December 2009 Archives

December 30, 2009

Possession of Marijuana 2nd Offense in Michigan

As common as Marijuana Crimes are in Michigan, it's not surprising that more than a few of them are for 2nd Offenses. I was recently asked, in my role as Criminal Defense Lawyer, about the penalties for a Second Offense Possession of Marijuana. And the answer to that question is not as clear as one might first think.

In an earlier Blog Post, we learned that Marijuana Possession can be charged as either a violation of a Local Ordinance, or a violation of State Law. Most local municipalities have a Marijuana Ordinance, and under their terms, Possession of Marijuana is designated as a Misdemeanor, punishable by no more than 93 days in Jail (and, as pointed out in that article, any Jail time, at least in a 1st Offense, is extremely unlikely) and a fine of up to $500 plus Court Costs. In addition, there are Mandatory Driver's License Sanctions (6 months Suspension of License; a Restricted License for the remaining 5 months may be granted by the Judge handling the case, after the first 30 days of the Suspension have passed) which must be imposed upon conviction.

smoking_joint.jpgPossession of Marijuana is also a Misdemeanor under State Law, but it is punishable by up to 1 year in Jail, and a fine of up to $2000. In addition, State Law violations also require the same mandatory Driver's License Sanctions.

Those are 1st Offense penalties. For a 2nd Offense, things can either take a turn for the worse, or not. If you think that's a curious observation, you're right. The truth of the matter is that what happens to anyone who is busted a 2nd (or even 3rd) time for Marijuana is really a matter of luck. If a person has already been convicted of Possession of Marijuana, and is then charged a 2nd time under State Law, the penalty rises to double that of a first State Law violation. This means a person can be charged with a Felony, punishable by up to 2 years in Jail, a fine of up to $4000, and even more severe License Sanctions (1 year Mandatory License Suspension, with no driving whatsoever for the first 2 months; The Judge handling the case may allow a Restricted License for the remaining 10 months, after the first 60 day Suspension has passed) than those that accompany a 1st Offense.

Even if a person has been convicted of Possession of Marijuana once before, and they are subsequently charged under a Local Ordinance, then there is no "Double Penalty" of any kind. That's why I noted above that whether a case goes one way or another is more a matter of luck than anything else.

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December 28, 2009

About this Blog - The Scope and Meaning of "Free Consultation"

It seems that the term "Free Consultation" is often misinterpreted as "Free Advice" or "Free Answers." To put this in perspective, let's talk about those Plastic Surgeons who do face lifts, certain enhancements, and other "nip and tuck" procedures. Often, they will advertise on the Radio or in the Phone book, and offer a "Free Consultation." It is clearly understood that they will spend the time with someone looking to perhaps use their services in order to assess what, if anything, they can do for that person.

No one would think to call them, set up an appointment, go in, and say "I don't have any money for a face lift, but I was wondering what you thought about these over-the-counter skin-firming products?" In the same way, who would go into a car dealership, pull into the service area, and meet with a mechanic to describe a "funny sound" their car was making, then tell they guy "I don't have the money to have you fix it, but if you'll tell me what to do, I am going to try it myself."

hour-glass.jpgYet amongst those who e-mail us everyday, we get any number of those who either outright tell us they don't have any money for a Lawyer, or whose e-mail is obviously seeking advice and direction with no intention of hiring me to do the work. I have tried, until now, to at least provide some help to those who ask for it, but the pressures of economic survival and the limitations of my own time, multiplied by the sheer number of such e-mails and calls, requires me to write this article explaining why I can no longer take the time away from paying Clients to advise those are not, and will not become, paying Clients.

The success of this Blog has been wonderful. I have tried, within the articles I write, to be as explanatory and helpful as possible, and, to be honest, I have yet to run across anything even remotely close to the information-loaded site I have put up. The payoff has been that any number of potential Clients find that I am more informative than any other Lawyer they have encountered. In the end, after a "consultation," they retain my services. This is how I pay for the employees, their benefits, the utilities and this Blog.

In addition to simply putting up a lot of information, I have repeatedly pointed out that my Criminal Practice (with the exception of Driver's License Restoration Cases) is limited to Macomb, Oakland, and Wayne Counties. Even those willing to hire me outside the Metro-Detroit area should know that I do not handle cases anywhere outside of the Tri-County area, with the possible, and limited exception of certain cases in St. Clair, Lapeer, and Livingston Counties. Of Course, I can handle License Restoration cases that have anything to do with the State of Michigan, because I am able to schedule all Hearings in the Secretary of State's Driver Assessment and Appeal Division's Livonia Office. I likewise handle Bankruptcy Matters from Macomb, Oakland, Wayne, St. Clair and Sanilac Counties because all those cases are heard in the Bankruptcy Court in Detroit.

So my purpose in writing this article is so that I have something to attach as a reply to those inquiries which are not seeking a "Consultation," but rather have a question or questions, or otherwise seek some direction in a Case which I will not be getting hired to handle, or to those asking about a case pending outside of the Tri-County area

A little math may help. Say we get 4 or 5 such "free" inquiries per day. And say I spend about 10 to 15 minutes reading, thinking about and responding to each. That totals nearly a little more than an hour a day, and over the course of a week, another 6+ hours of work for which I am not paid. Think of it this way; if your boss asked you to stick around for an extra hour everyday after work to just help out non-customers, and told you that you wouldn't be getting paid to do it, how quickly would you sign up for that program? You do, after all, want to go home, spend time with your family, and maybe help out with homework or whatever else your job as a parent requires.

Of course, my "Consultations" are still free, but the term "Consultation" needs to be understood in terms of an exchange of information to see if my services and someone's legal needs are a good match, and if those services will be retained in order to benefit the person and help their Legal situation.

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December 23, 2009

Fraudulent Prescriptions in Michigan - Part of the Pill Problem

In an earlier article on this Blog, I noted that there is a definite increase, at least in my Criminal Practice, in the number of cases involving prescription medication, and particularly in those involving Vicodin and Oxycontin. These drugs have, in recent years, become part of the menu of drugs used recreationally. In years past, it was more common to find someone with a residual habit caused by having to legitimately take these drugs for a real medical condition. In those cases, the reliance on the drugs continues after whatever condition for which they were originally prescribed has cleared up. Pretty much every celebrity in the papers reported going to rehab claims to have a problem with prescription painkillers as a result of some injury.

While the number of Possession of Analogue cases has skyrocketed, the number of cases arising from the act of getting, or trying to get these drugs, has also soared. Perhaps the most common charge is what is known as a Fraudulent Prescription charge. This can involve anything from trying to call in a phony prescription, pretending to be from a Doctor's office, to using stolen prescription pads, or just being the person who appears at the pharmacy to pick up a script.

drugshot.JPGBefore we look at the legal implications of such a charge, let's look at some of the common telltale signs seen by pharmacy employees as they detect these kinds of fraud.

It goes without saying that there are certain drugs which raise suspicion far more than others. People don't get high on anti-biotics, so a phone call, supposedly from a Doctor's office, for a 7 day supply of an antibiotic is far less likely to arouse any curiosity than a phone call for a large supply of Vicodin.

I recently spoke with a Doctor who told me of a case where a local pharmacy had called him to verify a prescription in his name for 100 Vicodin. The Doctor confirmed the pharmacy's suspicion when he indicated that even in the most serious of injuries, he would never prescribe more than 60 at any time. The pharmacy thought the number was unusual, and the phone call confirmed that. The same Doctor told me how his prescription pads, with his DEA number on it, has been duplicated and stolen countless times, despite all the precautions he takes to safeguard against that.

Legally speaking, it is not uncommon for someone arrested for Fraudulent Prescriptions to subsequently be found to have been engaging in the practice for some time. In other words, once the Police start looking into the State database (formally known as Michigan's Prescription Drug Monitoring Program, and it's tracking mechanism, called MAPS) where all prescriptions are archived, they often find a person has been prescribed an unusually large amount of these drugs, sometimes from the same Doctor's office to different pharmacies, other times from supposedly different sources to an even larger number of pharmacies. By the time many people resort to using phony scripts to obtain these drugs, they have developed a serious dependence on them.

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December 21, 2009

On Probation in Michigan - Too Many Conditions to Handle

The issue of Probation Violations has been coming up more frequently in my Practice as a Metro-Detroit Criminal Defense Lawyer. Sometimes the person Violated is unable to attend all the counseling that was ordered as part of the their sentence, or provide all the urine samples required under the terms of the drug testing ordered by the Judge. Often, the person's problem has more to do with not having enough money to keep paying and paying for what seems like endless testing and classes rather than an unwillingness to comply with the Court's Orders.

A test is missed, or a class is skipped, and the person is told that they are being "Violated" and must re-appear before their Judge. Not good news. To make matters worse, the person is in need of a good Lawyer, but if a lack of money is the underlying problem, they realize that calling around to hire a Lawyer without money is like going to the Grocery store, having all your food rung up, and then asking to make payment arrangements. Perhaps reluctantly, some of these people ask for a Court-Appointed Lawyer figuring something is better than nothing. Others will find a way to scratch up enough cash to hire a Lawyer of their own choosing.

angry judge.jpgThen, on the day of the Probation Violation Hearing, the person is finally asked to admit or deny that they missed a test or test, or a class or classes. Usually, they admit the miss or misses, and seek to have their Lawyer convince the Judge to not just lock them up.

That's done, of course, by trying to explain to the Judge that any miss or misses were truly because of a lack of money, or a real threat of losing their job, and not some disregard of the Court's Probation Order. And it's at this point where the person is walking a very fine line between sympathy and impatience, at least from the Court's point of view. Let's face it, times are tough, and a lot more so here, in Michigan, than anywhere else. People are cash-strapped, and there just isn't enough money to go around. Those lucky enough to have a job need and want to keep it.

When someone is standing in front of a Judge to be Sentenced in a Criminal Case, they are pretty much worried about 1 thing; not going to Jail. No matter what else the Judge Orders, most people feel pretty good when they know they can walk out the front door of the Court, rather than being taken away through the back. Whether testing has been ordered once a month, once a week, or even 3 times per week, human nature leads people to believe they'll figure out a way to do whatever the Judge requires, despite perhaps already knowing that money is a problem.

Then, when the person is back home, settled into a routine, and there's just no money to go to testing or classes, they skip. When they feel they'll lose their job if they keep showing up late, or missing days, because they need to test, they skip. We know the rest of the story from there. So, how does the Court see these Violations?

Continue reading "On Probation in Michigan - Too Many Conditions to Handle " »

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December 18, 2009

Michigan - Picking up a new Offense While on Probation for another

I doubt anyone I represent in Court has any intention of ever getting arrested again. As a Criminal Defense Lawyer for nearly 20 years, I can honestly say that I've heard the "it won't happed again" story thousands upon thousands of times. At the end of the day, however, a larger-than-you-might-expect number of Cases that I handle involve someone who is on Probation for one Offense getting arrested and charged with a new Offense.

And of course, they're afraid. In some cases, "freaking out" may be a more applicable term. Let's try to ease some of that apprehension by taking a look at what's really going on when this happens.

jail tour 002.jpgFor starters, unless the new Offense involves some kind of Peace March, things are not going to be particularly good with the Judge to whom the person is on Probation. Generally speaking, any new criminal activity triggers a Probation Violation. It is beyond the scope of this article to define what does and doesn't constitute a Violation. On both my web site, and in another Blog article, I discuss Probation Violations in considerable detail. For our purposes, we'll assume the person arrested again is going to have to accept some kind of Plea deal on the new Case, thus guaranteeing a Violation on the old Case.

Okay, so when they call they're nervous. Often, however, I find that a person's concern is misplaced. In other words, while many individuals with whom I speak first express concern over what will happen in the new Case, it falls upon me to explain that the real cause for concern is with the old Case.

The plain fact of the matter is that Judges spend all day dealing with people who have prior Records. They're inclined to give a fresh look to someone who's new to them, unless of course the person has such a long prior Record that it begins to define who they are (think habitual offender...).

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December 16, 2009

Michigan DUI 2nd Offense and Driver's Licenses - Can't I just go to Court to get some kind of Restricted License?

As a Practicing Criminal, DUI and Driver's License Restoration Lawyer, I explain something about this area of the law, to at least someone, pretty much everyday. In this Blog, I have tried to address questions that I hear again and again, and this article will focus on one of those. Anyone facing a 2nd DUI within 7 years will eventually learn that there is a Mandatory License Revocation, meaning that their License will be completely taken away for at least 1 year. Concerned about their ability to work, or go to school, or go to the Doctor's, they ask:

"Can't I just go to Court to get some kind of Restricted License?"

MSP2.jpgAcross the board, the answer is "No."

Prior to 1998, the Court hearing a DUI Case had to impose the Licensing Sanctions on the Driver. Different cases, and different Courts produced often very different results in similar circumstances.

In 1998, Michigan overhauled its Drunk Driving Laws. That overhaul came to be known as the "Habitual Offender" legislation. Among the sweeping changes to the DUI laws in Michigan was the transfer of authority over all DUI Licensing Sanctions away from the Courts, and directly to the Secretary of State. After the laws went into effect, it was no longer possible for a Judge hearing a DUI to make ANY decisions whatsoever about the Driver's License.

Moreover, the new law provided fixed, Mandatory Penalties for every kind of DUI (and Operating Under the Influence of Drugs) case. A 2nd Offense DUI within 7 years of the 1st results in a Mandatory 1 year License Revocation. A 3rd Offense within any 10 year period carries a Mandatory Revocation for at least 5 years. Interestingly, most people facing a 3rd DUI within 10 years are already painfully aware that their License will be yanked for a long time. They're more concerned about "when" rather than "if."

Let's look at an example: Prior to the Habitual Offender laws, if a person got a 2nd DUI within 7 years, but had the charge plea-bargained down to a 1st offense, the Judge could issue a Restricted License after 60 days of full suspension. After the Habitual Offender laws took effect, however, the Courts no longer had any power over a Driver's License. Beyond stripping the Courts of authority over a DUI Driver's License and rather than take into account what Plea Deals a person had made, the transfer of that power to the Secretary of State simply required it to count the total number of Alcohol-Related offenses a person had accumulated over a period of 7 or 10 years.

Continue reading "Michigan DUI 2nd Offense and Driver's Licenses - Can't I just go to Court to get some kind of Restricted License?" »

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December 14, 2009

Driving on a Suspended License in Michigan - The First Thing you Should do

As a Criminal Defense Lawyer who Practices exclusively in the Metro-Detroit area, I handle loads of Driving on a Suspended License (DWLS) Cases. In my attempt to use this Blog to answer some of the more common questions I hear, let's address a question that is not often, but should always be asked by someone looking to hire a Lawyer to help them with one of these cases. That question is (or at least should be) "What should I do first?"

And the answer is pretty simple. For a good many people, perhaps even most of those charged with DWLS, the reason their License was suspended in the first place is either due to an unpaid, outstanding Traffic Ticket or Tickets, or their failure to pay an outstanding Driver Responsibility Fee to the Secretary of State. In either case, the first thing a person should do after being arrested for DWLS is to clear up the outstanding matter or matters. This means that if there is an unpaid ticket, or tickets, they should be paid. If there is an outstanding Driver Responsibility Fee, it should either be paid off, or arrangements made with the State for a payment plan, which can now spread the outstanding balance over a period of 24 months.

Judge.jpgAs a Lawyer for someone charged with a DWLS, the first thing I think about is trying to keep the DWLS completely off of their record. DWLS carries some consequences which, to be honest, are rather harsh. First, a person will receive a "Mandatory Additional Suspension," meaning their License will be suspended for an even longer period of time. Second, DWLS carries a mandatory Driver Responsibility Fee of $500 for two consecutive years. Also, and on top of a potential (but usually unlikely) Jail sentence, and additional fines and costs, a DWLS conviction carries 2 Points on a person's Driving Record.

When I represent someone who has been charged with DWLS, if I can show the Prosecutor that the person has paid their outstanding tickets, or scheduled them for Court dates, or paid their outstanding Driver Responsibility Fees or otherwise arranged a payment plan, I can usually get the Prosecutor to agree to reduce the DWLS charge to one that carries no "Mandatory Additional Suspension," no Driver Responsibility Fees, and no Points. Most often, this plea deal allows the DWLS to be dismissed and the person will instead Plead guilty to "No Ops," which means No Valid Operator's License on Person. Although "No Ops" is still technically a crime, I have never, in nearly 20 years of doing this, even heard of a person getting any jail time for it.

Bottom line: If someone calls me, the first thing I'm going to talk to them about is clearing up their outstanding matters. Even if a person cannot afford to do it all at once, a Defense Lawyer will know how to buy time so that the person can get enough accomplished to make a "No Ops" deal a reality. If you're facing a DWLS charge, the first thing you should do is fix whatever got your License suspended in the first place, or at least start fixing it, if it cannot all be done at once..

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December 11, 2009

Domestic Violence in the Tri-County area - Getting the Victim to Show up in Court

In my last post, entitled "Domestic Violence in the Metro-Detroit area - Someone is Going to Jail," we confirmed the general belief that when the Police are called to the scene of a Domestic Dispute, someone is almost always going to go to Jail. In this article, we'll look at another question I am often asked in my role as a Criminal Defense Lawyer. That question is usually along the lines of "What happens if the alleged Victim doesn't show up to Court?"

Most often, when the Police arrive after a Domestic Violence call, they take several witness statements. The most important of those is usually the Victim's statement. More often than not, the Police will ask the alleged Victim to write down what happened. Other times, there might be an independent witness who was present at the scene. They'll be asked to write out a statement detailing what they witnessed, as well. Sometimes the person ultimately arrested will be asked to write out a statement, or answer some Police questions. Alcohol is often, although not always a factor when these situations develop. Whatever the circumstances, the person being blamed would be well advised to remember their Right to remain Silent...in other words, to keep their mouth shut.

WitnessStand2.jpgWhen one of these cases winds up in Court, as I pointed out in a previous article, there is essentially zero chance that the Prosecutor will just "drop" the charges. Assuming the person arrested has no prior Domestic Violence convictions, and also assuming that the case is not the kind that can be won at trial, there is almost always the possibility of working out a Plea Deal that will still keep the whole case off the person's Record.

Sometimes, though, there is a question about whether or not the alleged Victim will show up in Court. To put it bluntly, I have been asked any number of times by the person facing the charge something like "What happens if she doesn't show up to Court?"

And the answer is that, in the long run, and if there are no other independent witnesses, the case will most likely be dismissed.

In saying that, though, we leave out a whole bunch of factors that make the likelihood of the alleged Victim not showing up relatively remote. The first Proceeding after an Arraignment on a Domestic Violence charge is called a Pre-Trial. It is at this stage that the Defense Lawyer and the Prosecutor meet to determine if a resolution to the case can be had without going to Trial. This is when, in most cases, that deal to keep the whole thing off a person's record is worked out. The Defendant must attend the Pre-Trial. If they don't, then a Bench Warrant is issued for their arrest.

Continue reading "Domestic Violence in the Tri-County area - Getting the Victim to Show up in Court" »

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December 9, 2009

Domestic Violence in the Metro-Detroit area - Someone is Going to Jail

As a Lawyer who has handled Criminal Cases in the Courts of Macomb, Oakland and Wayne Counties for nearly 2 decades, I find myself answering some of the same questions again and again. It has been my goal, on this Blog, to repeat those questions and answers which seem to be common, if not popular. In a previous post, we've examined the futility of "Dropping the Charges" in Domestic Violence Cases. Another, often asked-about aspect of Domestic Violence Cases has to do with the basis, or reason(s) for a person's arrest.

The question, as I typically hear it, sounds either like "How can they arrest me?" or "How can they charge me...?" Often, the person to whom I'm talking questions the evidence against them, or wants to point out that the only evidence was one person's word against another's. They feel there was no basis for their arrest.

man_being_arrested18jan08.jpgThere is a saying to the effect that, when the Police come, someone is leaving with them. Granted, I don't really have any contact with cases where an arrest was not made, because who'd need a Lawyer for that? I step in after an arrest is made and a person has been charged, and from that point of view, every one of those Police calls that I deal with resulted in someone having been taken to jail.

Rather than embark upon an academic, politically correct, gender-neutral analysis of these cases, I'm going to invoke my privilege as a Blogger and point out that the overwhelming majority of Domestic Violence Cases involve a man striking a woman. Seen from my perspective, at least, of defending those charged with Domestic Violence, better than 90% of them are men. Once in a while, a woman is charged with the crime, but almost as often as those charges involve striking a male partner, they can also involve striking another relative of some kind, such as a son or daughter.

Equally as important to understanding why someone is always taken to jail after one of these calls would be examining, instead, why no one would be taken to jail. If you think about it, the only way the Police are going to leave without an arrest is if there is no credible evidence that someone committed an Assault and/or Battery upon another. If someone later winds up dead, every aspect of the prior Police contact is going to be examined under a microscope. Nobody would want to be the Officer who gave someone a break, or a "free pass" only to later find out that person seriously injured or killed the other party.

When we talk about credible evidence, by the way, we aren't speaking of some learned, drawn out Courtroom analysis. We're talking about the Police, having usually been summoned by a 911 call, having to make what can amount to life and death decisions, on the spot. Better to err on the side of caution, and have someone later found "Not Guilty," than take the chance of not separating the parties at a volatile point in time. The careful, considered evaluation of the evidence is for later. When responding to a domestic disturbance, safety of the parties, and particularly the alleged victim, are the main priorities. Thus, the answer to questions like "How can they arrest me...?" is pretty self-evident; They can, because they did.

Thus, it's fair to say that when the Police are called, and they show up at the scene of an alleged Domestic Altercation, someone is leaving in handcuffs. As the late Newscaster Walter Cronkite used to say "That's the way it is..."

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December 7, 2009

Possession of Narcotics Paraphernalia in Michigan - Even a Pot Pipe?

My Criminal Defense Practice has me in Court on a daily basis in the Metro-Detroit area, and one of the more common, and often confusing charges I deal with is Possession of Narcotics Paraphernalia. Very often, my Client will ask if a simple "Pot Pipe," clearly used for nothing stronger than Marijuana, can be considered "Narcotics Paraphernalia."

And the answer is yes.

marijuana pipe.jpgAlthough the words "Narcotics Paraphernalia" often appear in many of these laws, other, similar laws use the term "Drug Paraphernalia." Whatever the words used, these laws are all Local Ordinances enacted by a City, Township, or Village. There is no State Law regarding the Possession of Narcotics Paraphernalia.

Under these various Ordinances, the Offense of Possession of Narcotics Paraphernalia is a Misdemeanor, punishable by a maximum of 93 days in jail (don't worry, jail sentences are extremely rare), and a fine of up to $500, plus Court Costs. At first glance, Possession of a Pot Pipe might seem less serious than actual Possession of Marijuana, but in fact, where a Marijuana charge can be completely kept off of a person's Record, a Paraphernalia charge cannot. Consider this example:

Two people are arrested after a Traffic Stop (forget the details, because we can get sidetracked with all of that). When the Police search them, or pat them down, they find a small amount of Marijuana on the one person, and a Pot Pipe on the other. Accordingly, one is charged with Possession of Marijuana, and the other is charged with Possession of Narcotics Paraphernalia.

When they go to Court, the person with the Marijuana charge is told by his or her Lawyer that because they have no prior Drug Record, the Marijuana charge can be kept off of their Record using something known as a "7411," and that they will not be sent to jail. The person charged with paraphernalia, however, is told by their Lawyer that although they will not go to jail, the charge will go upon their Record. Forever.

This is the key difference between these two charges. There is no possibility of keeping a Possession of Narcotics Paraphernalia charge off of a person's Record.

In pretty much every Paraphernalia case I handle, if the charge is "solid," meaning not likely to be dismissed because of some fault or weakness, and if the person I'm representing has no prior Drug Record, I try and have the charge "amended," or changed, to Possession of Marijuana so that I can keep it off of their Record. In most cases, this can be done, but there are some Municipalities that do not have their own Marijuana Ordinance. In those cases, no such "switcheroo" between the charges can be done. Instead, a deal is usually worked out which will have the charge completely removed, or "come off" the person's Record 1 year after it goes on.

For all of this, what's considered a mere "Pot Pipe" can turn out to be a bowl of troubles for the person caught with it.

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December 4, 2009

Court in Macomb, Oakland and Wayne County Michigan - Dress for Success

As a practicing Criminal Attorney who has handled cases in Macomb, Oakland and Wayne Counties for nearly 20 years, there are some things I see that make me shake my head. One of the biggest, most obvious mistakes made by someone who must appear in Court, especially someone who has been charged with a Criminal Offense, is to show up dressed like they're going to a Tiger's game.

Most Court's have "Proper Attire" signs warning about minimum dress standards, but for anyone having to face a Judge for their own case, a little common sense can avoid a lot of problems. Sometimes I have Client's ask me how they should dress for Court, and in those cases, the person is usually trying to decide between a nice outfit or a suit. Those who ask usually have nothing to worry about. It's the person in a t-shirt and jeans that isn't doing themselves any favors.

Moron49-3.jpgEven if a Judge doesn't say anything, part of the decision-making process for each of us is a visual observation of the person to whom we're speaking. A person's choice of clothing is a statement to the Court about the level of respect they have for it. I think many people, in their nervousness, might forget this aspect of the case. Certainly, most of the people who show up to Court dressed too casually did not intend to be disrespectful.

So how do you dress? I think a good rule of thumb is to dress as nicely as you would if you had to pay respects at a Funeral Parlor for someone. A suit is not really necessary, nor is a party dress for a woman, but the jeans should be kept at home, if at all possible. At a minimum, a nice shirt, and/or sweater, and some decent shoes can make up for a lack of dress pants, so that if jeans are all you have, you can "dress them up."

Judges are human. They, like each of us, are influenced by what they see. When a person shows up nicely dressed for their own case, it sends a signal to the Judge that they take their case seriously. It shows an intention to try and make a good impression, and that goes a long way to showing that the person intends to follow the Court's Orders, whatever they might be.

When someone shows up looking like they're heading for that Tiger's game, however, it sends the opposite message. It says, in effect, "whatever...."

Men should shave. If you have facial hair, fine, but shave around it. Excessive facial piercings won't help a case, either. It's one thing to walk around in Public looking like a grenade-attack, shrapnel victim, but it's quite another to stand in front of the Judge looking like that.

Of course these are just my opinions, but I can assure you that they arise from years and years of day-to-day experience in Court. When someone hires me, I feel it's my obligation to not only handle the legal end of things, but to guide them through the whole process as smoothly as possible. Even if you're reading this and are thinking "hmmm, I've got a few things to work on...," how much confidence would (or should) you have in a Lawyer who didn't point these things out? One thing you'll never see is a Judge peering over the Bench at a Defendant standing in front of them and saying something like "Wow, dude, we've got, like, the exact same nose rings!"

I think (and certainly hope) you get my point. When results matter in Court, then a person should always "dress for success."

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December 2, 2009

Michigan Law - OWPD - Operating While in the Presence of Drugs

A few years back, the State of Michigan enacted a new Law which created a new crime, called Operating While in the Presence of Drugs. Even prior to the enactment of the new Law, it was always illegal to Operate a Motor Vehicle Under the Influence of Drugs, and the charge associated with that offense was known as OUID. Now, Driving Under the Influence of Drugs is part of the overhauled OWI law, and included in that law is the new "Presence of Drugs" Offense, set forth in section (8).

The history of these laws is not nearly as important as their consequences. OWPD simply defines "presence" of drugs as "if the person has in his or her body any amount of a controlled substance..." This means that a person who submits to a urine test and, for example, tests positive for Marijuana, can be charged and convicted of the Offense simply because the substance was in their body (i.e., any amount in their body). I have seen this Offense charged in Macomb County.

Pretty much everyone knows that marijuana affects the user for up to several hours after consumption, and pretty much everyone will agree those effects are gone the next day, if not far sooner. Under this new law, a person who smoked a small amount of Marijuana almost 30 days before any urine test may well be "positive" for "any amount" of drugs within their body, and be subject to the same penalties as a Drunk Driver. Remember, the metabolites of Marijuana show up in urine for up to 30 days.

Of course, other Drugs have much shorter half-lives, making a positive urine test much more likely to indicate recent ingestion. Even so, it is very clear that to drive under the influence of drugs is a crime. This new law goes way beyond that. Think about it this way; under this law, if a person uses Marijuana even once, in their lifetime, they cannot drive without violating this law until they test themselves and make sure that any trace amount is out of their system, which, as we know, can take up to 30 days.

With the exception of a $500 Driver Responsibility Fee for 2 years (as opposed to $1000 for OWI), all the penalties for a 1st Offense violation of this law are the same as they are for a 1st Offense DUI:

$100 to $500 fine and one or more of the following:

Up to 93 days in jail.

Up to 360 hours of community service.

Driver's license suspension for 30 days, followed by
restrictions for 150 days.

Possible vehicle immobilization.

Six points on driving record.

$500 Driver Responsibility fee for two consecutive years.


The point to all this is just to note that many people may not even be aware that they are violating the Law when they drive their car, even those who would never think to endanger anyone by driving under the influence of anything. Fortunately, in my Practice, which involves handling all kinds of DUI and other Driving and Driver's License Cases, the charge of OWPD has only come up rarely. Given the apparently unfair effect of the law, let's hope it stays that way.

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