According to Section 4(h) of the MMMA the marihuana “shall not be seized or forfeited” (MCL 333.26424(h)), meaning that once things are clarified the marihuana should be returned to the individual. However, Federal Law under the Controlled Substance Act (CSA), 21, USC §841(a)(1) states to the contrary. The CSA states that returning the marihuana is illegal, and the law enforcement officer that returns such is breaking the law.

The Attorney General of the State of Michigan, Bill Scheutte, has weighted in on the issue. He believes the CSA preempts the MMMA, and that law enforcement officers do not have to return marihuana back to an individual once confiscated, irrespective of whether that individual is otherwise protected from criminal prosecution under the MMMA. Attorney General Bill Scheutte’s full opinion can be found on the Office of the Attorney General’s website, under opinions at http://www.ag.state.mi.us/opinion/opinions.aspx (Opinion No. 7262, Dated November 10, 2011). Like many of the issues associated with the MMMA this issue will no doubt find its final resolution in Court.

1. The individual applying may only have been convicted of 1 offense, with a limited exception; a person may have been convicted of 1 or 2 minor offenses. A “minor offense” is one where the maximum punishment doesn’t exceed 90 days in jail and a $1,000 fine.
2. The offense committed cannot have been a felony or attempt to commit a felony for which the maximum punishment is life in prison, or a violation of the criminal sexual conduct statutes.
3. Five years must have passed following the sentence, or if the individual was convicted to time in prison following the completion of their imprisonment.

The procedure involved to set aside a conviction is very particular, and it is advisable to consult with an attorney when beginning the process.

If you have any questions about filing a motion to set aside conviction, its requirements or process, please feel free to contact Hills at Law, P.C. today for a free initial consultation.

Q: I’m 83 years old and got a letter from the Secretary of State saying they needed to meet with me about my driving (I don’t have any points, either). Recently, I was in a little fender bender. No one was hurt with only a scrape on my car. The girl got upset and said she would report me for being too old to drive. What can I expect at this meeting?

A: This is a re-examination. you’ll be required to pass a written and vision test. If you pass, you’ll take a road test. If your driving record is good and you don’t appear to be seriously confused, you’re not likely to lose your driving privileges. If you fail on any or all of the tests, they can suspend or restrict your driving privileges and possibly request a report from your doctor on your ability to drive. Things can go badly at these meetings. I suggest you contact an experienced attorney to prepare you for this meeting and assure your rights are protected.

If you have any questions about Michigan’s driver’s license laws or how to restore a suspended or revoked Michigan driver’s license, Contact Hills Law Office today.

Q: I was arrested for drunk driving and I refused to take a breath test. Now the Secretary of State wants to suspend my driver’s license for refusing the test. Can they do that?

A: There are two types of breath tests that the police could have asked you to take. A Preliminary Breath Test (PBT) that would have been requested before you were arrested which carries a $100 fine. Second, the police can ask you to take the breathalyzer at the jail which can result in a one year suspension of your driving privileges if refused. Sounds like you are accused of refusing the breathalyzer at the jail. Once you receive notice from the police that they intend to ask the State to suspend your license you only have 14 days to contest the suspension by requesting a hearing. If your request for a hearing is not timely the State will automatically suspend your license and add 6 points to your driving record. You should contact an attorney at once to protect your driving privileges.

If you have any questions about Michigan’s driver’s license laws or how to restore a suspended or revoked Michigan driver’s license, Contact Hills Law Office today.

Marijuana is still considered a controlled substance, and the federal government’s establishment of these new provisions supersedes state law, even though Michigan has enacted legislation which allows some individuals the use of medical marijuana.

If you have any questions regarding this federal law, please give our office a call.

Q: When a driver’s license is revoked for two or more drunk driving convictions, how long will it take to get a driver’s license back?

A: There is a mandatory 12 month waiting period before you can apply for a license. Preparing for a hearing requires quite a bit of work. You ahve to get a substance abuse evaluation, gather the proper supportive evidence, organize it and be prepared to effectively present it to a hearing officer. It can take 8 to 12 weeks to gather the evidence and get it ready to submit. The State will schedule a hearing within 4-6 weeks after your hearing.

When I was a hearing officer, I knew people who had been without driving privileges for many years because they failed to present the proper evidence. That’s why an experienced attorney advising and guiding you in preparation for a hearing is quite valuable. There isn’t a guarantee that you will get your license after your hearing, but the earlier you start, the better your case will be.

Beware: If your appeal is denied you generally have to wait 12 months to reapply for a license. Don’t wait until you get a job offer that requires you to drive.

If you have any questions about Michigan’s driver’s license laws or how to restore a suspended or revoked Michigan driver’s license, Contact Hills Law Office today.

Q: I hear since you retired as a Driver Assessment & Appeals Division hearing officer, they haven’t hired a replacement and have gone to video hearings. Is that true?

A: Yes. Since I retired, Driver Assessment and Appeals Division (DAAD) decided not to reassign a specific hearing officer to hold “in person” hearings in the Kalmazoo / Portage area. For an “in person” hearing people will need to drive to Grand Rapids, Lansing or Livonia. You can have a video hearing from numerous sties around the state. The nearest video site for this area is located in the Secretary of State office in Portage.

Procedures for requesting a video hearing are different than requesting an “in person” hearing. DAAD randomly assigns hearing officers to hold video hearings so you don’t know which officer will be assigned. When I conducted hearings in Kalamazoo, attorneys pretty much knew what to expect when they appeared before me. Given these changes, I suggest that anyone requiring a DAAD hearing contact an attorney who is familiar with DAAD procedures.

If you have any questions about Michigan’s driver’s license laws or how to restore a suspended or revoked Michigan driver’s license, Contact Hills Law Office today.

Q: If I’m arrested for drunk driving and asked to take a breath or blood test do I have the right to talk to a lawyer before I decide to take the test or not?

A: No. After being arrested for drunk driving you do not have the right, be it under the Constitution or by case law, to speak to a lawyer before taking a breath or blood test pursuant to the implied consent law.

If you are asked to take a breath / blood test and you ask to be allowed to speak to a lawyer before you make a decision, Michigan case law states that law enforcement should give you a “reasonable opportunity” to speak to a lawyer before you are charged with refusing the breath / blood test. There are no hard and fast rules as to what a reasonable opportunity is so each case will be considered on its own merits.

As a former hearing officer my advice is don’t refuse a breath / blood test just because you did not reach an attorney. If you are charged with refusing a breath / blood test, you only have 14 days to file an appeal or your driving privileges will automatically be suspended. Contact an attorney who specializes in implied consent law cases.

If you have any questions about Michigan’s driver’s license laws or how to restore a suspended or revoked Michigan driver’s license, Contact Hills Law Office today.

Q: I had 3 points on my license until a recent ticket brought my points up to 8. I just got notice that I owe a DRF fee of $100. I already paid fees for my ticket. What is this?

A: Enacted in October of 2003 the DRF was touted as a way to convince drivers to driver responsibility by charging them fees for poor driving behaviors. Many see it as a tax. The fee is imposed when you accumulate 7 or more points. Also, no matter how many points you have if you are convicted of a qualifying violation such as, but not limited to: OUIL, OWI or driving while suspended you will owe a DRF fee.

The fees start at $100 up to $1,000 and will be assessed annually for two years. My advice is to not ignore a notice that you owe a DRF. If you don’t have the money to pay it in full you need to contact the Michigan Dept. of Treasury to set up a payment plan.

Beware: If you do not pay the DRF fee, or set up payments, your driving privileges will be suspended and you will be assessed an additional $125 reinstatement fee. Any DRF unpaid fees will be taken out of your State income tax refund and applied to your balance. If you are picked up for DWLS because of a DRF, or any other reason, contact an attorney who may be able to work with the court to mitigate the criminal penalties and get your suspension removed.

If you have any questions about Michigan’s driver’s license laws or how to restore a suspended or revoked Michigan driver’s license, Contact Hills Law Office today.

Q: I was arrested for drunk boating. Will it affect my driver’s license if I’m convicted?

A: A conviction for drunk boating will not affect your driving privileges.

You could have been charged with one of two “drunk boating” crimes. Both are criminal misdemeanors. The charge of operating a vessel while under the influence of intoxicating liquor (OVUIL) is the more serious and is punishable with up to 45 days community service, a fine of between $100 and $500, and imprisonment for up to 93 days. The penalties increase with a second conviction within 7 years of the 1st — up to a $1,000 fine, up to 90 days community service and imprisonment for up to 1 year. A third conviction within 10 years can be charged as a felony and can result in imprisonment for up to 5 years.

If you refuse a breath test you will have your boating privileges suspended for 6 months for the first conviction. If you are caught operating a vessel while your boating privileges are suspended the vessel you were operating (even if it’s not your own) will be impounded for not less than 30 days no more than 120 days. You should contact an attorney at once to protect your boating privileges.

If you have any questions about Michigan’s driver’s license laws or how to restore a suspended or revoked Michigan driver’s license, Contact Hills Law Office today.