October 2009 Archives

October 30, 2009

Keeping Drug Charges off your Record in Michigan - 7411 - The Short Version

This is another installment of "Short Version" Blog articles which take the most important points from a longer, full-version article. In this article, we'll boil down the most important aspects from the longer article, "Drug Possession in Michigan - Keeping it off your Record with 7411." As a Criminal Defense Lawyer in Michigan, whose Practice involves the regular handling of Drug Cases in Macomb, Oakland and Wayne Counties, I am often asked by my clients about a way to keep a Drug Charge off of their Record.

In Michigan, there is a provision of the law known as "7411," which is the abbreviated citation for the actual law, MCL 333.7411. This section of the law is truly a gift for anyone without a prior Drug Record who winds up facing a Drug Possession Charge. It allows a person with a pending Drug Charge to work out a deal where they offer a Plea of "Guilty" to a Drug Possession Charge, and the Court, by arrangement, "holds" that Plea without putting it on their record. The best way I've thought of to describe how this works is this:

confidential stamp1.jpgA person charged with a Drug Possession Crime has his or her Lawyer work out a 7411 deal. If the deal goes through, the person Pleads guilty to the Drug Possession Charge, with an understanding that the Judge will "hold" the Plea in his or her desk drawer for a period of time. During that period (typically, about 1 year) the person will be placed on Probation (this may be Reporting or Non-Reporting Probation) and ordered to do certain things and not do others. If they do what they are ordered to do, and don't do anything they're not supposed to do, then at the end of the period set by the Judge, the whole matter is dismissed, and never goes on their Record.

Because all Drug Possession charges carry a mandatory Driver's License Suspension upon conviction (6 months for a 1st offense, with no driving for the first 30 days; the Court may, if it so chooses, grant a Restricted License for the remaining 5 months), the 7411 is a real break. Because a 7411 deal means there is no conviction, then the Secretary of State is not notified of anything, and thus there is no License Suspension.

Of course, if the person doesn't do what they are ordered to do as a Condition of Probation (like report, if that was ordered, or provide a urine sample, if that was ordered), or if they do something they weren't supposed to do (like get arrested for a new crime, or test positive for Drugs while on Probation), then their Probation will be "Violated" and the Judge is likely, before imposing any other punishment, to "Revoke" or take away the 7411 deal. This means that a conviction will then go on their Record and their License will subsequently be Suspended by the Secretary of State for a Drug Crime."

7411 is available for any Drug Possession Charge. This means that whether a person is charged with the Misdemeanor Offense of Possession of Marijuana, or the Felony Charge of Possession of Cocaine, Possession of Heroin, Possession of Analogues (Vicodin, Oxycontin, Valium, or any other narcotic derivative in pill form), or even Possession of Ecstasy ("E"), or any other Drug, for that matter, the whole case can be kept off of their record if they have no prior Drug Crimes in their past.

For those who meet the eligibility requirements of 7411 and who are successful in getting the deal, it offers what can basically be described as a "free pass." 7411 can only be granted once in a person's lifetime, so there is no second bite at the apple. In cases where a person doesn't have a good shot at beating the Charge, 7411 offers the same final outcome; the whole thing goes away with no Record.

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October 28, 2009

Marijuana Crimes in Michigan - The Short Version

This article is another installment of "Short Version" posts which boil down the essential points of larger, more detailed articles. This article will review the most important points set out in both Part 1 and Part 2 of the full-version article on Possession and Delivery of Marijuana. Because my Criminal Practice is limited to Macomb, Oakland and Wayne Counties, the issue of Jail time as discussed here may be different for cases being heard outside of the Metro-Detroit area.

Possession of Marijuana
is a Misdemeanor Offense. It can be charged either under State Law or Local Ordinance. When charged as a State Law Crime, the maximum penalty that can be imposed is up to 1 year in Jail (under all but the most exceptional circumstances, spending even 1 day in Jail is highly unlikely), a fine of up to $2000, and a 6 month mandatory Suspension of the Driver's License, with a Restricted License being available for the last 5 months, after the first 30 days of the suspension.

20090403_marijuana_leaf-1.jpgMost often, Possession of Marijuana is charged as a Local Ordinance Offense, and carries a maximum of 93 days in Jail (again, even serving 1 day of that, in all but the most unusual circumstances, is exceedingly unlikely), a fine of up to only $500, and the same 6 month suspension of the Driver's License.

A Possession of Marijuana Charge can be kept off of a person's record. If a person is under 21 years of age at the time of the Offense, and has not used what's called HYTA (which stands for Holmes Youthful Trainee Act), and doesn't have much, if any, of a prior Criminal Record, they can Plead guilty to the charge under an arrangement with the Court that provides the whole case will be deferred (kind of like kept in the Judge's desk drawer) and the person required to serve a term of Probation. If they complete that Probation without any problems, such as picking up any new charges or testing positive for drugs, and if they otherwise do whatever the Judge orders them to do, (that is, not have a "Probation Violation") the whole case will be dismissed at the end of the period of Probation

For anyone over 21, or even someone under 21 who has used HYTA before, the same kind of deal can be worked out using what's known as 7411. "7411" is a provision of the law (formally known as MCL 333.7411) which provides that person with no prior Drug Record can Plead guilty under an arrangement with the Court that keeps a Drug Charge (and Possession of Marijuana is a Drug Charge) off their record, just like HYTA does.

In the case of either HYTA or a 7411, a fine is assessed, and certain Conditions of Probation are ordered by the Judge. One of the most important parts of either of these deals is that since there is no Conviction recorded, there are no Driver's License Sanctions and thus no Suspended License.

In cases involving Possession with Intent to Deliver Marijuana, the potential punishment is the same as that for the Offense of Delivery and Manufacture of Marijuana. Both of these are Felony Charges. In cases where a person has been charged with Possession with Intent to Deliver (called a "P-WID") the goal of the Defense Lawyer is to reduce the charge to simple Possession so that a 7411 can be negotiated. HYTA is available (for those under 21 at the time of the Offense) in "P-WID" and actual Delivery Cases.

When someone has a prior Drug Record, and keeping a new Charge off their Record is not a possibility, then the goal of the Defense Lawyer is to avoid as much of the punishment and penalties as possible. The extent of what a person is facing, as well as what can and cannot be done by their Lawyer, depends on several factors, perhaps the most important of which is where the case is being heard.

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October 26, 2009

Possession and Delivery of Marijuana in Michigan - Part 2

This is the Second Part of our 2-Part article about Marijuana Cases in Michigan. In Part 1 of this article, we looked at simple Possession Charges, had a brief glimpse at Medical Marijuana, and then we touched on Possession with Intent to Deliver, and Delivery and Manufacture of Marijuana Charges. After reminding the reader that my Practice and experience in this field, while considerable, is limited to Macomb, Oakland and Wayne Counties, we examined how a person with no prior Drug Record can keep the whole Charge off of their Record using a provision of the Law known as a "7411."

In Part 2, we'll see what can be done for people who cannot keep a Possession of Marijuana Charge off of their Record because of a prior Drug Crime, and we'll look at a different option to keep a Marijuana Charge (or pretty much any Drug Crime) off of a person's Record, if the Offense occurred before their 21st birthday. In addition, we'll examine how to do "Damage Control" for those people who are facing the Charges of Possession with Intent to Deliver, and Delivery and Manufacture of Marijuana. Again, the same "disclaimer" from Part 1 applies here: I am a Criminal Defense Attorney whose office is in Mt. Clemens, and, as such, my Practice and experience (and therefore first-hand knowledge) in these matters is limited to handling cases in Macomb, Oakland and Wayne Counties. If your case is not being heard in the Metro-Detroit area, then the information provided in this article might not accurately describie how things are done where your case is pending.

large_Marijuana-Seizure-state.jpgAs we learned in Part 1, a "7411" is only available to someone with no prior Drug Record. If a person has a prior 7411, or any prior Drug Crime which was placed upon their Record, then they cannot have any subsequent Drug Charge (and Possession of Marijuana is a Drug Crime) deferred under section 7411. The old saying is that "you get 1 bite at the apple," and it holds true in the Law generally, and with Drug Crimes in particular.

Assuming a new Marijuana Charge is not likely to be dismissed or "beat" at Trial, a person who was over 21 at the time of the Offense, and who is otherwise ineligible for a 7411 deferral, must accept the fact that keeping a new Marijuana Charge off of their Record cannot be done. Instead, the focus for the me, at least, as the person's Defense Lawyer, shifts to seriously avoiding as many of the penalties as possible that a Marijuana Charge brings.

In cases where a person has a prior Drug Crime on their Record, and then picks up a subsequent Possession of Marijuana Charge, the goal of the Defense Lawyer moves from keeping it off their Record to minimizing all the negative consequences possible and, most importantly, to keeping them out of Jail. This is really a long-winded way of saying the focus shifts to "full-blown Damage Control." Of course, the first thing any Lawyer looks for is a way to beat the case. In truth, however, getting cases dismissed is far more the exception rather than the rule. When an analysis of the facts and circumstances surrounding a Marijuana Charge (or any other Charge, for that matter) lead one to conclude that the charge is likely to "stick," then minimizing all the negative consequences for the Client becomes the first order of business.

Continue reading "Possession and Delivery of Marijuana in Michigan - Part 2" »

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October 23, 2009

Possession and Delivery of Marijuana in Michigan - Part 1

As part of my Practice as a Criminal Defense Lawyer in Michigan, I encounter Marijuana Cases on a weekly basis, in the local Detroit-area Courts of Macomb, Oakland and Wayne Counties. Despite a recent change in Michigan Law permitting the use of what's known as "Medical Marijuana," all the cases that I see involve the Possession (or Delivery) of what can only be described as "Recreational Marijuana," or Marijuana that not is bought, sold, or possessed for any prescribed medical reason.

A proper examination of this subject cannot be done quickly. Because of that, we'll divide this article into 2 parts. In this first part, we'll look at simple Possession of Marijuana Charges, and how they can often be completely kept off of a person's Record. We'll also touch on the Charges of Possession with Intent to Deliver, and Delivery and Manufacture of Marijuana. In Part 2, we'll examine those situations where a person Charged with a Marijuana Crime has a prior Drug Charge on their record, or is under 21 years of age. Then we'll look at what happens to those who have been Charged with the more serious Offenses of Possession with Intent to Deliver, or Delivery and Manufacture of Marijuana.

marijuana-herb.jpgThe whole subject of Michigan Medical Marijuana is both complex and not yet completely settled. Because this Blog deals with the Possession of Marijuana that is NOT allowed by the Medical Marijuana Law, we won't waste any time trying to untangle that complex subject. From my point of view as a Criminal Attorney, if someone has been arrested for a Marijuana Crime and that person has been approved for Medical Marijuana, then I'd use that Certification to get the charge dismissed. It is important to keep in mind that even if a person would qualify for Medical Marijuana, but didn't have such certification at the time of their arrest, going out after the fact and getting that certification would not have an effect on any charge brought before it was issued.

Okay, so to be clear, we're talking about Marijuana charges brought against someone who did not have any Medical Marijuana Certification at the time of their Arrest or Citation (Ticketing). My experience is essentially limited to Macomb, Oakland and Wayne Counties. The Majority of Marijuana Charges that are brought involve simple Possession. While not nearly as common, other charges I frequently handle involve either Delivery and Manufacture, or Possession with Intent to Deliver (often called a "P-WID").

The Crime of Possession of Marijuana can be brought under State Law, or a corresponding Local Ordinance. This simply means that if a person is Arrested or Cited by the State Police, or if they are Arrested or Cited in a Municipality that, for some reason, does not have it's own Marijuana Ordinance (and there are very few that do not), they will be "written up" under the State Law that makes Possession of Marijuana a Misdemeanor punishable by up to 1 year in Jail (don't worry, even seeing one day of that is extremely unlikely), a fine of up to $1000, plus a 6 month suspension of the Driver's License. All Local Ordinances are punishable by up to 93 days in Jail (same thing; any Jail time is highly unlikely), a fine of up to $500, with the same 6 month suspension of the Driver's License.

Continue reading "Possession and Delivery of Marijuana in Michigan - Part 1 " »

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October 21, 2009

Michigan Misdemeanor Pre-Trials - The Short Version

As part of an ongoing series of "Short Version" Blog articles which summarize the essential points from previous, full-coverage versions of the same subject, we'll turn to the subject of Pre-Trials in Misdemeanor Cases. In the full-version Blog posts on this subject, we broke the subject into 2 parts: Part 1 dealt with the various technical terms involved in a Misdemeanor Pre-Trial, and Part 2 dealt with what happens when the Prosecutor and the Defense Lawyer discuss how to resolve a Criminal Case.

In my Practice as Criminal Defense Attorney, I almost exclusively handle cases in Macomb, Oakland or Wayne Counties. On occasion, I'll handle a matter in St. Clair, Lapeer, or Livingston County. My point is that what I write about in this Blog really arises from my day-to-day experience in the Metropolitan Detroit area.

legal-meeting-lawyers-negotiating-settlement-300x300.jpgThe term "Pre-Trial" is both descriptive and helpful in understanding the nature and purpose of the proceeding. A Pre-Trial is, at the heart of the matter, a meeting between the Defense Lawyer and the Prosecutor to discuss the issues involved in any particular case, and how they can be worked out. In practice, the Pre-Trial is a meeting pre, or prior to, an actual Trial, to see if the whole Trial thing can be avoided.

The vast, vast majority of Criminal Cases are resolved through a Plea, or Plea Bargain. Only a relatively small percentage of cases actually go to Trial and result in a verdict of either "Guilty" or "Not Guilty." Most Plea Bargains are worked out at the Pre-Trial stage. Therefore, the Pre-Trial is very important in the Criminal process.

When we talk about a "Plea Deal" or a "Plea Bargain," we're talking about everything from a way to keep the whole case off of someone's record, to reducing the charge, or just working out a deal to keep someone out of Jail.

Sometimes, a Pre-Trial results in the scheduling of another Pre-Trial, as both sides work toward a resolution. Sometimes, a matter will be scheduled for a Trial, with the hope that some deal can be worked out to avoid the expense and hassle involved in actually trying a case. This is not to say that Trials are not necessary; people are sometimes charged with crimes of which they are not guilty. Those cases, while more the exception rather than the rule, should be decided after a full airing of the facts.

It is during the Pre-Trial that both the Prosecutor and the Defense Lawyer learn what the other side has by way of evidence, witnesses, and the like. Sometimes one Party or the other discovers that their side of the case is much stronger than they thought, or, on the flip side, that their side of the case isn't nearly as good as they thought. Whatever the facts, the Pre-Trial really represents the first, solid opportunity for each Party to get a clear picture of both the strengths and weaknesses of both sides of a Criminal Case.

In the end, most Pre-Trials result in a Plea Bargain that puts the case to rest. As an example, the majority of Drivers charged with a First Offense Drunk Driving are able, through the negotiations of their Lawyer, to avoid the penalties associated with that Offense and instead work out a Plea Bargain to the less serious charge of Impaired Driving.

Whether a case is strong, or weak, and whether a Plea deal or Plea Bargain can, or even should be worked out, are all part of what make the Pre-Trial so important. It is the first and best opportunity for the 2 sides to get together and take and honest, hard look at the case and work toward its final resolution.

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October 19, 2009

Michigan Probation Violations - The Short Version

As part of my Blog-wide effort to publish a "Sort Version" of my various longer articles, this entry will tackle the matter of Probation Violations. In an earlier Blog Post entitled "Probation Violations - Staying out of Jail," we examined, in considerable detail, what happens when someone who is on Probation is charged with a Violation of its terms.

As a Criminal Defense Lawyer, I limit my Practice to Macomb, Oakland and Wayne Counties. Thus, the information related in this Blog comes from my handling cases day-in and day-out in the local, Tri-County Courts.

angry judge.jpgAlmost every Probation Violation comes about because the person on Probation is accused of either not doing something the Judge ordered them to do, or they did something they weren't supposed to, like picking up a new charge or testing positive for drugs.

When the Probation Department "violates" a Probationer, the Court is told what the person either did or did not do which gives rise to the violation. There is an Arraignment, at which the Defendant should plead "Not Guilty," and a Bond is set. The Arraignment is followed by the actual Probation Violation Hearing, which by law must be scheduled within 14 days from the date of the Arraignment.

On the Hearing date, the Defendant and his or her Lawyer appear in Court and go before the Judge. In some Courts, the Defense Lawyer will meet with the Probation Officer before going in the Courtroom, in an attempt to see if some kind of agreement, kind of like a Plea-Bargain, can be worked out. In other Courts, both sides simply stand before the Judge. The Defendant has the right to a full-blown hearing, but the standard rules in Criminal Cases do not apply. Hearsay evidence is allowed. The Probation Department must simply convince the Judge, by what's called a "Preponderance of the Evidence," (simply put, that it's more likely than not, or 50.0001% "Yes" to 49.9999% "No") that the Probationer either did something he or she was not supposed to, or didn't do something they were ordered by the Judge to do.

Most cases don't go this far. Usually, the person being Violated pretty clearly did something they weren't supposed to, or didn't do something they were ordered to do. Thus, most cases are resolved by a Plea of Guilty to the Violation. It's at this point that the Lawyer's ingenuity, persuasiveness and skill come into play.

The Defense Lawyer's job is to convince the Judge to NOT put the client in Jail. This means being able to present viable alternatives (like tether) to simply pounding a non-compliant Defendant with some time in the "Pokey."

The last thing a Judge wants to hear from someone who has already messed up is "I'm sorry" or "It won't happened again." From the Judge's point of view, we've "been there, done that."

Instead, the Judge needs to hear that no matter what did or didn't happen, it was not out of a lack of respect for the Court or a disregard of its orders, but rather because of a regrettable lapse in judgment. A Lawyer handling a Probation Violation better be charismatic, dynamic, know the Court, and be convincing enough to sell air conditioners to Eskimos. To find that Lawyer, a person needs to do some shopping around. Anyone who sounds as subdued as an Undertaker is probably not the person for this kind of job, nor is someone who doesn't know the Judge very well. A Probation Violation Hearing is the last place for a Lawyer to first meet the Judge (who is already impatient with the Defendant) for the first time.

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October 16, 2009

Michigan DUI - The Short Version

In this article, we'll look at the most common DUI, or Drunk Driving charges in Michigan. This is the third in a series of "Short Version" articles taken from a longer, prior Blog post. We'll examine the most common terms used when discussing Drunk Driving in Michigan. As a DUI Lawyer, I am often asked about the "alphabet soup" of terms that surround this group of Charges. Let's get right to it:

OWI is the actual name for DUI or Drunk Driving in Michigan. It means Operating While Intoxicated. This offense carries 6 points, a mandatory 6-month suspension of the Driver's License (with a restricted license that is granted after the first 30 days of no driving), and carries fine of up to $500, plus Court Costs. This usually means a person will be paying somewhere between $700 to $1500 in total fines and costs, depending on which Court is handling the case.

alcohol-422270.jpgOWVI, or Impaired Driving, is the term for the less-severe form of Drunk Driving or Operating Under the Influence of Drugs (OUID), which is discussed below. This charge carries 4 points, a 90 day restriction of the Driver's License, a fine of up to $300, plus Court Costs. As the Lawyer representing a person charged with OWI, I will, if the case against them is "solid," negotiate, a "Plea Bargain" from OWI (or OUID) to the less-severe charge of Impaired Driving. The total final amount a Driver will pay to the Court ranges from between $600 to $1100, again, depending on where the case is being heard.

OUID, or Operating Under the Influence of Drugs, is just like OWI, except that instead of being under the influence of Alcohol, the Driver is under the influence of Drugs. The less-severe form of this charge is the very same OWVI, or Impaired Driving that is examined above.

OWPD stands for Operating While In the Presence of Drugs. Cases brought under this law are, fortunately, not so common. What it means is that if a Driver tests positive for Drugs in their system, then they are "OWPD." There is no need to prove that they were under the influence of those drugs. For example, a person who tests positive for marijuana, and who used it 3 weeks before that test, although clearly no longer under its influence, can be charged with OWPD merely because of that positive test result.

Of course, the consequences for any of these Offenses ramps up dramatically if it is charged as a 2nd or 3rd Offense. Generally speaking, 3rd Offenses are Felonies.

OUIL, UBAL and UBAC are all terms that are no longer part of Michigan law (UBAC never was).

DUI is a general term used to describe Drunk Driving, even though there is no law entitled or addressing "DUI" in Michigan. The term is means "Driving under the Influence," although as you can see even from the brief description of Michigan's laws as outlined above, one might be tempted to ask "driving under the influence of what?" Michigan law makes very clear whether the Charge involves Alcohol, and if so, whether the Driver was "drunk" or merely "impaired," or if the charge instead refers to being under the influence of, or being impaired by the use of Drugs.

A more thorough review of the potential penalties a Driver faces in any of these charges is laid out in the "Common Charges and Penalties" page of my website.

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October 14, 2009

About this Blog: The Free Consultation, and Who we Can and Cannot help

In a departure from my usual instructional-style Blog post, I feel compelled to address an issue that is quite literally causing my phone to ring off the hook. While I am both somewhat surprised and extremely pleased with the unexpectedly large response to and readership of this Blog, my staff has been inundated with phone calls from around the Country seeking all kinds of advice and citing the "free consultation" notation on both my Blog and Website. Sometimes the caller may be in Michigan, but asks about a case pending somewhere I do not go. Other times, the caller may want to ask questions about an area of law that I do not handle.

I wish I could help, or at least give some worthwhile direction to everyone who needs a little information, but my office simply cannot help in matters that fall outside the scope of what I do and where I do it. My experience and Practice is limited to handling Michigan cases. Even then, I limit my Practice (and thus my advice) to the Metropolitan Detroit and outlying areas for everything except License Restoration matters.

phone-illustration-ringing-off-the-hook.jpgA recent caller from Connecticut wanted to ask about his Foreclosure and Re-Financing options. I have no idea how Foreclosures and Re-Financing are done outside of Michigan, and am in no position to even begin to advise or direct anyone from a different state, beyond telling them to contact an Attorney there who handles the kind of matter for which they need advice.

Another caller wanted to know what he should do about a recent Traffic Ticket. It turns out that he was calling from another state about a ticket he received in that state. Again, I have no clue about how things are properly handled in any state other than Michigan, and even here, my Practice is more or less limited to the Metro-Detroit. Throughout the articles on this Blog, I often use the terms "Macomb, Oakland and Wayne Counties," "Tri-County area," "Metro-Detroit area" or "Metropolitan-Detroit area." I'll define exactly what that means below.

Let me clarify specifically what help I can provide beyond the general information to our (apparently) growing readership that's in this Blog:

1. Michigan Driver's License Matters: Anything that requires either a Restoration or Clearance of a Michigan Driver's License, no matter where the person lives. In other words, if you need help with a Michigan License, it doesn't matter where you live, whether in, or even outside of, Michigan itself.

2. Michigan Criminal, Drunk Driving and Traffic Ticket Cases: I handle Criminal, Drunk Driving, and Traffic Ticket Cases that are brought or are pending in any Court in Macomb County and any Court in Oakland County.

In Wayne County, I'll only handle cases which are brought in the following District Courts:

16th (Livonia)
18th (Westland)
19th (Dearborn)
20th (Dearborn Heights)
27th (Wyandotte)
31st (Hamtramck)
32A (Harper Woods)
34th (Romulus)
36th (Detroit), and
All Grosse Pointe Municipal Courts.

This includes, of course, Felonies that are or will be heard in the Wayne County Circuit Court.

I will also handle Criminal and Drunk Driving Cases in the 72nd District Court in Marine City.

Given that I base my advice and answers upon experience, and because my experience is primarily in Macomb, Oakland and those limited parts of Wayne Counties, I am unable and unwilling to advise or direct someone with a case outside of those geographic areas to do anything other than contact an experienced Lawyer who would be considered "local" there.

3. Michigan Bankruptcy Cases: My office files Bankruptcy for people who live in Macomb, Oakland, Wayne, St. Clair and Sanilac Counties. Anyone who lives in one of those Counties will have their case heard in Detroit. If you do not live in one of these Counties, then your case will not be heard in Detroit, and I only handle cases that are heard in Detroit. Because different locations can operate a bit differently, I do not advise anyone whose case would be heard outside of the area where I practice. Those individuals should contact a "local" Attorney.

There are no words to express how gratified I am that anyone finds anything I say to be worthwhile. Nevertheless, I have tried to be clear in my various Blog posts, as well as on my site, about the geographic scope of my experience and Practice. I think one of the reasons I can be as detailed as I am is precisely because I limit what I do and where I do it. I have pointed out that part of the very experience I sell is the knowledge one gains from doing something again and again in the same places and with the same people.

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October 9, 2009

Keeping a Criminal Charge off your Record in Michigan for those under 21 Years of age - The Short Version

This is the second in a series of "Short Version" posts which summarizes the main points of a much larger, prior Blog post. In this article, we'll boil down the essentials of HYTA, which is a tool that I use, as Criminal Defense Attorney who practices in the Detroit-area, to keep a Criminal Charge and Conviction off of a person's record if the Offense occurred before their 21st birthday.

The Holmes Youthful Trainee Act (HYTA) allows a person who commits a Criminal Offense after their 17th, but prior to their 21st birthday, to keep the whole thing off their Record if their Lawyer can get the Court to agree to handle the case that way. The key thing here is that HYTA is discretionary, meaning that the decision whether to allow it or not is completely up to the Judge.

Handcuffs.jpgA person must first qualify for HYTA before a Judge can even consider granting it or not. In order to qualify, the Offense must occur before the person's 21st birthday. This is an important point, because sometimes a person can be close to their 21st birthday when an Offense occurs, but not be actually charged with it until after their birthday. Since the Court only looks to the date the Offense was committed, even a person who has long since turned 21 is still eligible for HYTA, as long as the Offense occurred before that birthday.

Beyond the issue of the person's age, there are a number of Offenses which cannot be kept off a person's record under HYTA. The most significant of these are what are known as "Capital Offenses," meaning crimes like 1st Degree Murder, which carries a penalty of up to life in prison. Likewise, certain Criminal Sexual Conduct charges, and Major Controlled Substance Offenses cannot be kept off a person's record (the technical term is "Deferred") under HYTA. Also, Traffic Offenses (like DUI and Driving While License Suspended) cannot be handled under HYTA.

Usually, if I'm representing someone who otherwise qualifies, I will seek to have the Prosecutor agree to handle the case under HYTA, even though the final decision is the Judge's alone. Even so, if the Prosecutor can be persuaded to agree to handle a case under HYTA, it goes a long way toward persuading the Court to go along, as well. While it's helpful to have the Prosecutor agree, their lack of cooperation is not fatal to the chances of having a case kept off a person's record under HYTA. I have handled cases where the Prosecutor has either not agreed to go along, but has not openly objected to HYTA, and where the Prosecutor has outright placed their objection to a HYTA deferral on the record, and have still been able to persuade the Judge to go along, anyway.

Once the Court agrees to HYTA, the person charged with the crime (the Defendant) must satisfactorily complete Probation. If they Violate Probation, one of the first things that can happen is that the Judge can "revoke" their HYTA status, and the Criminal charge and conviction wind up on their record. Of course, when a person faces a Probation Violation, beyond trying to keep their HYTA status intact, a Lawyer also tries to keep them out of Jail.

The best thing about HYTA is that absolutely nothing winds up on the Defendant's record. Even if the person were to have fought the case at Trial and won, the original charge and subsequent acquittal would still show up on their record. In every sense of the word, HYTA is an opportunity to have a truly "clean" record.

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October 7, 2009

DWLS and DWLR in Michigan - The Short Version

This Post will deal with the common offense of Driving While License Suspended (DWLS) and Driving While License Revoked (DWLR). A full explanation of these charges, their consequences and how they're handled in Court can be read in Part 1 and Part 2 of a previous Blog post. Believe me, as a Criminal Defense Lawyer, it's hard for me to reduce a rather complex subject to a few short paragraphs, but in the interests of brevity and everyone's patience, here goes:

These two offenses violate the very same law. They carry the same potential punishment, which is up to 93 days in Jail, a fine of up to $500 (plus Court costs) for a 1st offense, and up to 1 year in Jail and a fine of up to $1000 (plus Court costs) for a 2nd offense. Beyond adding 2 Points to a Driver's record, a conviction for DWLS or DWLR also requires a Mandatory Additional License Suspension or Revocation, meaning that the Driver's License will be Suspended (or Revoked) for an additional period of time just for driving while it was already Suspended or Revoked. Moreover, anyone convicted of either of these offenses will have to pay a Driver Responsibility Fee.

a2traffictickets.jpgThe charge of DWLS arises because someone has had their License Suspended for any of a variety of reasons. Usually, they either have unpaid Traffic Tickets or have outstanding Driver Responsibility Fees owing to the Secretary of State. Many Drivers are unaware that even if they owe the SOS money, they can enter into a payment plan that goes for up to 2 years to pay these fees off.

Most Drivers charges with DWLR have had their License taken away due to 2 or more prior DUI or Substance-Abuse related convictions. These Drivers cannot simply have their License "reinstated," but must apply for a License Restoration once they are eligible for such a hearing.

Typically, a person hires a Lawyer for one of these charges to keep them out of Jail and avoid any additional and further term of License Suspension or Revocation.

If someone is facing either of these charges, and the case against them is "solid," I try and negotiate a Plea Bargain which, beyond keeping them out of Jail, will reduce the charge to something called a "No Ops," or "Failure to Produce a Valid License." This offense does not carry any Points, nor does it result in any Mandatory Additional Suspension of the Driver's License. On top of that, there are no Driver Responsibility Fees assessed for a "No Ops.". It really is a "bargain" in every sense of the word.

Working out such a bargain depends, more than anything, on the Driver's prior record and the City (or Township) where the offense occurred. As a Lawyer who limits his practice to the Metro-Detroit area, I can usually give a Driver who has been charged with one of these offenses in the Detroit area a pretty good idea of what the likely outcome of his or her case will be after just a few questions.

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October 5, 2009

Pre-Trial in a Typical Michigan Misdemeanor Case - Part 2

In Part 1 of this article, we began examining the Pre-trial process, and what's involved. In this second part of the article, about Pre-Trials, we'll take a closer look at how the Prosecutor and the Defense Attorney negotiate at a Pre-Trial, and what happens when those negotiations are successful at producing some kind of deal, as well as what happens when they are not.

As we embark on the second part of this article, remember that we were using, in the first part, an example wherein a guy was arrested for Drunk Driving (really OWI, although pretty much everyone uses the term "DUI") and he had already been Arraigned, hired a Lawyer, and checked into Court on the date of his Pre-Trial (remember, back in Part 1 of this article we decided that we would speak of "Pre-Trial Conferences" as simply "Pre-Trials"). His Lawyer has gone into a conference room in the Court to meet with the Prosecutor, and after having reviewed all of the Prosecutor's evidence, is ready to start discussing the case and negotiating with the Prosecutor. We'll pick up there.

ContractNegotiations.jpgIn our Drunk Driving (DUI) example, the Prosecutor may look to the Defense Lawyer and point out that the Defendant was caught on Police-car video swerving all over the road, and that based upon all of the evidence the case looks "airtight." In response, the Defense Lawyer may admit as much, but will point out that the Defendant was very cooperative with the Police Officer, and that his Bodily Alcohol Content (BAC) was not very high. Then the Defense Attorney may then simply ask the Prosecutor if he or she will agree to reduce the charge from OWI (Operating while Intoxicated) to OWVI (Operating While Visibly Impaired). This reduction in the severity of the offense to which the Defendant pleads, from the more serious one with which he was originally charged, to one less severe, is called a "Plea Bargain." Even though, from the Prosecutor's point of view, the case looks "airtight," unless the Defendant just rolls over and Pleads guilty, the matter will still have to go through a Trial.

This is where, no matter how "airtight" the Prosecutor's case appears to be, the Defense Lawyer has some leverage. Even a relatively simple and straightforward case eats up a lot of time if it is decided at Trial. By agreeing to reduce the Charge and agreeing to a Plea Bargain, the Prosecutor avoids getting caught up in a log-jam of cases. Sure, the Prosecutor would like to have everyone come in and Plead guilty-as-charged, and the Defense Lawyer would like to walk into Court and have every case against everyone of his or her Clients dismissed outright, but that almost never happens. The majority of Criminal Cases, like the sale of houses, are finalized through compromise and negotiation. Each party has to give up a little of what they want in order to facilitate a deal.

At this point, the discussion between the Prosecutor and the Defense Lawyer are squarely within the scope of what is meant when the term "Pre-Trial" is used. Of course, in our DUI example, the Prosecutor may (and, absent anything unusual, like a prior DUI conviction, usually will) agree to the Plea Bargain, or they may not. Let's continue and see what happens in either situation.

Continue reading "Pre-Trial in a Typical Michigan Misdemeanor Case - Part 2" »

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October 2, 2009

Pre-Trial in a Typical Michigan Misdemeanor Case - Part 1

In Part 1 and Part 2 of a previous Blog Post, we examined the very first proceeding in a Criminal case, known as the Arraignment. This article will deal with the next step in all Misdemeanor cases, called the "Pre-Trial." In particular, we'll be talking about what's known as a "Pre-Trial Conference." Because there is a lot of ground to cover, we'll split this discussion of Misdemeanor Pre-Trials into 2 parts. In a future post, we'll explore Felony Pre-Trials. Although a Pre-Trial is substantially similar in both Felony and Misdemeanor cases, there are enough differences between them to merit dealing with each in a separate article.

We can learn a little about the purpose and meaning of a Pre-Trial just by looking at its name. Technically speaking, there are two kinds of Pre-Trials. The first, both in terms of occurrence and how we'll examine them, is called a "Pre-Trial Conference." This is mostly what we'll be discussing in both parts of this article. The second, which takes place second, if at all, are called "Pre-Trial Proceedings." "Pre-Trial Conferences" always occur in a Criminal Case. "Pre-Trial Proceedings" frequently do not happen in a Criminal Case. We'll explore that term in the second part of this article, but the focus of our discussion and examination in both parts of this article will be on the Pre-Trial Conference, which, throughout this article, we'll mostly and simply be calling the "Pre-Trial."

negotiating.jpgThe most important word here is "pre." "Pre-Trial" means "before trial." This means that before a case actually goes to Trial, there is at least a Pre-Trial Conference. The whole point of this Conference is to determine if there is a way to work out or resolve the case without the need for an actual trial.

What actually takes place at a Pre-Trial Conference has little to do with any kind of Court hearing. The main purpose of the Pre-Trial is to bring the Prosecutor and the Defense Attorney together so that they may discuss the case and see if they can come to an agreement to resolve it without the need to have the case decided through a trial. This can perhaps be better understood by looking at an example.

Let's say a person has been Arrested and Charged with a DUI. In Michigan, the actual charge is OWI, or Operating While Intoxicated. For our purposes, we'll skip over the details of the Stop and the Arrest, and assume the Evidence against the Driver (the Defendant) is rock-solid.

Continue reading "Pre-Trial in a Typical Michigan Misdemeanor Case - Part 1" »

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