MSC holds that a meth lab is not an incendiary device used as a weapon under OV 2

In People v. Jackson, No. 149173, the Michigan Supreme Court ruled that Offense Variable (“OV”) 2, for Lethal Potential of Weapon Possessed or Used, must be scored zero when an incendiary device is not used as a weapon, but as part of a methamphetamine lab. The defendant was convicted of manufacturing a controlled substance stemming from operation of a meth lab.  At sentencing, he was scored under OV 2 for possession of an incendiary device.  He appealed his sentence to the Court of Appeals, which denied leave to appeal.  In lieu of granting leave to appeal, the Supreme Court vacated the defendant’s sentence and remanded for resentencing with instructions to score zero points for OV 2. The Court also found that the trial court properly assigned a score of five points under OV 15, which applies if either the offense involved delivery or possession with intent to deliver of a controlled substance, or if the offense involved possession of a controlled substance under circumstances that indicate trafficking. Since there was evidence of delivery of drugs, the score was appropriate. The court refused to grant leave to appeal on any other ground.
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COA Holds No-Fault Statute of Limitations Protects Insurers after One Year

In Jesperson v Auto Club Ins. Ass’n, No. 315942, the Michigan Court of Appeals held that a first-party no-fault suit must be filed within one year of the accident that caused the injury.  Further, if the plaintiff received benefits from the insurer prior to filing suit, the one-year statute of limitations will only extend if the benefits were received within one year of the accident. Read More

COA: Misdemeanor drug paraphernalia conviction is a controlled substance offense for purposes of PRV 5

In People v. Stevens, No. 312325, the Court of Appeals held that a misdemeanor conviction for possession of drug paraphernalia should be scored under prior record variable (“PRV”) 5 of the Michigan Sentencing Guidelines. Because “drug paraphernalia” is defined under the Public Health Code as instruments used to manufacture or ingest a “controlled substance,” the court found that a misdemeanor conviction for possession of drug paraphernalia is a controlled substance offense for the purposes of PRV 5. Criminal practitioners should take note of this sentencing guideline determination when considering potential challenges to their client’s pre-sentence investigation report.
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COA limits the scope of real estate transfer tax exemption

In the consolidated case of Gardner v. Department of Treasury, Nos. 315531, 315684 and 317171, the Court of Appeals addressed the applicability of a statutory exemption to the state's real estate transfer tax.  This exemption, found at MCL 207.526u, applies where (1) the principal residence exemption was claimed under MCL 211.7cc, and (2) the state equalized value (SEV) of the property at the time of sale was equal to, or less than, the SEV at the time of purchase.  That same statutory section, however, contains an exception to this exemption stating the seller will have to pay the tax (and potentially a penalty) if "the sale or transfer of property is found by the treasurer to be at a value other than the true cash value."  The Court looked to the annual property tax assessment process and interpreted "true cash value" as two times the property's SEV.  Thus, the majority opinion concluded that whenever a property is sold for more, or less, than two times the SEV, the seller will not be entitled to the transfer tax exemption. Read More

COA holds that Family Court may not order drug testing of parent of delinquent juvenile

In In re Dorsey, No. 309269, The Court of Appeals found that a family court violates the Fourth Amendment when it orders a parent to submit to drug testing in connection with juvenile delinquency proceedings, but denied relief to a mother held in contempt for violating such an order on waiver grounds. Read More
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