your refusal was reasonable, and
- Whether you were advised of your implied consent rights.
The burden is on the Government, in most cases the arresting officer, to prove that you violated the implied consent rule. The level of proof is by a preponderance of the evidence, which means anything over 50% sure that the implied consent rule was violated.
If you get an adverse ruling from the Secretary of State official you still have the opportunity to appeal to the Circuit Court where the offense took place. However, no new evidence can be presented, that judge will look at the evidence presented and transcript from the previous hearing and decide your case on either a hardship request or look at it for legal error.
Implied consent violations sneak up on you because people usually are not focused on possible Secretary of State action when looking a criminal charge in the face. However, we at Nye & Associates can help you.
Antrim County 86th District Court
86th District Court for Antrim County Michigan
205 East Cayuga Street
Bellaire, MI 49615
Hon. Judges Michael S. Stepka, Thomas J. Phillips & Michael J. Haley
Magistrate Shirley Dewitt
Criminal Sentencings, June 2011;
- operating while impaired; 22 year old Alden man sentenced to 365 days probation, $928.00 in fines and costs, $125.00 in restitution.
- operating with out a license on person; 26 year old Grand Rapids man ordered to pay $208.00 in fines and costs.
- operating with out a license on person; 25 year old Central Lake woman ordered to pay $308.00 in fines and costs.
- assault/assault-and-battery; 20 year old Mancelona man was sentenced to 93 days in jail, $328.00 in fines and costs.
- operating with out a license on person; 23 year old Kewadin woman ordered to pay $198.00 in fines and costs.
- operating while intoxicated; 46 year old Mancelona man sentenced to 365 days probation, $678.00 in fines and costs.
- operating with out a license on person; 44 year old Ponca Springs woman ordered to pay $248.00 in fines and costs.
- operating with out a license on person; 40 year old East Jordan man ordered to pay $98.00 in fines and costs.
- DNR hunt/shoot from safety zone; 22 year old East Jordan man ordered to pay $478.00 in fines and costs.
- non-sufficient funds less than $100.00; 22 year old Lansing man sentenced to 366 days probation, $848.00 in fines and costs, $489.00 restitution.
- operating with suspended license; 22 year old Lake City man ordered to pay $583.00 in fines and costs.
- possession of controlled substance/marijuana, operating while impaired; 24 year old Kalkaska man ordered to pay $1,631.00 in fines and costs, $125.00 restitution.
- domestic violence 2nd offense/malicious destruction of personal property $200.00 2nd offense; 30 year old Mancelona man sentenced to 365 days in jail less 43 days served, $1,136.00 in fines and costs.
- operating with out a license on person; 44 year old Detroit woman ordered to pay $208.00 in fines and costs.
- operating while impaired; 29 year old Central Lake man sentenced to 15 days in jail less 15 days served, 365 days probation, $1,378.00 in fines and costs, $125.00 in restitution.
- breaking and entering without owner’s permission; 29 year old Bellaire man sentenced to 2 days in jail, less 2 days served, 365 days probation, $1,083.00 in fines and costs.
- alcohol/purchase/consume/poss-minor 3rd offense; 20 year old Warren man was sentenced to 183 days probation, $348.00 in fines and costs.
- operating while impaired; 29 year old Western Springs, Illinois man sentenced to 360 days probation, 24 hours community service, $1,028.00 in fines and costs.
Criminal Sentencings, July 2011;
- operating with suspended license; 32 year old Kalkaska man ordered to pay $483.00 in fines and costs.
- operating with out license in possession; 31 year old Rapid City man ordered to pay $208.00 in fines and costs.
- operating with out license in possession; 18 year old East Jordan man ordered to pay $208.00 in fines and costs.
- operating while intoxicated/impaired, second offence; 24 year old Germfask woman ordered to pay $1,078.00 fines and costs, serve 120 days in jail.
- domestic violence; 31 year old Charlevoix man sentenced to pay $628.00 in fines and costs, 21 days in jail, 550 days probation.
- operating while impaired; 22 year old Washington man ordered to pay $1,028.00 in fines and costs, $125.00 restitution, serve 2 days in jail with 2 days credit, 360 days probation.
- domestic violence, 2nd offense/attempted P/O, assault/resist/obstruction; 42 year old East Jordan man ordered to pay $1,736.00 fines and costs, 365 days in fail with 37 days credit.
- license plate/reg/title – unlawful use; 19 year old Central Lake man oredered to pay $248.00 in fines and costs.
- malicious destruction of personal property less than $200.00; 27 year old Elk Rapids man ordered to pay $528.00 in fines and costs, 365 days probation 2 days in jail with 2 days credit.
- operating while intoxicated/impaired – 2nd offence; 29 year old Central Lake man ordered to pay $1,283.00 in fines and costs, $125.00 in restitution, 180 days in jail with credit for 133 days.
- operating while impaired; 38 year old Mancelona man ordered to pay $1,278.00 in fines and costs, $125.00 in restitution, 24 hours community service, 366 days probation.
- use of contained substance-narcotic/cocaine; 31 year old Mancelona man ordered to pay $1,583.00 in fines and costs, 90 days in jail with 6 days credit, 550 days probation.
- driving while intoxicated; 49 year old Mancelona man ordered to pay $928.00 in fines and costs, $125.00 in restitution, 366 days probation.
- operating while impaired; 23 year old Williamsburg man ordered to pay $1,028.00 fines and costs, $120.55 restitution, 24 hours community service, 366 days probation.
- OUIL; 21 year old Clarkston woman ordered to pay $1,028.00 in fines and costs, $125.00 restitution, 24 hours community service, 366 days probation.
- no proof of insurance; 25 year old Ellsworth man ordered to pay $165.00.
- alcohol purchase-consume-possession, minor; 18 year old Walton man ordered to pay $273.00 fines and costs.
The End of Dispensaries
Another bill, introduced as House Bill 4850, will effectively criminalize the dispensary business model. The bill provides that the only authorized transfers under the Michigan Medical Marijuana Act are from a caregiver to a patient who is directly registered to that caregiver with the state. Moreover, a caregiver can only recieve compensation from a patient registered directly to that caregiver with the state. Any transfers that are not directly between the caregiver and that caregiver’s registered patient are now going to be 2 year felonies. So if you are a cancer patient, and your caregiver is your Uncle Bubba who did a darn poor job of growing your medicine, you would be subject to criminal prosecution if you got your medicine from your next door neighbor, who was also a caregiver (but not yours) and had grown excellent medicine.
Unfortuntately for patients (and fortunately for the Mexican drug cartels) there seem to be no advocates proposing counter-legislation in the Michigan legislature which is consistent with the the right of Michigan residents to use medical marijana and acquire that marijuana under any market-based system allowing for economies of scale, profit motive, and ultimately quality production of quality medicine. Recently, the Criminal Law Section of the State Bar of Michigan (comprised of defense attorneys and prosecutors) adopted a recommendation that legislative reform in Michigan should adopt the Colorado model. That model allows for strict regulation of the medical marijuana business, but recognizes and adopts basic, common sense regulation for large grow operations, vertically-integrated business models, profit-based systems, and corresponding taxation.
If you are a medical marijuana patient, then you should write your state senator and state representative that you oppose the current knee-jerk legislation proposed by reefer-madness-minded legislators and urge consideration and adoption of legislation similar to the progressive, highly-regulated, profit-based, and tax generating laws of Colorado.
Legislative Backlash Against Michigan Medical Marijuana Begins
The backlash against medical marijuana in Michigan, partly as a result of the poor language of the existing law, partly as a result of the abuse of the existing law by some people, and partly because of conservative opposition to the entire idea, has taken three general forms.
The first form of the backlash is by prosecutors (including the attorney general) and judges who apply the law strictly.
The second backlash is from local governments using legitimate (and illegitimate) zoning regulations to regulate or prohibit lawful activity.
The third backlash is coming from the legistlature (and attorney general) in the form of new laws and attorney general opinions. This backlash is led by Republican Rick Jones of Grand Ledge and Attorney General Bill Schuette. (Elsewhere in this blog, I note the attorney general’s recent opinion limiting the way caregivers can grow and manage their plants.)
Currently, 22 bills are pending in the legislature that somehow affect the Michigan Medical Marijuana Act. Over the next several weeks, we will examine each of the pending bills.
First, they are going after the doctors. In particular, they are going after the “certification mills.” Currently, a doctor merely has to certify that the patient has a debilitating condition that would benefit from treatment by medical marijuana. Most patients are not aware that, if they obtain a certification from a doctor and obtain a medical marijuana card, then the patient could still be forced to prove that he or she satisfied the criteria for a debilitating condition. Nevertheless, the vast majority of medical marijuana patients have been certified by only a handful of doctors, whom do nothing more than have a patient fill out a form, answer a few questions,and then certify the patient’s qualification. Everyone familiar with this process, whether proponent or opponent, knows it is a joke and nothing more than a de facto legalization of marijuana for anyone willing to pay a second-rate M.D. or D.O. $100.00 for an “examination.” (However, there are some certification clinics, run by doctors, that legitimately establish a doctor-patient relationship and consider the patient’s request in a proper medical context.)
As a result of the certification mills, there is now pending in the Michigan House Bill No. 4851. The bill would require a 4 step test to determine if a patient and physician had a “bona fide physician-patient relationship.” In particular, the bill provides:
1. The physician must complete an in person, physical examination and “full assessment” of both medical history and current medical and psychological condition.
2. The physician treated the patient for the “debilitating condition” for a reason other than obtaining certification; and the doctor has maintained records for the patient “in accord with medically accepted standards.”
3. The physician has a “reasonable expectation” that he or she will provide follow-up care and treatment to “monitor the efficacy” of the use of marijuana.
4. The physician has notified the patient’s “primary care physician” “if appropriate.”
Additionally, the bill provides that an “enclosed locked facility” could only be accessed by 1) a patient’s own facility if there was no caregiver, or 2) a caregiver for a patient (a patient could not access his or her caregiver’s facility.)
Advocates say that those who wish to continue to use medical marijuana should begin aggressively demanding that their primary care doctors consider prescribing medical marijuana so that it becomes a treatment option for mainstream medical providers.