Michigan Criminal Defense Lawyer Blog

It's been a while since I last wrote about Indecent Exposure charges, and in that time I have noticed that there has been a significant change, or shift, in how these cases are brought, and exactly what Offense is being charged. Recently, I've dealt with several cases where my Client has, somewhat mistakenly, thought they were facing a simple Misdemeanor charge.

An astute reader will, at this point, ask, "what do you mean, somewhat mistakenly? Either your Client is right, or he's mistaken."

I have chosen my words carefully. I mean somewhat mistakenly. Read on...

Until a few years ago, the only "Indecent Exposure" crime that existed in Michigan was simple Indecent Exposure, which is a Misdemeanor punishable by up to a year in Jail, but no more than that. And to be clear, in practice, Jail in any Indecent Exposure case can be completely avoided if things are handled properly. In fact, as a Lawyer who rather routinely handles Indecent Exposure cases in the Metro-Detroit area, I am usually able to entirely keep the whole charge off of my Client's Record, meaning the whole incident just "goes away," much less keep the Client from getting locked up.

Then, several years back, the Legislature amended the Law, and added a new charge called "Aggravated Indecent Exposure." This new addition to the Law upped the penalties in cases where, beyond just exposing himself or herself, a person was seen fondling his or her private parts.

At first, even in those cases where there was fondling, many, if not most Police agencies just reverted to bringing the charge as regular old "Indecent Exposure."

More recently, however, the tables have turned, and I see more and more cases being brought as "Aggravated Indecent Exposure." In fact, it has been a while since I've seen a garden-variety simple Indecent Exposure. Instead, almost all the cases I've handled in the last several months have been "Aggravated Indecent Exposure" charges, which are Felony Offenses.

Continue reading "Aggravated Indecent Exposure in MIchigan is NOT a Misdemeanor" »

As a DUI Lawyer, I see almost every scenario that ends with a Drunk Driving Arrest. These scenarios include a Driver being rather simply pulled over for weaving in and out of his or her lane, to a person being found passed out behind the wheel of a running car after having crashed into something. I've even had cases where people have been Arrested after having parked their car and gone into a home or other building (these kinds of cases often present wonderful opportunities to successfully challenge the case, or evidence that is a part of it, and get the charge "knocked out").

A situation that has become far more common over the last several years starts with a cell phone call from an anonymous "tipster" alerting the Police to a suspected Drunken Driver. This article will focus on this increasingly more common situation, and will examine the evidentiary and legal requirements that must exist for such a case to proceed through the legal system, and how these things actually play out in the real world. For all the legal complexity the reader might suspect is involved, this can actually be boiled down to a rather simple and straightforward analysis.

It all begins with a tip called in by another driver. Whether that driver is an overly-zealous "do-gooder," or a decent citizen honestly concerned for the safety of others really doesn't matter. What matters is that a description of a vehicle (meaning some identifying information such as make, model, color, and/or the plate number) is given, along with enough geographic information for a Police Officer to locate it.

Legally speaking, the Police can't just pull up to the identified vehicle and pull it over. By law, the Police have to observe the driver either do something that would otherwise justify a Drunk Driving stop, or otherwise violate some traffic Law that, in and of itself, would justify a Traffic Stop. In other words, the Police need a valid reason to pull over the driver of the car that was reported, and can't just pull it over because Joe Citizen suspects the driver of being drunk.

In real life, this typically isn't a problem. Consider for a moment: how many suspected Drunk Drivers have you, the reader, ever called in? Most likely, the answer is none. Usually, it takes a pretty obvious case for Joe Citizen to dial 911. Police Officers are trained to spot Drunk Driver's; citizens are not. By the time a person is weaving or otherwise driving erratically enough for someone to call in a "tip," they are often rather clearly intoxicated.

In such a case, the Police usually don't have to wait very long for the reported Driver to give them a reason to activate the overhead lights.

Continue reading "Drunk Driving (DUI) Charges in Michigan Resulting From a Cell Phone Tip" »

Within my DUI Practice, the majority of Clients I have are first-timers. I suspect it's the same for any DUI Lawyer. This only makes sense because the majority of DUI cases pending in any District Court at any given time are 1st Offense cases. Nevertheless, a rather large percent of my DUI Clients are facing their 2nd Offense. I suspect this is the case because, having already been through this once before, they are able to identify with the information I have provided on my website, especially that dealing specifically with 2nd Offenses, and find my various Drunk Driving blog articles to be spot-on in terms of the accuracy of the information presented.

One of the more common questions I am asked deals with the difference between a 1st and 2nd Offense DUI in terms of outcome, or what happens to the person facing the charge. This article will focus on those differences from the perspective of someone who has a prior DUI and is facing a 2nd Offense. Despite that focus, those facing their 1st Offense may want to read this article, as well.

It doesn't take a rocket scientist to figure out that a 2nd Offense DUI is going to be a lot tougher than a 1st Offense. Many Courts, especially those in Macomb and much of Wayne Counties, are understanding enough to at least consider the possibility that a 1st Offense DUI can be an out-of-character incident for someone, and not necessarily the manifestation of an alcohol problem. In other words, it can be just an instance of bad judgment. Oakland County Courts are generally more inclined to be cautious in their approach to a 1st time DUI Offender, and will seldom be as lenient as either their Macomb or Wayne County counterparts. For all of that, with the exception of 1 Judge in the 48th District Court in Bloomfield Hills, a 1st Offender can essentially count on NOT going to Jail. The kind of "leniency" we're talking about here has to do with things like classes, community service and counseling, and NOT incarceration.

There are really two ways in which a 2nd Offense differs from a 1st Offense. As noted before, the one about which I am most frequently asked has to do with what will actually happen to the person facing the charge, and, more than anything else, the most important of those concerns is "am I going to Jail?" Beyond that, the legal consequences, such as things like loss of the Driver's License, Fines, Costs, Community Service and Counseling or Treatment are very different, meaning more serious, or severe, in a 2nd Offense case.

One constant that is an inherent part of each and every 2nd Offense case is the belief and perception by just about everyone in the criminal justice system that the person facing the charge has an alcohol problem. Over 21 years ago, when I was a new Lawyer, I was often too concerned about offending my Clients to be as direct and forward as I am now. Tempered by over 21 years of experience, I have long since realized it's my job, and my obligation to help my Client, and an important part of that is to prepare them for what is really going to happen, and how they are really going to be viewed and treated by the Court system.

Continue reading "DUI in Metro Detroit - The Real Differences Between a 1st Offense and 2nd Offense Case" »

"How much do you charge for a DUI?" This is a question that I'm asked almost daily. In truth, I find it somewhat funny, because I list my Fees on my site and my blog under the section at the top marked "Fees." Look up at the top of this page. See it? It's there.

This article will examine Fees in a DUI case, and why some are so low, while others are so high, and what a person can expect to get for their money.

For what it's worth, I only handle charges brought in Macomb, Oakland and Wayne Counties, and I charge the following for DUI cases:

1st Offense: $2000. I begin with ½ ($1000) down, and the other ½ ($1000) must be paid prior to the conclusion of the case.

2nd Offense: $2400. I begin with ½ ($1200) down, and the other ½ ($1200) must be paid prior to the conclusion of the case.

3rd (Felony) Offense: $4000. I begin with ½ ($2000) down, and the other ½ ($2000) must be paid prior to the conclusion of the case.

I have repeated this theme throughout many of my blog articles: Looking for a Lawyer on a "low-bidder" basis is about the worst way to find quality representation. There is simply no way to not cut corners when offering a discount price. We'll come back to this later.

Continue reading "DUI Legal Fees in Macomb, Oakland and Wayne Counties" »

As a DUI Lawyer who practices in Macomb, Oakland, and Wayne Counties, I handle DUI cases almost every day. About 2 years ago, our state legislature in Lansing decided that it would be a good idea to "up" the penalties in DUI cases where a person's breath or blood test (BAC) results are .17 or above. This new Offense is known as "High BAC" or "Super Drunk." Since it passed, the new Law has, by and large, been a flop. This article will discuss why almost no one Arrested for DUI, and whose breath or blood test results are .17 or above, at least in the Tri-County area, is charged with the new "High BAC" Offense

With all the things wrong in Michigan, one can only wonder how this subject ever even got on the legislative agenda, but if there's one thing we can say about Lansing, it's that every time a new law is passed, it will either make life more difficult, or expensive, or both. Ideas for actually making things better just don't show up on the menu.

In their infinite wisdom, our State Legislators decided that anyone charged with a DUI who had a breath or blood test result (technically called a BAC, or Bodily Alcohol Content) of .17 or above should be charged with a more serious Offense which effectively doubled the penalties of a standard, old-fashioned DUI. Of course, it would have been somewhat unpopular, perhaps to the point of being political suicide, to stand against this idea, so both houses fell in step and went along, and the legislation passed without difficulty.

On the face of it, the notion of making "super drunk" drivers face stiffer penalties sounds like it could have the desired impact of discouraging people form engaging in this kind of behavior. Unfortunately, DUI is always an "unintended" Crime. No one sets out to go and get drunk, much less "super-drunk", and then drive home. Instead, as a person gets drunker, their ability to make a sound decision regarding driving gets proportionally impaired. In reality, getting drunk fundamentally impairs a person's ability to make good decisions. At 2 in the morning, and needing to get home, people will inevitably turn to what's most convenient to do that; their car, even though that's about the worst decision they could make, and one, when they were sober they swore they never would.

What no one bothered to consider was the financial impact of this new law. DUI has been called a "cash cow," and is unarguably a big financial boon to municipalities. At its simplest, DUI is big, easy and good money for the Courts, the Towns, and the Police which process and handle these cases.

In their haste to act, the legislature obviously did not consider that in "doubling" the penalties for High BAC cases, they were making this new Offense a state crime that could no longer be handled by local, city and township Attorneys, and would divert the Fines from those municipalities to the state. In other words, the Fines imposed in High BAC cases are paid directly to the State, instead of the city or township where the case has been brought.

This had the potential to cost cities and townships a huge amount of cash. This is like a dam in their revenue stream. And with money being in such short supply, there isn't a city or township anywhere that wants to give up any more than it has to, especially to the state. Although there may not be any accurate statistics, a large enough portion of DUI charges involve a person who tests out with a BAC of .17 or above. The percentage of people who come in over that limit is substantial. This in turn, presented a potentially substantial cut in the money flowing into cities and townships from DUI cases.

Continue reading "DUI in the Detroit-Area - Why so few Cases are Charged as "High BAC" or "Super Drunk"" »

In part 1 of this article, we began examining the role of the PSI in a Criminal case. We learned that the PSI, or Pre-Sentence Investigation, is a comprehensive process that ultimately results in written Sentencing Recommendation being made to the Judge presiding in any given case. We also learned that the PSI Recommendation could be thought of as a "blueprint" for what the Sentence will be, as almost every Judge out there follows that Recommendation to the letter, or extremely close to it.

Here, in part 2, we'll pick up where we left off, beginning with a look at how the Probation Officer interviewing someone is likely to perceive that person. We'll continue by examining why, in a DUI case, for example, how well or poorly a person scores on the legally required alcohol assessment test impacts what happens to them at Sentencing.

First, bear in mind that everyone showing up for a PSI has been convicted of a crime. Technically speaking, Probation only deals with convicted Criminals. This may seem too harsh or strong a label for someone who has, for example, received their first DUI, and it may not sit well with them, but it does not change the reality that no one is required to meet with a Probation Officer for singing too much in the church choir. A person needs to understand how they are perceived by Probation Officer who will be interviewing them, if they want to positively influence that Probation Officer's conclusions about them.

And make no mistake about it, there is a whole psychological profile to Probation Officers. They are an interesting group, and, whatever else, really are the single most important person in a Criminal case, in that they write the Recommendation that will, in almost every case, be followed by the Judge. Knowing how to deal with them, and understanding things from their side of the desk is an important component in producing a better Sentence.

An example of what not to do in a PSI applies to those first-time Offenders, like the 1st Offense DUI person we mentioned above. Most middle-class DUI Offenders have a hard time thinking of themselves as "Criminals." DUI is, after all, more a crime of bad judgment more than anything else. Almost anyone facing a DUI would never think of robbing or harming someone, or stealing anything. So these individuals, who lack any kind of criminal mindset, are typically horrified at the prospect of being considered, much less treated, as a "Criminal."

Continue reading "How to get a Better Sentence in a Michigan Criminal or DUI Case - Part 2" »

When a person is facing a Criminal charge, they usually have lots of questions. First amongst them, however, is some version of "what's going to happen to me?" In this article we'll take a step back, and instead of trying to answer the question "what's going to happen," we'll examine why whatever does happen, in fact happens. In other words, we'll try to find out why a particular Sentence is handed down in a Criminal case.

Having been a Criminal Lawyer for over 20 years, I certainly have learned a lot. And while I hated to be on the receiving end of these comparisons 15 or so years ago, the reality is that I know a lot more now than I did then. I have learned things that go way beyond knowledge of the Law itself. Often, what is most important in predicting the outcome of any specific case has more to do with where the case is pending, or the identity of the Judge to whom it has been assigned, rather than the rule of Law itself.

This is why, when we speak of Doctors and Lawyers and other professionals who have around 20 years experience, we say they're "hitting their stride." This is also why you'll never see a rich and famous person being represented by a newbie Lawyer. Think of any celebrity Criminal case; the Lawyer who stands in front of the microphones is always a seasoned veteran.

Yet for all that, I began to figure out certain truths about why cases turned out the way they did pretty early on in my career. Here's where anyone who has ever had a prior Criminal case will instinctively understand what I'm about to say, while everyone else will simply have to believe the logic of it:

What happens, meaning the Sentence that a person receives, in any case, is always either identical to, or nearly identical to the Sentencing recommendation sent to the Judge by the Court's Probation Department.

This bears some explanation.

In all Felony cases, and in many Misdemeanor cases (such as DUI), the Law requires that, prior to a person being Sentenced by the Judge, they go to the Court's Probation Department for an evaluation and interview, called a Pre-Sentence Investigation (PSI), and that the Probation Department, as a result of that process, generate a written Report and Sentencing Recommendation to be used by the Judge in Sentencing the person.

Continue reading "How to get a Better Sentence in a Michigan Criminal or DUI Case - Part 1" »

There is a consequence to all Drug Possession cases that is often overlooked, if not unknown, by many people facing such a Charge. This is the mandatory Driver's License Suspension that MUST be imposed in any case where a person has been convicted of a Drug Crime. Strangely enough, this mandatory Suspension is the same, whether or not the person was charged with Possession of Marijuana, or Possession of Heroin, or any substance in-between, either Felony or Misdemeanor.

The reason this mandatory Suspension ever came into existence is another fine example of what happens when Lansing acts. As I have said in previous articles, I try to keep politics out of this blog, but I cannot escape the truth that pretty much EVERY LAW that is enacted in our state either makes life more difficult, or expensive.

Honestly, when is the last time a Law was passed that made your life any better? The smoking ban is, in my view, the only exception to this proposition, but that really depends on whether you smoke, or not. I don't, so I like the change.

Thus, a number of years ago, our state legislature decided that it didn't like the idea that most people who faced a Drug Possession charge didn't go to jail. The feeling was that simply being placed on Probation wasn't enough consequence, so it was decided that a provision would be written into the Law that anyone convicted of any Drug Possession charge who WAS NOT Sentenced to Jail would thereby have his or her Driver's License Suspended for 6 months, in any 1st Offense case, and for 1 year if the person had a prior Drug Possession conviction. The Court in which such a conviction took place became legally obligated to impose the Suspension, and would, of Course, have to report the matter to the Secretary of State as a "Drug Crime."

Although there is a corresponding License Sanction in Drug Delivery cases, we'll keep our focus on the far more common Possession charges.

To soften the "sting" of leaving so many people without a way to get to work, the Legislature added a provision to the Law that allows the Judge handling the Possession case to grant the person a Restricted License. In 1st Offense cases, this can be done after the person has suffered through 30 days of the Suspension. In 2nd Offense cases, the Judge can grant that Restricted License after the person has gone 60 days with a fully Suspended License. This has not worked out so well, however.

Continue reading "Possession of Marijuana or Other Drugs and the Mandatory Michigan Driver's License Suspension" »

If getting a DUI case dismissed outright is like winning the Powerball Lottery, then having a DUI case knocked down to a non-alcohol related Offense is like hitting the Jackpot in a raffle. As a busy DUI Lawyer, these victories are the things that become the highlights of my day-to-day Practice. I have pointed out, in many of the nearly 70 Drunk Driving articles I have published, that these kinds of outcomes are far more the exception, rather than the rule. Any DUI Lawyer will handle quite a few "garden-variety" DUI's before he or she gets one that can be knocked out, or knocked down.

This might explain why I'm so excited about a day in Court, the week before last, when, out of the 3 DUI cases on my schedule, 2 of them were knocked down to non-alcohol related Offenses. What's more, it happened in 2 different Courts!

Obtaining these breaks is not, however, just a matter of luck. It requires a detailed analysis and review of the evidence by an experienced DUI Lawyer. Sure, there is an element of luck in that there is a sufficient defect in the evidence for any particular case in the first place, but finding that defect requires looking for it, first. In a way, this parallels the old saying "you won't know if you don't ask." A Lawyer wouldn't find a problem with the evidence if he or she didn't first evaluate that evidence with a careful and critical eye.

Beyond the benefit to the Client in avoiding the whole DUI charge, and all the negative consequences that go with it, these "jackpots" refresh the Lawyer, as well. Imagine if you were mining for gold, digging through dirt, and year after year you never found any. How much enthusiasm would you be able to sustain as you continued?

In each of the two cases referenced above, the "defect" in the evidence was not something pointed out by the Prosecutor. Nor was the defect obvious. Does this mean the Prosecutor simply hadn't evaluated the case as critically as I did? I tend to think so. Prosecutors, after all, handle tons of cases, and simply don't have the time to study each one like a Defense Lawyer, whose whole focus in on that single case. Even when they do read a Police Report, it's not as if the Prosecutor is looking for a "way out."

In my first case, there was a scientific problem with the Breathalyzer evidence. It would take far too long to explain it here, but the bottom line is that I was able to point out to the Prosecutor that his case was seriously compromised, and in light of the defects in the evidence that I showed him, he had little choice but to agree.

Continue reading "DUI in Michigan -Getting 2 DUI Cases "Knocked Out" on the Same Day" »

Within my Practice as a DUI and Criminal Lawyer, I am often asked by someone facing a DUI how long it will stay on their Record, or if the can come back later and have it Expunged.

The bad news is that a DUI will stay on a person's Record forever, and it can NEVER "come off."

A DUI, technically called an OWI (Operating While Intoxicated) is both a Criminal and Traffic Offense. A conviction for a DUI goes on both a person's Driving Record, and their Criminal Record.

Beyond that, a DUI falls under a whole different set of Laws related to a Court's obligation to report certain, specified Offenses to the Secretary of State. Part of those Laws is a provision that Criminal Traffic Offenses CANNOT be Expunged, ever. And this applies equally to any Criminal Traffic Offense, not just DUI's.

Moreover, the Law forbids the Court from taking a DUI "under advisement," or otherwise "deferring" it. This is often the answer I have to give someone who asks about the possibility of having the charge somehow deferred for a given period of time, and if they do everything they're supposed to do, having the whole thing dismissed, or reduced to a non-alcohol-related Offense.

In short, it cannot be done, except in those cases where there is a critical and substantial defect in the evidence. And those situations are few and far between.

Continue reading "Michigan DUI - How Long Will it Stay on my Record? " »

In recent months, I have seen a noticeable increase in the number of Indecent Exposure cases coming into my Practice. Fair warning here: this article is going to use some terms that are not be suitable for children as we take a look at a couple of common themes involved in many of these cases.

In my 20-plus years of handling cases like this, I have come to fully understand how embarrassing, humiliating and frightening this kind of charge is to the person facing it. Likewise, I'm keenly aware that it is important for me to ease my Clients' mind and help them move past those feelings, as we begin to develop a strategy to handle the case, and make things better.

There are really 2 charges that fall under the umbrella of Indecent Exposure:

The first, and most common, is a Misdemeanor simply called "Indecent Exposure" which carries a maximum penalty of up to 93 days in Jail. It is sometimes linked or written as "Disorderly Person/Indecent Exposure."

The second, and more serious charge is technically called "Aggravated Indecent Exposure." This is a Felony charge that carries a maximum penalty of up to 2 years in prison. Felony cases are ultimately handled in the Circuit Court for whatever County in which the case is brought.

The difference between these 2 charges is that Aggravated Indecent Exposure involves fondling of the genitalia. Interestingly, a significant percentage of cases involving such fondling are still brought as regular, Misdemeanor Indecent Exposure charges. To date none of my Clients have been upset about that decision....

The vast majority of Indecent Exposure cases involve a man being charged. Of the hundreds of such cases I have handled, I've only seen one or two involving women.

And while there are plenty of cases where some guy gets caught urinating behind a dumpster, or in an alley, quite a few Indecent Exposure cases involve masturbation. This really splits into 1 of 2 things:

Continue reading "Indecent Exposure Charges in Michigan " »

A fair number of my DUI Clients are individuals who have a CDL, or Commercial Driver's License. Some know, before they contact me, that any kind of DUI conviction, including a 1st Offense, will automatically result in a 1-year Suspension of a person's CDL privileges. Those who didn't already know that are rather unpleasantly surprised to find out.

It used to be, a few years ago, that when a person faced, for example, a garden-variety DUI (meaning OWI, actually), their Lawyer would get the charge dropped to the less severe Offense of Impaired Driving, which only carries a 90 day Restriction of a person's License. During the 90 days the person's regular Driver's License was Restricted, their CDL was Suspended. After 90 days, they'd pay a $125 Reinstatement Fee to the Secretary of State, and their full License, including CDL, would be given back.

Then someone in Lansing had an idea. Honestly, I try to keep politics out of this blog, but the older I get the more I'm convinced that politicians aren't nearly so much crooked as they are incompetent. Really, how many laws have been passed that made your life any better? Maybe the smoking ban was a good thing (sorry smokers...), but beyond that, anything that comes out of Lansing is either going to make life more difficult, or expensive, or both.

Anyway, some Einstein in Lansing figured that it would be a good idea to tack on a mandatory 1-year Suspension of a person's CDL as a punishment for any 1st Offense DUI charge. I can only guess that the idea behind this action was that this would somehow serve as a further disincentive for anyone to drink and drive.

Except that about the only time anyone finds out about this is AFTER they get a DUI charge, when it's too late to do anything about it. And the fallout from this part of the law is pretty substantial.

I've had utility workers who drive trucks for their employers worried sick about losing their jobs. The good news is that in all the cases I've handled, my Clients have been able to manage some kind of work-around. Sometimes this means filling a different position, and other times it means riding shotgun with another driver.

Continue reading "DUI and the Commercial Driver's License (CDL)" »

It wasn't that long ago that I wrote a 2-part article about the increasing number of Embezzlement cases that I am handling. As I noted in that article, the increase in my Practice mirrors a larger trend beyond the doors of my Office. I can only surmise that these tough economic times have driven people to engage in behavior that they would not otherwise even consider.

Having dealt with so many of these cases recently, I thought we'd examine them from an emotional, and real-world point of view, rather than just hold Embezzlement charges up for yet another legal analysis.

The majority of Embezzlement cases I see involve women being charged. That's not to say that men are a distinct minority, but in almost every other kind of charge, the ratio of men charged, as opposed to women, is pretty high. Men commit more crimes than women. Embezzlement cases flip that on its head.

The amount of money taken (or lost, as in the case of those who take or otherwise handle property), by the time the case is brought, is usually quite high. I haven't seen more than one Embezzlement case involving less than $20,000 in a long time, and many involve amounts in the hundreds of thousands of dollars. In the smaller case I just mentioned, a male Client had pilfered a few pairs of jeans and some tools from his employer, a large retail company. He didn't realize that he had been observed on camera. His case was worked out so that he avoided getting a Criminal Record.

Most of these cases begin with a call from a Police Detective, or and investigating Police Officer. This is usually when I get called. Often, the person is somewhat conflicted about just getting this off their chest and hoping that it can somehow go away. They need direction, even if they already know any Lawyer worth a nickel is going to tell them not to say anything.

At this point, the Police almost always already have the information they need to bring the charge, anyway. The "charging" document is called a "Warrant." If they didn't have enough information to get a Warrant, then it would, of course, make little sense to go in and give them the missing piece or pieces needed to bring a case. This is why I always advise anyone to contact a Lawyer BEFORE they go to the Police Station, or make any kind of statement.

Continue reading "Facing Embezzlement Charges in Michigan and Dealing With the Emotional Implications" »

Anyone facing a DUI understands that the breathalyzer results are very important. Those numerical results are supposed to equate to a person's Bodily Alcohol Content (BAC), and are used by the Police and Prosecutors to show that that a person was "under the influence" or "over the limit" in any Drunk Driving Case. Beyond that, once a person's BAC has been measured at the Police Station, they are not released until that number has fallen low enough to be sure the Police aren't responsible for letting an intoxicated person out of their care and custody.

In my DUI Practice, this number is important to me for a variety of reasons. It goes without saying that any DUI Lawyer, like me, looks at that number with the hope that it can somehow be challenged in a way that makes the whole DUI charge collapse. In this article we'll briefly examine the whole notion of challenging the breathalyzer.

I have pointed out that those situations in which a case can be "knocked out" because of some breathalyzer problem are more the exception, rather than the rule. This is a phrase that we'll repeat a number of times throughout this article. I simply will not set up shop and "cash in" by selling, and telling people, what they want to hear, as opposed to telling the truth. And the truth is that most DUI cases are not going to be dismissed on some breathalyzer technicality.

In a prior article entitled Michigan DUI - How the Rich and Famous Beat the Charges," I pointed out that, in most cases, they don't. I think that's a fact worth repeating. If these charges could be beaten by simple persistence, then every single celebrity and person of fame would just plunk down the cash to "Lawyer up" and get the case dismissed. Yet, almost every day, we hear of someone famous getting charged with DUI, and, sometime later, you hear about them being placed on Probation.

Why?

Because those DUI cases that can be easily knocked out are the exception, and not the rule.

Consider, for a moment, the garden-variety DUI charge. The Officer will claim to have observed the Driver swerve or in some way drive erratically. Sometimes, these observations are made (or at least claimed) after a cell-phone tip. When the person is pulled over, the Officer notes all the usual characteristics of DUI driving. Fast-forwarding a bit, after being taken to the Police Station, the end result is usually a breathalyzer (BAC) score of over, if not well over, the legal limit of .08.

Continue reading "Michigan DUI - Understanding and Challenging Breathalyzer Results" »

In part 1 of this article, we began examining the probability of avoiding jail in 1st and 2nd Offense DUI cases. We saw that with the exception of 1 Judge in the 48th District Court in Bloomfield Hills, a 1st Offender can safely assume that they are NOT going to face any Jail time.

We next looked at 2nd Offense cases, and saw that, while Jail can usually be avoided in Macomb and Wayne Counties, things change if the case is pending in an Oakland County Court, and we also noted that, generally speaking, the farther north one goes, the worse things get.

In this second part, we'll pick up by looking at 3rd Offense cases, and we'll wrap up by looking at certain general principles that apply in all cases, be they 1st, 2nd or 3rd Offenses.

To begin, we should bear in mind that 3rd Offense (Felony) cases are an entirely different species from their 1st and 2nd Offense Misdemeanor relatives. Of course, part of that difference is that while 1st and 2nd Offense cases are Misdemeanors, meaning punishable only by a Sentence of either 93 days or 1 year in the County Jail, respectively, a 3rd Offense is a Felony that can carry a Prison Sentence of up to 5 years.

Before anyone starts fearing being carted off to Jackson Prison to start a new career in License Plate Manufacturing, it should be noted that a Prison Sentence is usually reserved for people with far more than 2 or 3 prior DUI's. The law does, however, require a person convicted of a 3rd Offense to serve at least 30 days in Jail. That's not negotiable.

The good news, if you can call it that, is that in Macomb County, a person who has only 2 prior DUI's , and who is facing a "true" 3rd Offense (meaning it is only the 3rd time they've ever been charged with a DUI) can, if things are handled correctly, avoid a Felony conviction altogether. In other words, a "true" 3rd Offense, if things are done right, can be reduced to a 2nd Offense Misdemeanor (and can, possibly, also avoid a Jail Sentence). This is not an option in Oakland County, and is seldom, if ever done in Wayne County. This is almost entirely a Macomb County deal.

Continue reading "DUI - Staying out of Jail in Macomb, Oakland and Wayne Counties - Part 2" »

Amongst the various articles within the Drunk Driving section of this blog, I have addressed the issue of avoiding Jail in 1st Offense DUI cases, 2nd Offense cases, and 3rd Offense cases, albeit separately. It has been politely suggested to me that not everyone wants to engage in the kind of time consuming, in-depth research that I find so interesting, and that some would prefer a single, more overview-type article about staying out of Jail in DUI cases covering all 3 levels of the Offense. This 2-part article will be my best attempt to do that.

At the risk of being both repetitive and overbearing, it is, I think, worth pointing out that my experience as a DUI Lawyer spans more than 20 years. I don't handle Divorce cases (never have), Don't do Wills (never have), and don't sue anybody. The bread and butter of what I do is DUI and Driver's License Restoration (which itself arises from multiple DUI's). Accordingly, what I am about to describe below is the product of tremendous experience handling DUI cases. It's not merely a part of what I do; it is the very foundation of what I do, day-in and day-out.

That said, in more recent years I have been able to restrict my DUI practice to the Tri-County area around Detroit. My Website's name, macombduidefense.com, should be a clue to that. I handle DUI cases in Macomb, Oakland and Wayne Counties. Once in a while, I'll take a case in Lapeer or St. Clair County, or even Livingston County, but I do not and will not go beyond these areas. As a result, some, or even much of what I say may not apply to cases pending in other Counties.

After being hired, the first thing any good DUI Lawyer is going to examine is whether there is some way to beat the charge, or have some of the evidence (usually from the Stop, the Field Sobriety Tests, or the Chemical Testing, meaning Breath or Blood) "thrown out."

Even if a challenge to the evidence may not result in an outright dismissal of the charge, it can possibly aid the Lawyer in getting the case knocked down to a non-alcohol traffic charge. To be truthful, this examination is (and should be) undertaken in every case, but finding such "problems" with the evidence is far more the exception, rather than the rule.

This means that the vast majority of DUI Arrests will hold up, and the person will have to deal with a DUI charge as a DUI charge. Still, it doesn't hurt to "dot the I's and cross the T's" and make sure that case is solid.

Continue reading "DUI - Staying out of Jail in Macomb, Oakland and Wayne Counties - Part 1" »

One of the most common questions I am asked as a DUI Lawyer is whether or not someone facing a DUI should get involved in some kind of Counseling. In a prior article, I examined some general rules about when a person should consider getting into counseling, when they absolutely ought to, and when it is really unnecessary. In that article, I examined Counseling and Treatment from a legally strategic point of view, with no reference to the actual needs of the Client. This (long) article will focus on the needs of a DUI Client relative to a potential drinking problem, and how those actual needs can sometimes seem to be at odds with the best legal strategy.

I have a rather extensive background in alcohol and substance abuse diagnosis and treatment. This field of study has been a specialty of mine for over 20 years. It is this specialized knowledge that has been the basis for my success as a Driver's License Restoration Attorney, a field in which I maintain a win rate so close to 100% that I guarantee I'll win any License Appeal I take. It is not my experience as a License Restoration Lawyer that makes me so knowledgeable about alcohol and substance abuse maters; rather it is my knowledge of those things that makes a better License Restoration Lawyer.

Based upon my 20-plus years' experience handling DUI and License Restoration cases, I have certainly honed the skills necessary to assess the best legal strategy for a Drunk Driving Client. However, as noted at the outset, the best legal strategy sometimes differs from the best choice to meet the personal needs of the Client. Let's examine the considerations, conflicts and matters of conscience that are part of the mix, and, at times, the dichotomy of being an "Attorney and Counselor at Law."

We sometimes confuse the notion of a "good" Lawyer with someone who is bold and aggressive. Those qualities are, on occasion, necessary when defending someone, but as personality traits they are rather standoffish. Unfortunately, the media too often gives airtime to those Lawyers who are simply brash, confrontational and loud. If there is one lesson I have learned well as a Practicing Lawyer, it is that the most successful people in any field, be it business, sales, politics or even law, are those who win people over by persuasion, and not by intimidation. Being argumentative and loud may attract attention, but it does not attract much else.

I have often likened my job to being a diplomat. In a DUI case, I have to temper my Client's hopes of simply beating the case, and I have to temper the Prosecutor's ambition to convict the person of everything under the sun, and lock them up for it. Except for those lucky occasions when there is a significant enough defect in the evidence to get the case knocked out, I explain the realities of the situation to my Client, and I thereafter persuade the Prosecutor and the Judge to take it easy on the Client, essentially brokering a deal that both sides can live with.

Part of that "diplomatic" role I play is to earn the Client's trust, and to not offend them, or in any way put them off. This means that when I meet someone who clearly has a drinking problem, but is likewise clearly in denial, I don't just bull-rush in and scare them off with a lecture that will only fall on deaf ears, anyway. Instead, I gauge the person's receptiveness to the suggestion that they might want or need to look at themselves from a different perspective, and proceed accordingly.

That sounds straightforward enough, right?

Continue reading "Drunk Driving in Macomb, Oakland and Wayne Counties - the DUI Charge, Drinking, and Counseling" »

As a DUI Lawyer, I am in Court almost every day. Ask any Lawyer who has a DUI Practice, and you'll soon find that each and every one will note a profound difference in the way these cases are handled in Macomb County as opposed to Oakland County. Right down to the garden-variety Drunk Driving case, the differences between the 2 Counties are so significant that it almost makes the Lawyer feel like he or she is Practicing in 2 different States.

It is a well-known fact that Oakland County is the toughest of the 3 "Tri-Counties" in which to face a Criminal charge. In DUI cases, that difference is often made clear even before the person even Bonds out of Jail.

In most DUI cases, a person is Arrested in the evening, and typically let out of Jail sometime the next morning. Most often, the person will either post a small Bond (frequently about $100) at the Police Station, or simply be let go with a Notice to contact the Court within 10 or 14 days.

Sometimes, however, a person will be Arraigned, often by video, by a Judge or Magistrate, before they are let out of Jail. In those cases, the Judge sets a Bond amount, and imposes various Bond Conditions. Those conditions always include not leaving the State without prior permission of the Court, and no use of alcohol or drugs. Sometimes, especially in cases involving a 2nd or 3rd Offense, or those involving a high BAC result, those conditions include breath or urine testing. Such testing is far less frequent in Macomb County than it is in Oakland County.

Once the person and their Lawyer come to Court to begin resolving the case, the differences become more pronounced. In those 1st Offense cases brought by a State Police Arrest, the County Prosecutor, as opposed to a local City Attorney handles the charge. In Oakland County, it begins to becomes more difficult to get a Plea Bargain to Impaired Driving when a person's BAC (Breath Test Result) goes above a .12. In Macomb, the general cutoff for that kind of a deal goes up to about .16. Of course, exceptions abound, and the reason a person pays a Lawyer is to try and get one of those "exceptions" in the first place. Still, facing that kind of hurdle at the outset of a case is only a sign of things to come.

Even in a 1st Offense case, for example, where a Plea Bargain to Impaired Driving is worked out, what actually happens to the person can be strikingly different in one County as opposed to the other.

Continue reading "DUI in Macomb County -vs- DUI in Oakland County" »

In part 1 of this article, we began examining the role of in-car Police video in DUI cases. We left off after reviewing the role of in-car video right up through the Traffic Stop. In this 2nd part, we'll pick up with what typically follows in any DUI Traffic Stop, the Field Sobriety Tests.

Beyond the Traffic Stop itself, in-car video can record the Field Sobriety Tests. In these cases, the audio is also important. Therefore, it shouldn't come a surprise that in any number of these videos I've obtained, there was no audio, or the Sobriety Tests were performed outside the angle of view of the in-car camera.

To be fair, in most of the videos I've seen and heard, the Client has, to put it nicely, not been at their best. Told, for example, to count backward from 89 to 72, the Client will continue on past 72 into the 60's. Letters are skipped during alphabet recitals. "I've seen enough. Turn it off" is a request that has been made of me any number of times while the Client and I watched the video.

Again, even if the video offers no help in avoiding a DUI, it does bring a certain peace of mind to the Client, because they can at least move beyond any belief (or clouded memory) that they did "fine."

Although it may be exception, rather than the rule, finding that video where the Client does just fine is a bonus. It's like finding a pound of gold in a ton of dirt.

Before any of this can be done, however, it must be determined whether or not there was any in-car video. As a general rule, most Police departments will "recycle," or erase over any video in about 30 days after it is recorded. This means a person must not delay in hiring a Lawyer to make that inquiry to prevent destruction of this evidence.

Which should bring to mind two very important questions. Why would the Police destroy any video that supports their case? Wouldn't they really only be interested in getting rid of any video that did NOT help their case?

Continue reading "The Role of Police Video in a Michigan DUI Case - Part 2" »

In my capacity as a DUI Lawyer, I have read, in my 20-plus years, thousands upon thousands of Police Reports. Careful examination of the Police Report in any DUI case is absolutely essential to proper handling of the case. In the last number of years, however, the presence of Police in-car video has added another ingredient to the mix of things that must be reviewed by the Attorney before any plan of intelligent action can be formulated. This article will be a bit longer than most of the others in the Drunk Driving section of this blog, and therefore will be divided into 2 parts.

We live in a video world. The advent of shows like "Cops" introduced us to seeing Police in action. And if you want to take about media "bias," how often do you see Police video of innocent people being questioned, and the let go? Short of the Rodney King video, and perhaps a few other examples of Police misconduct, all captured by third parties, by the way, we've essentially been trained to expect Police video to demonstrate guilt.

If you tune in to the local news, and there is Police video being run as part of any story, it almost always shows the Police arresting someone who should be arrested. DUI drivers are shown as staggering, and if there's audio, you hear them slurring their speech, or sounding otherwise drunk.

In DUI cases, it is not uncommon for me to be asked by a new Client, before I ever even get that far, about the Police video. "Can you get it? I'd like to see it."

In-car Police video has the potential to derail a DUI prosecution more than any other single piece of evidence. Admittedly, those examples of cases where the Police video contradicts the Officer's written version of events aren't very common, but for an investment of about $50, it amounts to a small price that can result in a huge payoff.

It is important to note, however, that Police are not required to have video-equipped Police cars. And even if the car has such equipment, there is no Law requiring that it be operational.

In the real world, Police video can really impact 2 major areas of a DUI arrest: The initial Traffic Stop, and the Field Sobriety Tests.

Continue reading "The Role of Police Video in a Michigan DUI Case - Part 1" »

In part 1 of the article, we began our examination of Embezzlement cases. We looked at a few typical scenarios that usually precede, if not announce the coming of an Embezzlement charge, and some of the emotional and psychological elements that are typically present.

In this 2nd part, we'll pick up by reviewing some of the more, practical, real-life legal considerations and steps one can expect as an Embezzlement case proceeds through the Court system.

Most Embezzlement cases are Felonies. If they weren't already scared enough, when the person hears about the potential to go to Prison for a certain number of years, they freak out. For whatever reason, the vast majority of Embezzlement cases I see involve amounts of money well over $10,000, and many involve amounts involving hundreds of thousands of dollars.

When they think about someone who steals a wallet stuffed with hundreds of dollars being thrown in Jail, a person facing an Embezzlement charge, where the amounts involved are umpteen times higher, rather naturally wonders they're prison-bound.

Then I'm hired, and the first thing I tell the Client is that there won't be any Prison. Most of the time, these cases can be worked out with no Jail. This, I explain, is what you're paying for.

As with all Felonies, Embezzlement cases follow a certain protocol. There is an Arraignment, a Preliminary Examination, a Circuit Court Arraignment and First Conference, followed by a Pre-Trial conference. Sometimes, multiple Pre-Trial conferences are held.

Eventually, unless there is some way to beat the case, a Plea-bargain is produced. This will have several benefits to the Client beyond just sounding good. A reduced charge can change the Sentencing outcome, and can be largely responsible for avoiding any kind of Jail. Beyond that, it does, to some extent, soften the impact to the person's Criminal Record.

Continue reading "Facing an Embezzlement Charge in Macomb, Oakland or Wayne County - Part 2" »

Recently, in my Criminal Practice, I have noticed a fairly significant increase in the number of Embezzlement cases for which I am hired. Most often, when I Represent someone facing an Embezzlement charge, I come to find that they are deeply remorseful for what's happened, but often felt like they fell into some kind of trap. This article will examine the "what's what" of an Embezzlement charge.

Most of these cases begin with a phone call. Usually, a person will be contacted either by a Police Detective, or a Loss Prevention Officer from the Company involved. When Loss Prevention calls, they usually schedule an appointment for the person (most often an employee) to come in and talk. When a Police Detective calls, he or she will typically ask the person to come in a give "their side" of the story. Sometimes, however, they will be a bit more forceful, and indicate that if the person does not come in, they will get a Warrant.

Often, but not always, I'll be contacted by someone before they call the Police Detective back. They're afraid, they have a good idea why they're being called, and the thought of going into an interview room in the Police Station doesn't sound too inviting. Yet, they wonder, is there a way that I might still be able to avoid a charge? What if I just keep quiet, and don't say anything? Maybe they need me to admit to something to build their case.

While I understand that, at least in theory, there is probably an exception out there, in my 20+ years of Practicing Law, I have never known a Detective to call someone when they didn't already have enough information to get a Warrant (remember, a Warrant is based upon "probable cause") charging the subject with the crime. The reason they call is to simply "wrap up" the loose ends of the case, which essentially means get a confession. The kind of Warrant we're talking about here is an Arrest Warrant, meaning that the Police are directed to apprehend a person and bring them to Court to face the charge or charges.

When I'm contacted by someone wanting to know what to do next, I will usually call the Detective myself. My job, of course, is to protect the Client. Still, in the 20+ years I've been doing this, I've never spoken with a Detective who didn't have enough information to get a Warrant. Thus, I inform them that my Client won't be coming in to say anything about the case, but I'm also very diplomatic in telling them that, once they get the Warrant, I'll present the Client for processing. This means being booked and printed, as well as being Arraigned by a Judge or Magistrate. The whole goal of this is to make sure the Client will be Arraigned and released upon either a Personal (meaning they need no money) Bond, or get one that they can post right away. This is most often done through my dealings with the Detective, and the establishing of a good relationship with him or her.

In other words, all that unpleasant and scary stuff is pre-arranged, and the person doesn't have to worry about being stuck in Jail and making friends with their new cellmate.

Continue reading "Facing an Embezzlement Charge in Macomb, Oakland or Wayne County - Part 1" »

In part 1 of this article, we began examining the question "Do I need a Lawyer for this?" in a DUI Case. We looked at a few reasons why a person might really consider going it alone, and we examined a few risks to going into a DUI case unrepresented. In this 2nd part of the article, we'll take a closer look at what a good, qualified DUI Lawyer brings to the table in a DUI case, and why not having that kind of help places someone at a distinct disadvantage. We left off examining the role of the PSI (Pre-Sentence Investigation) and the mandatory Alcohol Assessment and how the outcome of those processes essentially results in the "blue-print" for what's going to happen to someone in a DUI Case.

If a person can have the help of a Lawyer who knows every facet of the PSI process, and fundamentally knows what specific information is being sought in an Alcohol Assessment Test, and how to score as low on it as possible, then what will happen to them in a DUI Case will be much better (meaning lenient), all other factors aside, than would be the case if they tried it alone.

The Alcohol Assessment Tests all focus on five "traits" or "markers" used in identifying an actual or potential alcohol problem:

1. Biological History,

2. Social Comment,

3. Memory Integrity,

4. Social Conflict, and

5. Effects Threshold.

Learning the meaning and application of these terms is the first step in preparing to produce a good (or low) score on whichever test is administered. And a good DUI Lawyer will have an active, working knowledge of these principles, and be in a position to teach the Client. Unfortunately, too few of those who style themselves as DUI Lawyers know the first thing about any of this. This should be a important consideration as someone "shops" around for a Lawyer.

In terms of "outcomes," a person who is properly prepared (and in my Office, this takes about 2 hours) for an Alcohol Assessment Test will usually be able to score the lowest number of points possible. There will always be some points assessed, because one of the questions asked by any test is whether or not the person taking it has ever been Arrested for any Alcohol-Related Traffic Offense. You already know the answer to that one.

What's more, some of the questions are "better" answered in a way that seems counter-intuitive. In other words, the answer that might first appear to be "common sense" may, in fact, add points to a person's score. These tests are designed to diagnose either an actual or potential alcohol problem in someone who might be very resistant to that idea. In other words, these tests take into account that a person may try to "fool" it.

Continue reading "Do I Really Need a Lawyer for a DUI in Metro-Detroit? - Part 2" »

As a DUI Lawyer, I get calls on a daily basis from people who've recently been Arrested for a Drinking and Driving Offense. One goal of the Drunk Driving section of this blog has been to address the questions that I am frequently asked. Lately, and no doubt because of the tight economy, a number of people have candidly asked "Do I need a Lawyer for this?" This article, divided into 2 parts, will examine that question.

Rather than go in the predicable direction of listing all the things that can go wrong without a Lawyer, I thought we'd start by looking at a few aspects of a typical DUI case that can actually work out favorably even without Legal Representation. Then, we'll examine exactly what a good DUI Lawyer can and will do in every case to make the outcome better than if a person had gone forward unrepresented by a Lawyer.

For the uninitiated, even the steps in a DUI Case are mysterious. In practice, however, many of those who get to the point of asking whether or not they can proceed without a Lawyer are generally smart individuals who have done their homework. They've often read all kinds of articles (including mine) about DUI's, and are somewhat familiar with the steps in a typical DUI case. Here are a few things they often learn that supports their idea of going it alone:

1. Most DUI cases are resolved by a Plea Bargain, and without any kind of Trial.

2. Some Prosecutors will not restrict the offer of a Plea Bargain to only those individuals with a Lawyer.

3. Virtually no one winds up doing Jail time in a 1st Offense DUI case.

Looking at those facts alone, the idea of spending a few thousand dollars on a Lawyer might change from an automatic response after a DUI Arrest, to something that needs a bit of consideration before a decision is made.

In terms of risks in proceeding unrepresented, let's look at a few:

1. Some Prosecutors will not offer the same quality Plea Bargain, if any, to an unrepresented person.

2. A non-Lawyer might miss a critical problem in the Evidence that could be trouble for the Prosecutor's case.

3. The Judge may not be very enthused dealing with someone choosing to "play Lawyer."

These considerations are enlightening, but do not answer the question "Do I need a Lawyer for this?"

Continue reading "Do I Really Need a Lawyer for a DUI in Metro-Detroit? - Part 1" »

This is the final article in my series about DUI Cases in local, Macomb County District Courts. I have saved this Court for last because, in all truth, it's about the toughest of all Macomb County District Courts on DUI cases.

Located on 11 Mile Road, at Jefferson, the St. Clair Shores (or, as its commonly called, the "Shores") District Court is run by 2 Judges, Cragen Oster and Mark Fratarcangeli. From my perspective, as a veteran DUI Lawyer with over 20 years' experience, these Judges represent the "younger" and more modern trend. Technologically savvy, this is not the same 40th District Court of a decade earlier.

Both Judges are the very definition of fairness and kindness. Even though this Court tends to hit a DUI Defendant harder than most in the County, you'll NEVER meet anyone who claims either of these Judges treated them unfairly, or was anything less that kind and polite.

Judge Craigen Oster has an ability to really converse with those who come before him. And he does that. Rather than just "pronounce" a Sentence, or simply tell a Defendant "This is what I'm going to do," Judge Oster tries to engage the person in some dialogue in the hopes of having them come to a better understanding of the need to change their behavior to avoid further problems. Ask anyone who has had him as their Judge, and they'll inevitably say that he's "a nice guy."

Judge Mark Fratarcangeli is equally "a nice guy." However, he is a strong believer in being proactive in alcohol and drug cases. Perhaps more than any other Judge anywhere, he has a stronger "nose" to sniff out BS. In other words, he's heard it all, but in a very careful and practical way, tends to operate in the belief that, whatever a person says, or promises, its what they ultimately do that matters. In that regard, he embodies the old adage that "the proof is in the pudding."

And this is partly what I meant when I noted these Judge's are more part of a "modern trend." After all is said and done, I am a DUI Lawyer. I help people facing DUI's get out of that bad situation with as little grief as possible. This means I will always find a more lenient outcome, or one with less "stuff" like Classes, Counseling and Testing, to be better. To me, the less that happens to a DUI Defendant, the better.

Continue reading "St. Clair Shores DUI cases - the 40th District Court" »

In this 8th, and next-to-last article in my series about DUI cases in local, Macomb County Courts, we'll take a look at the 38th District Court in Eastpointe. Formerly a "Municipal" (meaning part-time) Court, the caseload in Eastpointe had long ago grown to the point that a full-time District Court was needed.

Since this article is an overview of the Court, rather than the DUI process in general, anyone seeking more information about DUI's should read the Drunk Driving section of this blog, and scroll down, past the local Macomb County Court ratings, and read those articles which apply to their situation.

Located on Nine Mile Rd., the 38th District Court anchors the southernmost part of Macomb County. Although it may be a bit away from the County seat in Mt. Clemens (where my Office is located), the Eastpointe Court is solidly "Macomb County," and that's a good thing.

Elected to the Bench in 2009, the Court is headed by Judge Carl Gerds. Like Judge William Hackel in the 42-2 District Court in New Baltimore, this guy is a gift. Judge Gerds is a "real guy" in every sense of the word, and you couldn't find a someone with a bad thing to say about him if you spoke to every person on the planet. Intelligent, and personable, Judge Gerds took the Bench after a long and successful career as a Private Lawyer. His down-to-earth approach allows him to speak to those Appearing before him as real, regular people. In other words, he'll never "talk down" to anyone.

Judge Gerds, like Judge LeDuc in the 42-1 District Court in Romeo, tends to be "fatherly" in his approach to DUI Defendants. This means that beyond being intelligent and nice, but firm, he actually and obviously cares about those that come before him.

His kindness, however, should not be confused with any lack of resolve. Anyone who Violates a term of his Probation will get a quick lesson in Jail etiquette.

In a 1st Offense DUI, Jude Gerds, like most of the Judges that make being a Macomb County Lawyer such a plus, is more than willing to give anyone a break and chalk things up to a misjudgment. This means a 1st time DUI Offender can, if their case is handled properly, not only avoid Jail, but either avoid Probation altogether, or at least avoid difficult "Probation from Hell" and even wind up on Non-Reporting Probation.

2nd Offense DUI's are not quite so easy. When a person appears before Judge Gerds for a DUI 2nd Offense, they had better have been adequately prepared by their Lawyer before they ever even walk into Court. If that's done, however, a DUI 2nd can be worked out to not only avoid Jail, but to keep the terms of any Probation manageable.

Continue reading "Eastpointe DUI Cases - the 38th District Court" »

In this 7th of my 9-part series about DUI Cases in local, Macomb County District Courts, we'll turn our attention to the County's largest District Court, the 37th District Court in Warren. We'll also include a look at the 37th District Court's "outpost" in the City of Centerline. Because the same Judges as the Warren Court staffs it, the Centerline Court is basically the same thing in a smaller, different building.

Any discussion of the Warren Court must begin by noting how busy it is. While every other Court in Macomb County has a parking lot, the Warren Court has a parking structure. Usually, the busier a place, the less efficient it is. Not so in Warren. Despite its huge caseload, this Court maintains the feel, at least for those of us local, Macomb County Attorneys, of a much smaller community Court.

There are 4 Judges in Warren, and despite being rather diverse in personality type, they are, as a group, amongst the nicest around. You will not find a Macomb County DUI Lawyer who has a bad thing to say about handling DUI Cases in Warren. Except for the fact that, because of the large caseload, things can, understandably, get bogged down a bit (someone has to be first, and someone last...), this Court is always amongst every Lawyer's favorite. But it's also a great place to be, if you have to be anywhere, to deal with a DUI. And as I've noted before, my ratings in this series is based upon how I'd feel as a DUI Defendant, and not as a Lawyer, if I had to face a DUI in any particular Court. In other words, there are Courts I can deal with that are efficient and pleasant and prompt, but aren't so easy on the Client. That's great for me, but I'm paid to take care of the Client, so it's how easy or tough things are for them that is the measure of my ratings.

Anyone facing a DUI, whether in Warren, Centerline, or anywhere else, should scroll through the Drunk Driving section of my Blog, past the Local Court information, and read the articles that are relevant to them.

Let's take a look at the 4 Judges of the 37th District Court:

Continue reading "DUI Cases in Warren and Centerline - the 37th District Court" »

As I continue this series about DUI cases in local, Macomb County District Courts, we'll turn our attention to the cities of Roseville and Fraser. All DUI cases brought in either Roseville or Fraser are heard and handled in the 39th District Court on Gratiot, in Roseville.

Getting a DUI is no fun. Anyone facing one should take the time to at least read my other articles about Drunk Driving. Winding up in a hard-line, unsympathetic Court only feels like having insult added to injury. And while there is no way to turn back the hands of time and undo a DUI Arrest, at least having the case land in the 39th District Court is the first light at the end of the tunnel. This is about as pleasant and decent a Court as you'll find anywhere.

There are 3 Judges presiding in the 39th District Court. They are far from being clones of each other, but despite their differences, there is really no reason to prefer any one Judge over another. In other words, their Sentences in DUI cases are pretty well consistent, and pretty fair, all things considered.

Judge Cathy Steenland has been on the Bench for about 8 years. In that time, she has proven to be one of the most capable Judges when it comes to relating to and speaking candidly with those that appear before her. Her temperament is always favorable. Sure, there is always some moron who can test a Judge's patience to the limit, but once that person has been dealt with, Judge Steenland has an unmatched ability to clear her head and smile at the next person up. And in that regard, you'll never meet anyone who claims to have been treated harshly, or unfairly by her.

Part of that ability to speak candidly, however, is the ability to call someone when they are shoveling the B.S. her way. Judge Steenland's pleasant disposition is not a product of naivete. Instead, she converses with those in front of her, and usually passes down a Sentence that seems more the product of an agreement between her and the Defendant rather than some Royal Decree read to some poor subject.

For all of that though, as with most Judges, any breaks handed out need to be appreciated, and "earned" in the sense that the Defendant stays out of trouble while on Probation. Pick up a new case while on Probation, or start testing positive for Alcohol or Drugs, and you'll get a kind smile along with a Jail Sentence.

It is possible, if things are done right, to avoid Reporting Probation, or even any kind of Probation at all, in a 1st Offense DUI. That's not to say that such a deal is out there for everyone, but it can be worked out in the right cases.

Continue reading "Facing a DUI in Roseville or Fraser - the 39th District Court" »

In this installment of my series about DUI in local, Macomb County District Courts, we'll turn to the 42nd District Court 1st Division in Romeo. Handling DUI cases from Armada, Armada Township, Bruce Township, Memphis, Ray Township, Richmond, Richmond Township, Romeo and Washington Township, this Court is most often simply referred to as "Romeo." Given the laundry list of Municipalities that in covers, we'll adopt that abbreviation. Thus, when we talk about the "Romeo" Court, we mean the 42-1 District Court in Romeo, but can be referring to a case arising in any of the Cities or Townships mentioned above.

Depending on where you live, this Court can either be really local, or really far. Located on 33 Mile Rd., it represents the northern-most reaches of geographic Macomb County. The Court itself is rather modern. The Court Staff is friendly, and really brings to mind a less big-city, and a more helpful, small-town type of character.

The Presiding Judge, Denis LeDuc, came to the Bench as a long-time veteran Macomb County Lawyer. Smart and hardworking, Judge LeDuc's intelligence and work ethic is only exceeded by his actual concern about those who appear before him. This man really wants to help people.

For anyone facing a DUI, that can represent either side of the coin, and be either a good thing, or a bit of a pain.

If a person is properly prepared and represented in a DUI case, it is possible to emerge from this Court, at least in a 1st Offense Case, with only the payment of Fines and Costs, and no Probation or any other kind of follow-up. On the other hand, a person not well represented or prepared, or whose case presents difficult circumstances (like being a DUI 2nd Offense), may wind up on some rather intense Probation, and be subject to Classes, Treatment, and Alcohol and/or Drug Testing ranging from infrequently to almost daily.

Like most Judges, Judge LeDuc tends to follow the written Recommendation of the Probation Department. In other blog articles, I have explained the DUI process in detail, so here it will have to suffice to simply observe that anyone facing a DUI must, prior to being Sentenced by the Judge, undergo a mandatory Alcohol Assessment Test. This is required by Michigan Law, and is administered by the Probation Department for whatever Court is Hearing the case. As part of this process, the Probation Department schedules an interview with the person, and collects some rather detailed biographical information about them. At some point there is both an in-person interview, as well as the taking of the actual Alcohol Assessment Test. This is a written test, which is "graded" by a numerical score. The higher a person scores, the worse they've done, whereas the lower they score, the better for them.

Continue reading "DUI in Armada, Armada Township, Bruce Township, Memphis, Ray Township, Richmond, Richmond Township, Romeo or Washington Township - The 42-1 District Court in Romeo" »

In this article, which continues the series about DUI cases in local, Macomb County District Courts, we'll examine the 41A District Court in Sterling Heights. This is the "Sister-Court" to the subject of the last article, the 41A District Court in Shelby Township. Unlike Shelby, the Sterling Heights District Court covers just one City: Sterling Heights.

The 41A Sterling Court is staffed by 3 Judges. In this Court, which one of those 3 Judges winds up handling a 1st Offense DUI case can make a noticeable difference in how things play out. This is less so in 2nd Offense Cases. First, however, let's talk about some general similarities in 1st Offense DUI Cases.

In most 1st Offense DUI cases, the 41A Sterling Court can honestly be considered one of the best Courts to have to deal with such a Charge. With proper preparation and handling, many of the realistic consequences of a DUI can be avoided. When I say realistic consequences, I mean those things that are likely to happen in a DUI case, as opposed to those things that theoretically can happen. Let me explain:

In a 1st Offense DUI, a person can, theoretically, get up to 93 days in Jail. That never happens. Never. Even in the toughest Court I know of, in Oakland County, a person might get hammered with a week or so in Jail in a 1st Offense DUI. Thus, 93 days in Jail is not a realistic consequence in a 1st Offense DUI case.

On the other hand, if the Probation Department, after scoring the legally required alcohol assessment test, recommends to the Judge that a series of Classes, or some kind of Treatment is warranted, a person can pretty much plan on that being Ordered. Thus, Classes and Treatment are realistic consequences in a 1st Offense DUI case.

If a person is properly prepared from the very beginning, then many, if not most of those potential Classes and/or Treatment options can be avoided. This means no Jail, and perhaps even no (or fewer) Classes. This is where the assignment of a Judge can make a difference.

I like Practicing in this Court, and I like each of the 41A District Judges. They are well-qualified, experienced Judges. Each is personable, intelligent, decent, and genuinely caring. In other places, finding these qualities in 1 out of 3 Judges would be lucky, but to find it in each of the 3 here is a comparative blessing. Let's take a look at each:

Continue reading "DUI in Sterling Heights - the 41A District Court Sterling Division" »

The 41A District Court in Shelby Township will be the subject of this third article in my series about DUI cases in local, Macomb County District Courts. There are two 41A District Courts: The subject of this article, in Shelby Township, and it's counterpart, in Sterling Heights. The Shelby Division Hears cases arising in Utica, Macomb, and, of course, Shelby Township.

As a Lawyer who handles DUI cases there on a regular, ongoing basis, I know this Court as well as anyone, and certainly count it amongst my favorite. To be clear about that, as a DUI Attorney, I have a greater liking for those Courts where the outcome is more favorable (meaning more lenient) for my Client. This is definitely one of those Courts.

Located in a building much too small for its needs, the Shelby Court has been the subject of a rumored new building for years. Overseeing this Court is Judge Douglas Shepherd. Judge Shepherd was elected to the bench a number of years ago, upon the retirement of longtime Judge Herman Campbell. Judge Shepherd probably takes the cake in terms of being a nice man. Having been in Private Practice before becoming a Judge, and having done essentially what I do, Judge Shepherd understands the basic expectation involved in hiring a DUI Lawyer: "I will pay your Fee, and you go and make things better for me." More quiet than boisterous, it isn't hard to imagine him having pursued a career in ministry. In DUI cases, however, his forgiveness is earned, not just granted.

Judge Shepherd, like most Macomb County District Court Judges, actually requires very little of a 1st time DUI Offender who gets Probation. In fact, he pretty much expects nothing more of a DUI 1st Offender than staying out of trouble. Don't get in any more trouble, and all will be well.

A DUI Defendant who Violates his Probation, however, especially by picking up another charge, particularly another DUI charge (and that happens more than you think), will absolutely get locked up.

Despite that, a 1st, and even a 2nd Offense DUI case can be resolved quite favorably in this Court, meaning no Jail. But there's more to any DUI case than just avoiding Jail. Getting slammed with an endless diet of Classes, Counseling, Community Service, Reporting, Testing, and the like can wear a person down rather quickly. In the 41A Shelby Court, very much like in the New Baltimore District Court, most of these annoying and inconvenient consequences can be avoided if the right steps are taken.

In terms of Fines and Costs, the 41A Shelby Court is close to the middle-of-the-road, perhaps even a bit more toward the less, rather than the more expensive side.

In a 1st Offense DUI, it is possible, with some good work, to avoid any kind of Classes, Counseling, and even Probation. In a 2nd Offense DUI, and again, with the case handled properly and the right steps taken, it's possible to limit the fallout to little more than a year's Reporting Probation.

Continue reading "DUI in Shelby Twp., Utica, or Macomb Twp. - The 41-A District Court Shelby Division" »

In this second article in my series about DUI in Macomb County District Courts, we'll be turning our attention to the 42-2 District Court in New Baltimore. Often referred to by Lawyers and those in the Legal community simply as "New Baltimore," the 42-2 District Court handles cases arising in New Baltimore, Chesterfield Township, Lenox Township, and New Haven.

Since this article is about the Court, anyone seeking more information about the DUI process should read those articles in the Drunk Driving section of my Blog which are relevant to their situation.

Located in another beautiful new building, this multi-jurisdiction Court is presided over by Judge William Hackel III. If the name sounds familiar, it should. His Father was longtime Macomb County Sheriff William Hackel, and was succeeded by his brother, Mark Hackel, who will become the County Executive on January 1, 2011.

Judge Hackel was appointed to fill the vacancy created by the retirement of former Judge Paul Cassidy. I have to admit that when I heard the name of the new Judge, I wondered if he might not be a bit too pro-law enforcement. Deciding to keep an open mind, I entered his Court that first time hoping for a fair shake.

I have left that Court every time since grateful for whatever alignment of the stars precipitated Judge Hackel's appointment. To be blunt, this guy is awesome. If he's pro-anything, it's pro-fairness. You'd have better luck finding Elvis alive and well rather than anyone who has a bad thing to say about this Judge. Beyond being kind, and fair, his approach from the Bench is that of a regular guy. He talks to people like people, not things, or merely "Defendants." While clearly a highly intelligent man, Judge Hackel feels no need to flex his intellectual muscle merely for show. He is truly a rare bird in combining such assets.

On top of that, this Court generally imposes the most reasonable Fines and Costs anywhere in Macomb County

That's not to say he's any kind of pushover. He'll give anyone a fair break. But if you wind up walking out of his Court on Probation, and come back in for a Violation, you'll be led out the back door, just as you'd expect.

In DUI cases, Judge Hackel embodies the general approach of most Macomb County Judges that a 1st Offense can be as much a lapse in Judgment as anything else. In 2nd Offense cases, he likewise adopts the position that such a situation is generally evidence of a drinking problem. Rather than just toss someone in Jail, however, if the Defendant and Lawyer take the right steps, Jail can be avoided.

In the right case, this Court can produce what a 1st time DUI Defendant would consider the very best outcome possible. I have handled cases where the final outcome was the imposition of ONLY fines and costs, with no Probation or anything else required. No one ever walks out of this Court feeling that they were (at least undeservedly) "hammered."

Final Verdict: The Very Best Detroit-area Court in which to face a DUI

If I was facing a DUI, and knowing what I know, here's how I'd rate the 42-2 District Court from 1 to 5, with 1 being the worst, and 5 being the best:

5.0 for a First Offense.

5.0 for a Second Offense.

This is the first in a series of DUI articles focusing on Macomb County District Courts. To begin, I think it's fitting for me to explore my "home" Court, the 41B District Court, which handles cases arising in Clinton Township, Harrison Township, and Mt. Clemens.

Housed in a beautiful new building and staffed by 3 Judges, Sebatian Lucido, Linda Davis, and as of Jauary 1, 2011, Carrie Fuca, the 41B District Court is a model of efficiency. For those facing a Drunk Driving (DUI), this is a solidly "middle of the road" Court, being neither especially lenient, nor overly harsh.

On the other hand, the 41B District Court tops them all in terms of being expensive. Fines and Costs here are always on the high end. No one gets out of this Court inexpensively. Given that it's not a particularly "harsh" Court, and given the admirable level of consistency in that regard, I think it's better to pay a little more and walk out the front door after a DUI, rather than get a great deal on the Fines and Costs, along with some time in Jail to savor that bargain.

As a DUI Attorney, I am lucky to have the 41B District Court as my "home" Court. I'm often in this Court 3 times a week, so my observations about it are based upon considerable experience. Frankly, if a person is unlucky enough to get a Drunk Driving, having the case land here is at least a decent break.

Judge Sebastian Lucido worked in Private Practice, like me, before being appointed to the Bench. Quick-witted and very intelligent, his natural disposition is overwhelmingly kind, and it is obvious to anyone paying attention that he tries very hard, and is uniformly successful at being fair. He is quick to give someone a break. This is a bonus for anyone facing a DUI. In 1st Offense DUI cases, he is always open to the possibility that a person has simply fallen victim to a lapse in good judgment. In Second Offense DUI Cases, he won't buy that excuse (nor will any Judge, for that matter), but he is similarly receptive to working with someone who is ready to address their problem and take care of getting themselves on the straight and narrow. This means that if the right steps are taken, Jail can be avoided.

Judge Linda Davis was a Macomb County Prosecutor before being appointed to the Bench. She was, in that role, always firm, but fair. Her appointment to the Bench was made at a time when the 41B District Court had been having problems. She came in to clean things up, and beyond doing that in short order, she was able to transform the Court into one of, if not the most efficient Courts in the County. Perhaps her biggest attribute is that solid sense of fairness. She is tough, and not in the sense that she is harsh, but rather that she will tell it like it is. She has the ability to assess a situation involving alcohol or drugs, quicker and more accurately than any other Judge around, She will accept no BS, and if presented with it, will call the person on it. Her raw intelligence would make her an ideal candidate for any important position at a national level. It takes some work, but even in 2nd Offense DUI cases, a person can walk out the front door of her Courtroom, and not be taken away through the back.

Continue reading "DUI Cases in Clinton Township, Harrison Township, and Mt. Clemens - 41B District Court" »

This article will be about what really happens when a person gets a 1st Offense OWI (DUI). I have plenty of articles about the legal and strategic considerations involved in dealing with this charge in the Drunk Driving section of this Blog. Beyond that, there are plenty of other sites that tout the possibility of challenging every bit of evidence obtained and every step taken in a DUI case (for the price of a King's Ransom) in the hope that the whole case can be dismissed. Given the statistical unlikelihood of that, I thought it's time to talk about what the person facing the DUI can really expect to go through. Again, this article will focus much less on the legal implications, opting instead to examine the practicalities and realities that lie ahead.

The reader facing a DUI has undoubtedly dealt with a number of these realities so far: Being put in the Police car, being taken to Jail, taking the Breathalyzer test, undergoing the Booking and Printing, and finally being released. From there, most people have to go and get their car back.

Most of the time, unless there is a sober person in the car with a valid License who can drive it away, the Police will have the DUI Driver's car towed to an impound yard. In some cases, the County Prosecutor will put what can essentially be called a "hold" on the car, and sets a price for the Driver to get it back. When that happens in Macomb County, for example, the fee is usually $900 in a 1st Offense DUI, and $1800 in a 2nd Offense DUI. Even when there is no Prosecutor's "hold" to deal with, there will be a towing and storage charge that needs to be paid to get the car back.

Of course, those first few hours back at home are stressful. Your Driver's License has been taken, and instead you have this "paper License" called a Michigan Temporary Driving Permit. The car is in the driveway or garage with a paper plate instead of the old metal plate. If it isn't, it's sitting in some storage yard waiting to be picked up. When there's no Prosecutor's "hold" on the car, storage charges accumulate by the day. The location of the car is usually indicated in the papers the Driver receives from the Police upon their release.

There are plenty of those papers, too. Usually, but not always, a person is given a Ticket (Citation) for there DUI. Then there's this large, pink sheet that looks like a big store receipt called an "Evidence Ticket" that was generated by the Breathalyzer machine.

If a person refused to take a Breath Test, they most likely will have had their blood drawn. In those cases, they're sent home with a copy of the Warrant signed by a Judge or Magistrate allowing their blood to be taken, and another paper called an "Officers Report of Refusal to Submit to Chemical Test."

Continue reading "Dealing with a 1st Offense DUI (OWI) Case in Macomb, Oakland or Wayne County - Part 1" »

In previous Blog articles, I have covered the broader subject of Driving While License Suspended/Revoked/Denied. We have examined how each of those Offenses is part of the same Michigan Law. We have examined how DUI's can eventually lead to Driving While License Revoked charges, but we haven't really focused in as much on the bread and butter of all Traffic Offenses, the simple Driving While License Suspended.

This article will focus specifically on Driving While License Suspended (DWLS), and instead of a wider, more inclusive focus, we'll narrow in on what is becoming, by far, the most common Criminal Traffic Offense being charged, and how an ever-increasing number of these charges are the result of unpaid Driver Responsibility Fees.

The term "bread and butter" really has multiple meanings here. In terms of revenue, a DWLS brings into Court the lowest severity Criminal Defendant on the planet. Many DWLS Defendants have no prior Criminal Record, or, if they do, just have a few Driving Offenses upon it. They are typically non-violent, not dangerous, and often accurately describable as a "creampuff." They come to Court scared, and are more than willing to part with money to avoid any kind of Jail sentence.

From the Police perspective, these "creampuffs" are the least threatening (although every Traffic Stop does present a certain threat level to a Police Officer) and usually the most easily managed of all encounters.

From a Defense Lawyer's point of view, these Clients are typically amongst the easiest to deal with. I'm not likely to have a phone consultation with some hardhead who begins by saying "I got a Suspended License charge, and I want to sue the Police for arresting me because they never read me my rights."

Instead, I'll often speak with someone who is a bit of a "Nervous Nellie" and whose first concern is, in fact, staying out of Jail. In most cases, staying out of Jail is so much more likely than getting thrown in that it's a waste of time to dwell too much upon it.

Let me repeat that, and be clear: In most DWLS cases, it is easily manageable for a person to NOT be put in Jail. Even in those cases where a person has racked up a pretty bad Driving Record, and owes a King's ransom in Driver Responsibility Fees, and seems a million miles away from being anywhere close to having, or even being eligible to have their Driver's License reinstated, with some diligent Legal work, they can walk out the front door of the Court and avoid Jail.

And that is NOT a set-up for some outrageous Legal Fee, either. A DWLS case should NEVER cost more than about $1600 total. Of course, whatever Fee a person pays is going to depend on any number of factors, including how far the Lawyer a person hires is going to have to travel.

Continue reading "Driving on a Suspended License (DWLS) in Macomb, Oakland and Wayne County" »

In part 3 of this article, we looked at how merely staying out of Jail in a "Delivery" case was important, but by no means the only consideration in the proper handling of such a charge.

In this 4th and final installment, we'll conclude by briefly looking at the least common of the "Delivery" charges, those involving the "Manufacture" of a Controlled Substance. Then, we'll talk a bit about what a person should look for as they seek good Legal representation for one of these charges, and what they should keep in mind as they consider which Attorney to hire.

Technically speaking, a "Delivery" charge is called "Delivery/Manufacture" of a Controlled Substance. As we observed earlier, most actual "Delivery" charges involve hand-to-hand "buys" by an undercover Police Officer.

When "Manufacture" is involved in a "Delivery/Manufacture" charge, it almost always involves Marijuana plants. I have seen cases where the Police were at a residence for an unrelated reason, and saw a Pot plant growing in the house. Now I'm not some horticulturist, but even I know that the UV rays from sunlight, or at least from growing lights, are needed to create the active ingredient in Marijuana, THC.

Still, that single plant, even if it is "impotent" cannot be grown (absent certain, and still unclear "Medical Marijuana" situations) without violating the law. Even if a person is growing an impotent Weed plant indoors with no intention of ever "harvesting" it (because it is impotent anyway), the mere act of possessing that plant is enough to give rise to the "Manufacture" part of the "Delivery/Manufacture" Law. In other words, that plant, which might only weigh a few ounces, will create a ton of problems.

Of course, I have also seen cases where there has been cultivated growing, those cases ranging from a few plants for personal use to what can be described as a bumper-crop in a veritable indoor farm.

Once in a while, a person is found to be making something like Meth, or Ecstasy, but in truth, I see very few of those cases.

The point is that whether it's 1 impotent plant or 1000 high-grade, cultivated plants, merely possessing it or them can and will give rise to a "Delivery/Manufacture" charge.

Continue reading "Controlled Substance Delivery Charges in Macomb, Oakland, and Wayne County - Part 4" »

In part 2 of this article, we began examine "Delivery" of a Controlled Substance charges. We concluded our examination by noting that, in most cases, and with some good Legal work, a person facing such a charge can be kept out of Jail (or Prison).

Beyond just staying out of Jail (or Prison), however, there are a host of other considerations that might escape the mind of a nervous person.

I have noted in other aricles on this Blog that when someone is really facing a Jail Sentence, they will often swear to do anything and everything they have to in order to avoid getting locked up. I have little doubt that at the time, as they look down the barrel of a real possibility of getting locked up, they mean it. However, in my 20 years of doing this, I also realize that once the Sentence has been passed down, and there is no Jail, it takes a matter or hours, and not even days or weeks, for the person to start wondering if they could have done any better.

In other words, even though "Probation from Hell" is a better outcome than Jail, that "Probation from Hell" gets real old, real quick.

Beyond, then, simply keeping a Client out of Jail, it becomes an equally important part of my focus to help the Client avoid that "Probation from Hell," meaning, in essence, Probation with too many conditions.

Exactly how that's done would take a series of articles in itself. In the end, it means I spend the necessary hours with my Client preparing them for their Probationary interview, part of what's known as the PSI, or Pre-Sentence Investigation.

By law, in any Felony case, and in any number of Misdemeanor cases, the Law requires that, before the Judge Sentences someone, they undergo a "Pre-Sentence Investigation," conducted by the Probation Department. The result of this process, which always includes an interview by a Probation Officer, and often involves the administration of a Substance Abuse Evaluation (a written test that ends up getting a numerical score, the higher of which is worse than a lower score), is a printed Recommendation to the Judge advising him or her what the Sentence should be, from Jail or Prison to Probation, Tether, Rehab, Classes, Testing, or whatever is felt necessary to help the person not become a repeat offender.

With proper preparation, the Client can avoid lots of Conditions. In other words, Rehab might be avoided in favor of a Drug Education Class. Tether might be avoided in favor of more frequent urine testing. The point is to not have to do anything that can be otherwise avoided. It's a long, involved process, but the few hours up front needed to do it right will pay huge dividends later, when Rehab, Classes, or whatever is NOT ordered, and lots more hours (and money) are saved.

Continue reading "Controlled Substance Delivery Charges in Macomb, Oakland, and Wayne County - Part 3" »

In part 1 of this article, we observed that there are 2 kinds of Delivery charges: Those involving an actual "Delivery" (or "Manufacture") of a Controlled Substance, and those which allege "Possession with Intent to Deliver."

As we noted, someone facing an actual "Delivery" charge, especially one stemming from a hand-to-hand sale, or sales, is in particularly hot water. Let's talk about those actual Delivery charges.

Delivery and/or Possession of different Drugs carry different penalties. Delivery of Cocaine and Delivery of Ecstasy carry a much more severe penalty than Delivery of Marijuana. In addition, the amount, or quantity, of Drugs Delivered, Possessed, or Possessed with Intent to Deliver affects the severity of the potential penalty.

The majority of Delivery cases that I handle are in Macomb County, where my Office is located. Most of them involve the Delivery of a smaller (as opposed to a larger) quantity of Drugs. In Cocaine cases, this means under 50 grams. In Marijuana cases, it often involves a few pounds or less. In Ecstasy cases, it often involves 100 or fewer "hits."

Most often, by the time I am contacted, the person has already been approached about working with the Police. They'll have questions for me about whether or not they should do it. As a general rule, I do NOT advise "working" with the Police in most cases.

If a person, because of a combination of factors, such as their prior Record and/or the amount of Drugs involved in the new case, seems likely to be sent off to Prison, then we'll consider our options to avoid that.

In the majority of situations, no matter how dire it might seem at first glance, the case can be worked out for no Jail, and no Prison time That essentially means there's really no reason to march into harm's way by snitching.

Back in the mid-90's, when the Law was different, the Delivery of ANY amount of Cocaine required a MINIMUM of 1 year in Prison. And Prison meant Prison: the Big House, not some local County Jail.

In those cases where the evidence was rock-solid, and there was no way out, I'd structure a deal with the Prosecutor and the Detective in Charge whereby the Client would do a little "work" (as little as possible) in order to get the Delivery charge dropped to a simple Possession charge, thereby avoiding a trip to Jackson and all the fun that comes with a Prison term.

Continue reading "Controlled Substance Delivery Charges in Macomb, Oakland, and Wayne County - Part 2" »

This subject will be broken into a series of articles. We'll examine both kinds of "Delivery" charges: Delivery or Manufacture of a Controlled Substance as well as Possession with Intent to Deliver a Controlled Substance. In my Criminal practice, I see these charges made in cases involving all kinds of substances, so we'll also examine Delivery charges involving Narcotics and "Designer Drugs," like Ecstasy, to those involving the Delivery or Manufacture of Marijuana.

You don't have to be a Criminal Lawyer to realize that a Delivery charge is serious business. Very often, at the time of Arrest, a person is confronted by the Police and asked to "help" themselves by "working." In other words, the Police want the person to help bust other Dealers or Suppliers. Perhaps the biggest mistake anyone facing this situation makes is thinking the Police will just settle for getting names.

In my nearly 20 years of handling cases and dealing with Undercover Narcotics Officers and Detectives, I have learned, as they so often tell a person willing to give up some names, that they already know most of those names. They want buys, or introductions. In other words, "working" means working, not talking.

The Police will often try to impress on the person facing a Delivery charge how serious the matter is. Very often, they will remind the person of the maximum penalty under the law for such an offense. This, while technically true, ignores the fact that unless the person already has a really bad prior record, or there is a particularly large quantity of Drugs involved, they are unlikely to see much, if any, of that time behind bars.

And here is as good a place as any to point out that when Police, Prosecutors and Defense Lawyers talk about these kinds of cases, we often refer to them as a "Dope Case." The same term is NOT used when talking about simple Drug Possession charges

So, to set the stage, we can safely say that pretty much any charge involving Delivery is much more serious than any charge which involves simple Possession of a Controlled Substance.

With that as a backdrop, it is important to point out that there are really two "kinds" of Delivery charges. The first, and more serious, is that which involves an actual Delivery of a Controlled Substance. Most often, the person arrested has made a sale, or any number of sales, to an Undercover Narcotics Officer. These are called "hand-to-hand" buys, and really represent the "granddaddy" of all Drug charges.

Continue reading "Controlled Substance Delivery Charges in Macomb, Oakland, and Wayne County - Part 1" »

A number of recent cases that have come my way have had me pointing out what so many people already know, and talk about: Oakland County is generally tougher on Criminal Cases that either Macomb, or Wayne.

In fact, while some who don't know better might joke that one can get away with anything in Detroit, the fact of the matter is that for most real-world Criminal cases, like DUI, Possession of Marijuana, and Suspended License matters, Oakland County is the last of the 3 Counties I'd want to be in if I were facing such a charge.

This is not to say I think there's anything wrong with any of the Oakland County Courts, it's just to point out that if, for example, a person is facing a DUI, the outcome will be noticeably more lenient in a city like Warren, or Detroit, as opposed to Rochester Hills.

Of those Courts known to be really tough, perhaps none can come close to the reputation, at least, of the 48th District Court in Bloomfield Hills and how it typically handles a DUI. In that Court, a 1st Offense DUI can, realistically, result in a Jail Sentence. For anyone facing a 2nd Offense, well, bring a toothbrush.

I get around to all 3 Counties all the time, but the bulk of my practice is, happily, in Macomb County. I like it that way. I haven't had my Office in Mt. Clemens for nearly 20 years just because I like to drive. Having an Office right across the street from the Macomb County Circuit Court allows me to be closest to the Courts I get to the most. I chose the "County Seat" for my Office because I think that, amongst all the Courts in the Tri-County area, those in Macomb strike the best balance between firm and fair.

Of course, this is just my opinion. However, ask anyone who gets a Possession of Marijuana in Oakland County, and winds up on a year and a half to two years' Reporting Probation, with all kinds of testing and classes, how he feels about someone with the same charge in a Macomb County Court who winds up getting a years' Non-Reporting Probation. Chances are, they'll agree with me.

Understand my perspective: I defend Criminal cases. When I feel that people get the best breaks here, and not such good breaks there, I cannot help but start to like the place where the best breaks are had. And when all of my colleagues say the same thing, and feel the same way, then I know there's something to all of this.

Continue reading "Criminal Cases in Macomb, Oakland and Wayne Counties - How Each County is Different" »

As a busy Criminal Attorney, I see all kinds of situations. In a previous article, I observed that many times people begin to see "patterns" in the things they do. One such "pattern" I have seen, but have yet to write about, is when parents have to hire a Lawyer for their child. To be clear, we're not talking Juvenile cases here, we're talking about full-blown adult Court cases.

The kinds of cases that I handle can range from small things like MIP's and Trespassing to more serious Felonies, such as Controlled Substance offenses and Theft crimes. Sometimes, the person charged is as young as 17 years old, and/or still in High School.

In terms of "pattern," the Client comes to my office, usually with one or both parents in tow. The parents are NOT happy. Very often the incident involves them finding out all kinds of things about their kid they didn't know, and hoped wasn't the case.

Let's look at an example. A young man came in a while ago with a Ticket for MIP and for Possession of Marijuana. He was at a party at someone's house, the parents were gone, and things got a bit loud. Not surprisingly, the neighbor's called the Police, who showed up, saw teenagers, beer, and a party. The Police arrival ended the party, but only started the trouble.

To fast forward a bit, the kids were given breath tests, and my Client, who blew a .07, was also found to be in possession of a small amount of marijuana. He was arrested, and had to call home to be bailed out of Jail. That probably wasn't a pleasant phone call, and I imagine the ride home was not better, at least for him.

Back at home, the parents learned that many of this young man's "nice" friends were also at the party. Not that these kids were doing anything lots of others don't do, but the point was that the parents had to reevaluate what they knew, and what they thought they had known about their son, and his friends.

As it turned out, this young man was a Senior in High School, who has already been accepted to College. He was (and is) a good kid, good student, and all around nice young man. It's just that he got caught partying when he told his parents he would be at a friend's watching movies. Drinking beer and having a bag of weed on him didn't help.

Continue reading "When a Parent Needs a Lawyer for Their Child's Adult Criminal Case in Michigan" »

As a Criminal Defense Lawyer who limits his Practice to Macomb, Oakland and parts of Wayne County, you might expect that I would just tell someone looking for a local Lawyer to "hire me!" Instead, this article will focus on what I believe to be some of the more important factors to consider when looking to hire a Lawyer, so that a good, solid and friendly relationship can develop.

The process of hiring a Criminal Lawyer really begins only when someone has been arrested and/or charged with a Crime. For the person charged, as well as any close family or friends, it's usually a very stressful time, and hardly the right time to try and practice good consumer skills. Unfortunately, that sense of fear and need for help can also leave people rather vulnerable.

There really is no shortcut to shopping around. Check out Lawyer's websites; read their Blogs. See what they have written about the kind of case you have. Make phone calls.

When my family and I moved into our home about 12 years ago, we needed a new Dentist. My wife looked around, and then began calling around. As she called different offices, she was struck by one office in particular. She told me that there was simply no way such a nice receptionist could be working for a Dentist who wasn't equally as nice. And, as it turned out, she was right. I suppose it's a variation of the saying that, by and large, the disposition of a dog is a reflection of the disposition of the family that owns it.

In my office, the person who answers the phone is really the "Director of First Impressions." I really think that's a good place to start. If the person answering the phone seems cold, or more interested in their chewing gum than the reason for your call, things are not likely to improve considerably as your call gets transferred down the line.

Another sure sign that things might be a little too "rinky-dink" is having your call answered by voice mail. Maybe it's just me, but if I call a business of any kind and get the office voice mail, I just hang up and move onto the next.

In terms of Lawyers, several things should be kept in mind, especially when the people looking to hire one are in rather urgent need of help and comfort:

Continue reading "Finding the Right Lawyer for a Criminal Case in Macomb, Wayne or Oakland County" »

I handle a lot of Driver's License Matters, from Suspended and Revoked License Cases (DWLS/DWLR) to Full Restorations. I have probably seen most every scenario or circumstance under the sun as it relates to Suspended License Charges. In a recent article about Possession of Marijuana, I noted that, for all the differences amongst cases, and despite the fact that every case is unique, there are certain "patterns" that one begins to see after a while.

This article will focus on a pattern that often comes with a DWLS charge: They often come in groups. The title of this article provides some insight, because it does seem like bad things tend to happen in 3's. It's not uncommon for me to get a call from someone who has recently picked up not 1, but 2 (or even more) DWLS charges in a row. Often, their License was suspended for an unpaid Ticket or Tickets, or because they owe Driver Responsibility Fees to the State. It seems, then, like the first bit of bad luck, usually a Ticket, results in 2 more Driving Offenses, all making a sort of "Trifecta" or "Hat Trick" of misery.

More often than not, the person calling me has either 2 upcoming Court dates, or is waiting to be notified about one or the other. Sometimes, however, the person may have failed to take care of one or both matters, and be faced with 2 outstanding Bench Warrants for failure to show up. One way or another, there comes a point when there are 2 (or more) pending Court dates, putting one case in front of the other.

The order of those cases can make a huge difference in how they're worked out. It is generally a good idea to wrap up the case in the more "lenient" Court first. It's harder to get a really good break in your second Court date if you're record has already taken a hit in the first. Whether those Court dates arrive in the better order, or not, is about a 50-50 split.

That does not mean that things are in any way dependent upon the initial order of these Court dates; it means that if they don't get put in the "proper" or better order in the first place, the Defense Lawyer needs to either re-arrange them, or work it out somehow so that the cases are resolved in the best way possible. This, of course, translates to working it out to spare the client any, or as much negative Legal and License impact as possible. Here's what I mean:

Continue reading "Michigan - Driving While License Suspended (DWLS) - Things Happen in 3's" »

As a Criminal Defense Lawyer, I might otherwise be inclined to note that there really is no "typical case," and that each case is unique. While that's true, there are some things that follow certain patterns, and Possession of Marijuana cases are no different. In this article, we'll talk about one of the more common scenarios leading up to a Possession of Marijuana charge, the Traffic Stop.

In my 20 years of handling Marijuana cases, I have probably seen a "Possession" charge in every imaginable circumstance. For all of that, however the most common situation involves a Traffic Stop.

We will not be focusing much on the legality of the Traffic Stop itself; that would involve writing a big, fat, legal textbook rather than a Blog article. For our purposes, understand that as a Defense Lawyer, I always look to see if there are grounds to reasonably, successfully challenge the Traffic Stop. If so, then that's an option. In most cases, however, the reality of the situation is that the Judge isn't going to listen to the Police Officer testify as to his or her reason for pulling you over, and then say something like "that's baloney...this case is DISMISSED!"

The typical call in my Office is from someone who got pulled over for one reason or another, and was found with weed. Most of my Clients have no prior drug record, but a fair share of them do have a prior conviction. In either case, the Client wants, first and foremost, to avoid any Jail time.

This is were I can get a little angry about some of the things I hear. When I hear, for example, from someone who has no prior convictions, and they tell me they're calling around for a Lawyer, and that one or another with whom they've spoken has told them that they'll keep them out of Jail, I get mad. Not because I think there's any chance of them going to Jail, but because I know, right off the bat, that the person is almost certainly NOT going to Jail, and that kind of scare-tactic sales pitch is, well, baloney.

That's about as accurate and honest as a Dentist finding a cavity and telling the Patient "I can fill that, and this way your brain won't swell up and your skull won't explode." It was never going to happen, anyway. Ditto for Jail in a first offense weed case.

In fact, in 20 years and countless weed cases, I honestly cannot ever recall a single Client in a first offense Possession case going to Jail, or even coming close to it, for that matter.

Continue reading "Possession of Marijuana in the Detroit Area - The Typical Case" »

This article is in response to a number of inquiries I have received asking me to outline what I would do for someone in their particular Criminal case. It's a fair question. If you're about to drop $1000, $2000, or $4000 in Legal Fees on a Lawyer, it's probably a good idea to know what they expect to give you for your money, beyond a polite "thank you."

Unfortunately, the answer to that question, in any particular case, is not so clear cut. Some might find a Lawyer's reluctance to answer such a question with specific information to be a reluctance to "give away the store." In some cases, that may be true. After all, that no one wakes up every day for a week with a stiff knee, then starts calling Doctors and asking them exactly what they'd do to make it better and expects to get a detailed answer. Any Doctor who would take such a call, however, would likely have the same answer any competent Lawyer would have in responding to a question about a person's Legal situation: It depends.

There are really 4 significant parts to any Criminal case, at least once the case is active:

1. The person's story. Their version of what happened, and why, and what they think the Police saw, or learned.

2. The Police story. Their version of what happened, what they were told, and what they learned. This is often well summarized in the Police Report.

3. The Prosecutor's position. While this is largely based on the Police position, different Prosecutors have different personalities, and which one handles any particular case can have a profound effect on how it is resolved.

4. The Court in which the case is being heard. Beyond the fact that the different Counties have different approaches to cases, Judges, like Prosecutors, have different dispositions. Some Judges are especially tough on this or that type of offense, while other Judges might be more lenient toward the same offense, but tougher on another.

Thus, when a person calls and tells me their story, I have precisely ¼ of the information I need to get a clear picture. Going back to the Doctor analogy, after hearing the Patient's complaints, the Doctor probably has figured out that whatever the problem, and ultimate solution may be, it most likely involves the knee. Great. But he or she will want x-rays, blood work, maybe an MRI and an exam, as well, before forming a plan.

Continue reading "The Best Legal Strategy in a Michigan Criminal Case" »

As a Criminal Attorney, I generally find myself involved with people at one of the worst times of their life. Since I don't handle things like Rape and Murder cases, I usually represent good, decent people who have simply made a bad decision, or otherwise failed to exercise good judgment and wound up getting caught in a bad situation. Most of my Clients face things like DUI, Possession of Marijuana, or other "victimless" crimes. In that regard, they typically, (and correctly) feel that this instance of poor judgment does not present an accurate picture of the kind of person they are, or what they're all about.

Thus, it's not unusual for me to be asked by a Client facing a DUI, for example, "How long will this stay on my Record?" Then, when I have to tell them "forever..." they usually become a bit frustrated (not at me, thankfully) and respond with something like "So that's it? I'm screwed if I want to apply for a different job?"

You can insert pretty much anything, from getting a job, to getting a degree, or using that degree, or going into some occupation or other, or getting a promotion, or whatever, into that last sentence after the part where the Client says "I'm screwed..."

And although they do, at that moment, feel utterly and truly "screwed," the fact is, no matter how bad it might seem right then, it's almost never as bad as they fear.

An example from my own past is serves as a good example:

Years ago, when my wife and I were buying our first house, we had applied for a mortgage, and had been assured that we would be approved. Based on that, we found our home, and made an offer, which the seller accepted. As the days wound down, our mortgage was still not formally approved. Days came and went, and we found ourselves very near the closing date, with no mortgage approval. The closing day came, and had to be postponed. That next date came, and had to be put off, as well. The seller was freaking out, and we were freaking out. The seller told us that the deal would either have to be closed right away, or it would fall through.

I called my mortgage broker, and explained to his assistant that my deal was about to collapse unless we got that approval right away. In response, he told me that he hears that every day, and not to worry. In truth, I became angry, wondering who in the heck this guy was to tell me not to worry when I darn well knew that my deal was about to fall through! I didn't give a hoot about anybody else's situation; I just cared about mine.

Continue reading "How a Michigan Criminal Record will Ruin Your Career...or Not!" »

A recent Channel 7 News story about local Police cashing in on Tickets struck a familiar chord with me. A big chunk of my Practice involves DUI's and Traffic Tickets. I often find myself explaining to a Client that, above and beyond any facts in their case, it represents revenue to the City in which the case was brought. Now let's be clear, I'm not talking about major crimes here. Instead, I mean DUI's, Suspended/Revoked License charges, Traffic Tickets, Possession of Marijuana and similar, local Misdemeanors.

I could literally list hundreds of examples, but one that comes up as much as any other occurs when a Client has been arrested for a DUI. The person might have been pulled over for speeding, and then ask me something like "I was only a few blocks from home. Why couldn't he (the arresting Police Officer) have just let me call home and get a ride?"

I then explain to my Client that, besides the fact that Driving Under the Influence is a crime, to the City (or Township, or Village, or whatever) their arrest represents revenue. And a nice chunk, at that.

In addition to the Fines that the City picks up in one of these cases, the Court supports itself by imposing Costs, as well. Add to that the cost of supervised Probation for a year or more, and just letting that DUI Driver go means sending better than a thousand dollars out the door.

Even a simple Traffic Ticket, which represents only a few minutes of Police time, generates better than $100. If you figure that into an hourly rate, the Police Officer is more than earning his or her salary back for the City.

This is why, in most Traffic Ticket cases, a person with a decent Driving Record can hire a Lawyer, take the case to Court, and wind up walking out with a deal that keeps any and all points of their Record. Of course, part of that deal is paying the fine on a "non-reportable" Traffic offense. From the City's financial point of view, they are still making money.

Continue reading "Drunk Driving and Traffic Tickets in Michigan - The Money-Making Speed System" »

Criminal Charges for Possession of Marijuana seem to be occurring at about the same rate they always have, at least from the perspective of my Practice. Since Medical Marijuana was legalized in Michigan over a year ago, I have crossed paths with it, but not in a way that has been a legal defense to a Criminal Charge.

A person need only read the newspaper to learn that pretty much everyone is still a bit confused about the exact application of the new Medical Marijuana Laws. A few cases have been brought at the District Court level, and some aspect of the Medical Marijuana Laws has been raised as a Defense to those Charges, but nothing really decisive or guiding has yet to come from any of Michigan's Appellate Courts. Recently, some cities have begun prohibiting or restricting marijuana dispensaries. The final outcome to all of this is still unsettled, and any predictions are probably still premature. A recent e-mail I received from one of the Principals of the Michigan Medical Marijuana Association outlined the contradictory positions of 2 State Agencies regarding when an applicant for a Medical Marijuana card is considered "legal."

The The Michigan Medical Marijuana Law itself is simple, but not clear enough to prevent these contradictory positions. This spells potential trouble for anyone caught with Marijuana who does not have a Medical Marijuana Card, even though the law clearly states that a card shall be issued within 15 days of a valid application being submitted. It further states that if no card is actually issued within 20 days form the date of the submission of a valid application, that application shall be deemed "granted."

It would appear that if a Card is subsequently issued, the 20 day period will be easy enough to define. However, in cases where an application is rejected for one reason or another, such as a typo or missing piece of information, and even if that information is later provided and the Card issued, it is arguable that the 20 day period did not apply prior to the submission of the corrected application. I would expect that to be the position of the Police and the Prosecutors.

From the perspective of a Criminal Lawyer, having the proper certification to dispense, grow, or possess Marijuana is seen as a potential defense to a related Criminal Charge. I say "potential defense" because the certification or permission granted by the Medical Marijuana Laws are not unlimited. A person cannot start an outdoor, 100-acre Marijuana farm, and neither can a person drive around with 10 pounds of Marijuana in their car. There are limits to what is allowed under the new law, and even if the exact edges of those limits have not yet been clearly defined, certain things obviously fall well outside of them.

Continue reading "Marijuana Possession in Michigan - It Can't be Medical After the Fact...or Can It?" »

Okay, I had to have a little fun with the title of this article, but the reality is that, for anyone facing this charge, it's really no laughing matter. Indecent Exposure cases are relatively common, and in my practice as a Criminal Defense Lawyer, come up regularly, if not necessarily frequently. In other words, I get my fair share.

Indecent Exposure is a Misdemeanor, but recent changes in the law have created a new kind of Indecent Exposure charge called "Aggravated Indecent Exposure," which is kind of hybrid crime called a "High Court Misdemeanor ." There is a very small class of Crimes called "High Court Misdemeanors" which are handled and prosecuted as Felonies, even though they are specifically called Misdemeanors in the Law.

When I say "handled and prosecuted as Felonies" I mean that, unlike typical Misdemeanor cases, which are and must be handled in the local, District Court, these cases start, like all Felonies, in the District Court, but must be finalized in the County's Circuit Court.

Unlike some Laws, which are complex and difficult, even for a Lawyer, to understand, the Indecent Exposure Law is straightforward and clear, and anyone reading it can understand it. Accordingly, there is no need for me to elaborate on the difference between the basic Misdemeanor and the Aggravated, High-Court Misdemeanor, beyond pointing out that what makes an Indecent Exposure Charge "Aggravated" is that the person charged was somehow "fondling" themselves.

The majority of Indecent Exposure charges involve having some private part exposed. While the name of the Crime itself can sound kind of "trench coat-flasher" creepy, many people are surprised to learn that merely urinating behind a building is an act of Indecent Exposure. Of course, for those who have been caught while relieving themselves, the whole notion of being charged with a sex crime is even more distasteful. It's probably true that most people would think of the terms "indecent exposure" as a "sex crime" when it involves something like "flashing." Despite what anyone thinks, and indeed, what anyone intended to do, or not to do, merely having certain private body parts exposed is enough to be charged with indecent exposure. No flashing, and no "audience" are necessary. As long as someone could possibly come upon and see a person who has some private part exposed, then having such a part exposed is Indecent Exposure.

Continue reading "Indecent Exposure in Michigan - "Uncovering" the Truth" »

In previous Blog articles, I have written about various aspects of Probation Violations. In some Courts, these are termed "VOP," meaning Violation of Probation. Other Courts schedule them as "Show Cause" Hearings. Whatever the name, the purpose of the Hearing is the same: A reckoning for either doing something prohibited under the Probation Order, or for NOT doing something that was ordered. This article will examine how I do Probation Violations, why I think I'm so good at them, and how much I charge.

In almost every one of my other Blog articles I have steered away from sounding like a salesman, opting instead to describe the various legal processes, and how they work, at least locally. This article will be a departure from that. I write this in response to a number of calls and e-mails inquiring about retaining my services in Probation Violation cases.

I have been asked any number of times if I have ever handled a case like this, or that, or have been in front of some Judge or other. Likewise, I have often been asked what kind of strategy I would employ in handling someone's case. I want to answer all these questions in one fell swoop.

I have observed that Probation Violation Hearings are typically less "legalistic" than other kinds of Criminal Proceedings, because the only issue before the Judge in a Violation Proceeding is to determine, by what's called a "Preponderance of the Evidence" (in other words, that there is more proof that Probation was violated than there's proof it was not; think 50.01% -vs- 49.99%) whether the person either did something that was prohibited by the Order of Probation, or failed to do something that was required by it. Thus, many of the Rules of Evidence, which govern criminal Trials, don't apply, and all that "proof beyond a reasonable doubt" stuff goes out the window. Being a "legal encyclopedia" does not mean even the most knowledgeable Lawyer can effectively handle a Probation Violation.

When it comes to Probation Violations, you should be looking for a Lawyer who's Professional in appearance, and charismatic in disposition. If you really want to get specific, you should be looking for someone whose personality seems magnetic. Forget anyone who comes off as arrogant. Same with Rude. Ditto for cold. And, above all, you should look for someone who's "local."

Continue reading "Finding the Best Lawyer for a Probation Violation in Macomb, Oakland or Wayne County, Michigan" »

Most often, it goes like this: My office receives a call from someone who has been contacted by the Police (usually, a Detective) who wants to talk to them about an embezzlement case. In almost all of the cases, the person used to work for the person or company that went to the Police. The person calling my office is scared, and doesn't want to say anything that will make matters worse. It is not uncommon for the caller to have been told by the Police that if they do not give "their side" of the story, the Police will get a Warrant.

The caller wants to come in and is willing to pay whatever the cost in order to get some sound Legal advice.

And then I surprise them by telling them that the best advice is so simple, it would be a crime in itself to charge them for it: Just shut up.

In another article on this Blog, I explained what to do (and, more importantly, what NOT to do) when a Police Detective calls. As explained in detail there, in almost every case I've ever seen, by the time the Police call, they already have enough evidence to go ahead and get a Warrant charging the person with a crime. In that sense, the Police are being completely (and maybe too) honest. Think about the message the Police either leave or pass on: If you don't call, we'll get a Warrant. In order to do that, they need to establish "Probable Cause" to the Judge, and they're already indicating that they have it.

Therefore, about the only thing a person can say that would help out is something to the effect of "that wasn't me - I was living in Arizona during that whole time period, never was here in Michigan, and I can prove it." Anything other than that is just another nail in their coffin.

My advice in those cases is always to be polite and cooperative - return the call, and tell the Police you'll come in to be processed (meaning "booked" and "Arraigned"), but don't want to say anything or answer any questions. I tell the caller they can tell the Police they are "exercising their 5th amendment right against self-incrimination on the advice of Counsel." You've at least seen that one on TV, or in the movies, right?

Continue reading "Embezzlement Crimes in Michigan - Macomb, Oakland and Wayne County Cases" »

In the previous Blog entry, we discussed the Misdemeanor Offense of Leaving the Scene of a Property Damage Accident (PD). This article will discuss the similar, but more serious Offense of Leaving the Scene of a Personal Injury Accident (PI).

Leaving the Scene of a Personal Injury Accident is typically spoken of as Leaving he Scene of a PI Accident. Like the related charge involving a Property Damage Accident, this Offense and its penalties are set forth in the Michigan Motor Vehicle Code. Leaving the Scene of a PI Accident carries a much stiffer potential penalty, however, of up to 1 year in the County Jail.

Again it would seem obvious why this is a Crime. There is a strong public interest in making sure anyone involved in an accident sticks around long enough to exchange information with anyone else involved and summon the Police, if necessary. The stakes are much higher if there is an injury, or even a potential injury. Doesn't everybody who ever gets a Driver's License learn that the first thing one should ask, after a collision, is if everyone is all right?

Imagine the potential consequences if a Driver leaves the scene of an accident after another person has been injured, and is unable to call for help. Given the stakes, making sure one person renders aid or contacts help for another who has been injured is, and ought to be, a matter of universal public policy.

In the real world, this charge comes up when someone collides with another vehicle, or pedestrian, and then panics and takes off. I think it's fair to say that most of the time this happens, the person who takes off truly believes that the other party is okay. In other words, most of the time, when one person knows they have really banged up another, they'll stick around and do the right thing.

As with PD accidents, there are two groups of people who Leave the Scene of a Personal Injury Accident:

1. Those who had been drinking and left the scene to avoid getting arrested for a DUI, and

2. Everybody else.

Continue reading "Michigan Traffic Offenses - Leaving the Scene of an Accident (Personal Injury)" »

One kind of charge that comes up somewhat regularly in my Practice as a Criminal Defense Lawyer involves the Misdemeanor charge of Leaving the Scene of a Accident. Actually, there are two different kinds of Leaving the Scene charges: The one we'll discuss in this first article, is Leaving the Scene or a Property Damage Accident. In the next installment of this Blog, we'll examine the other, similar (but more serious) charge of Leaving the Scene of a Personal Injury Accident.

Leaving the Scene of a Property Damage Accident is often referred to as Leaving the Scene of a PD Accident, and is a violation of what's known as Michigan's Motor Vehicle Code. The Motor Vehicle Code is the collection of all Michigan Traffic Laws. A violation of any provision of the Motor Vehicle Code is considered a Misdemeanor, punishable by up to 90 days in Jail, unless a different penalty is specified as part of a particular provision. Curiously, and somewhat redundantly, the specific provision of the Law concerning Leaving the Scene of a PD Accident includes a penalty of up to 90 days in jail for its violation.

The purpose of these Laws is relatively clear; to make sure people don't take off after an accident. Someone who's property has been damaged as the result of an accident, whether it's a car parked somewhere, or a mailbox, or whatever else, shouldn't be left "holding the bag" for those damages if the other driver was able to take off and get away undetected. In the vast majority of collisions (where a person was not driving while drunk, or high on drugs, or recklessly) the worst thing an at-fault driver faces is a Traffic Ticket for a Civil Infraction. In other words, the penalty for leaving is much worse than any possible penalty for whatever happened to cause the collision. The law applies equally to any driver involved in an accident, meaning that even a person who was clearly not at fault can't just leave the scene.

In the real world, there are 2 kinds of people facing this offense:

1. Those who had been drinking and left the scene to avoid getting arrested for a DUI, and

2. Everybody else.

A fairly typical real-life example involves someone hitting a parked car as the drive down a street. If the driver is sober, then, at worst, they might get a Traffic Ticket for their actions. If the driver has been drinking, however, they know that they're facing a DUI arrest, further complicated by the accident, if they wait around for the Police to show up. While even the most law-abiding citizen can become panic-stricken and make a poor decision and drive off, it's far more likely to happen when a person knows contact with the Police will certainly lead to a Drunk Driving arrest, for starters.

Continue reading "Michigan Traffic Offenses - Leaving the Scene of an Accident (Property Damage)" »

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.

For 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...).

Continue reading "Michigan - Picking up a new Offense While on Probation for another" »

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.

Even 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."

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.

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 "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:

A 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.

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.

Most 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.

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.

As 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" »

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.

The 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 " »

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.

A 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.

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.

In 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" »

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."

The 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" »

In the first part of this article, we examined what happens at an Arraignment from the beginning, when a Defendant is advised of the Charge against him or her, and the Penalty that can be imposed for that Charge, as well as how the Court advises the Defendant of his or her Constitutional Rights, to how a Plea is entered. In this second part of the article we will examine the setting of Bond, the imposition of Bond Conditions, and how and why a Court will inform the Defendant of his or her next Court date. In an earlier Blog Post about Bond and getting out of Jail, we examined the Bond Process, particularly the money aspect in detail. Here, we'll examine the mechanics of the setting of Bond and Bond Conditions more than the money considerations we discussed in that earlier Blog article.

As a Criminal Defense Attorney, I have the opportunity to observe and participate in these proceedings from a slightly more detached position than my Client, who may well be too nervous to recall much, if any, of what happened, once they walk out of Court. As we proceed, we'll be using the example about the person arrested and taken to Jail for Possession of Marijuana in the City of Warren from the first part of this article.

Let's go back to that Possession of Marijuana example from the first part of this article. Remember, our imaginary Defendant was arrested in the City of Warren for Possession of Marijuana and has spent the night in Jail. Now, they've been brought to Court and before one of the Judges. After advising the Defendant of which Law he or she is charged with violating (in our example, either the City of Warren Ordinance or the State Law) and what the maximum possible penalty is for that violation, and after making sure the Defendant has been provided with either a verbal or written explanation of their Constitutional Rights, and that they understand them, and then entering a Plea on behalf of the Defendant (usually "Not Guilty," sometimes "Stands Mute,' and hopefully not, in any case, "Guilty"), the Judge looks to set Bond. The terms "Bond" and "Bail" have come to have similar meanings, which is an amount of money posted with a Court to get a Defendant out of Jail.

Let's take a detour from the example we've been discussing for a moment. Let's say that rather than having been arrested and spending the night in Jail for Possession of Marijuana, the person instead had their Marijuana confiscated and was issued a Citation (Ticket) instructing them to call the Court within 10 days from the date it was written. Or, let's say that the person was taken to the Police Station, booked, and then let out of Jail after posting an "interim Bond" of $100 or so, or just let go without posting any money, but, in either case, was still issued a Citation.

Continue reading "Arraignment in Michigan Criminal Cases - Part 2 - Bond and Conditions " »

This article will focus on the very first part of any Criminal Case, known as an Arraignment. Long before I ever became a Criminal Defense Lawyer, I had heard the term "Arraignment" in the news many times. Even though I had a general idea that the term had something to do with the beginning of a criminal Case, I didn't know exactly what an Arraignment was, much less what happened at one. For anyone involved with a Criminal Case, whether they are the person being charged with a crime (the Defendant) or that person's family or friends, the Arraignment is often their first-ever contact with the Criminal Process.

I'd like to narrow the focus of this article a bit. The vast majority of my experience is in Macomb, Oakland and Wayne Counties. Pretty much everybody I represent would be considered "regular," or "average," in the sense that they generally have families and community ties and jobs, as opposed to being career criminals like Bank Robbers, Kidnappers and Serial Killers. It's that kind of ordinary citizen facing a Misdemeanor or light-to-medium severity Felony Criminal Charge that we'll have in mind as we review the Arraignment process. Because even a relatively casual treatment of this subject requires some depth, we'll divide this article into two parts. In this first part we'll examine how the Court advises a person of the Charge against them and what the potential Penalty is for such an offense, how the Court advises the person charged of their Constitutional Rights, and how a Plea is entered. In the second installment, we'll examine the setting of Bond and Bond Conditions, and the scheduling of a Defendant's next Court date and how that differs in Felony and Misdemeanor cases.

The process of Arraignment serves several purposes, and this is how the proceeding goes:

First, a Defendant is formally told of the exact Criminal Charge that has been made against them.

Second, the Defendant is likewise told the exact nature of the possible Penalty that they face.

Third, a Defendant is either told, or reads and must sign to indicate they read and understood, their Constitutional Rights when charged with a Crime.

Fourth, a Defendant is asked how he or she Pleads (Not Guilty, Stands Mute or Guilty).

Fifth, and perhaps most important of all, at least to the Defendant, is the setting of Bond and Bond Conditions.

Sixth, and finally, the Court informs the Defendant of the next Court date, or at least advises the Defendant that Notice regarding that next Court date will be sent to them.

We'll examine each of these things in turn, beginning with informing a Defendant of the exact charge or charges against them. When a person is alleged to have committed a crime, it means that they violated or "broke" some written law. In fact, everything that is illegal is illegal precisely because there is a law written somewhere that makes it illegal.

Continue reading "Arraignment in Michigan Criminal Cases - Part 1 - What Happens " »

As a Lawyer who spends a substantial part of his practice handling Criminal Cases, primarily in Macomb, Oakland and Wayne Counties, one of the typical calls that comes into my office is from a family member or friend of someone who has recently been arrested and is in Jail. Often, the caller is distressed about the situation, and wants advice, first and foremost, about how to get their family-member or friend out of Jail.

The first thing to learn when trying to determine a jailed person's situation is whether or not they have been "Arraigned." An Arraignment is the first Court Proceeding in a Criminal Case. It follows a person's Arrest and "Booking" (mug shots and fingerprints).

While an Arraignment serves several purposes, the one that matters most to anyone going through it is the setting of Bond, which is done at or near the end of the proceeding. Bond is the amount of money that will be necessary to "Bail" the arrested person (also known as the Defendant) out of Jail. When a Judge or Magistrate is ready to set Bond, there are several things he or she looks at in making their determination.

First, there is the nature of the Crime. Is the offense a Felony or Misdemeanor? Even though, at the outset of a case, a Defendant is presumed "innocent until proven guilty," a person charged with a First-Offense Drunk Driving will be considered considerably less risky to put back on the street than a person charged with being a serial killer. Thus, the severity of the offense being charged is one of the things considered when setting bond. This is spoken of in terms of "Protection of the Public."

Of similar importance is the prior record of the person being charged. Someone with no, or a rather minor prior record, is considered a safer bet for release than someone who has a lengthy prior record, if for no other reason than a Defendant with the lengthy prior record seems to not be able to stop getting in trouble. Also, the worse a Defendant's prior record, the more likely that the "next" offense, at some point, will net them a Jail (or Prison) sentence. Thus, there is, with such people, an increasing risk that, with each new case, they may become scared and simply not show up to Court out of fear of getting locked up.

Continue reading "Michigan Criminal Cases and Bond - The Basics of Getting out of Jail" »

As a Criminal Defense Lawyer who appears in Detroit and Suburban Courts almost every day of the week, I hear and see Judges issue a "Bench Warrant" often. Most people have a general understanding of what a warrant is, but many are not clear on the meaning of the term "Bench Warrant" and how it relates to Warrants in general.

A Bench Warrant is, as you can imagine, a Warrant that is issued "from the Bench," meaning by the Judge sitting at his or her "desk" in Court. A Bench Warrant can only be issued in certain, limited situations. While a Bench Warrant is a kind of "Arrest Warrant," not all Arrest Warrants are Bench Warrants, in the same way that a baseball is a kind of ball, but not all balls are baseballs. The focus of this article is upon Bench Warrants, when they're issued, for whom, and how they're dealt with.

A Bench Warrant is issued when a person who is subject to an order of a particular Court does not comply with it. One of the most common situations in which Bench Warrants are issued is as good a place as any to look for an example.

Assume a person has been arrested for an offense (it can be any offense: Drunk Driving, Possession of Marijuana, Domestic Violence, etc.) and is sent a notice by the Court to appear on a certain day. If that person does not appear on the date required by the notice, when the Judge calls their case and they don't respond, he or she will issue a Bench Warrant. This means that a warrant is put out through the LEIN (Law Enforcement Information Network) and if and when the person comes into contact with a Police Officer, they will be arrested.

Actually, the Bench Warrant itself is an order of Court commanding a Police Officer to arrest someone and bring them before the Court. The Officer cannot ignore an active Warrant. This is one reason why, upon pretty much any contact with the Police, an Officer will want ID from a person so that he or she can run their name and see if they have any outstanding Warrants.

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In my role as Criminal Defense Lawyer with an office in Macomb County, I have contact with all kinds of people from the Metro-Detroit area. Some of these people are the Defendant's themselves, some family, and others interested friends. Sometimes, the facts of a given case are so completely beyond dispute that I will be asked by the Defendant or their family or friends "Do I (or does the Person charged with a crime) really need a Lawyer?"

Now, you can probably guess my answer to that question, but the reason for it may not be as obvious. Sure, there is always the possibility of some technicality coming to light which can be discovered by an astute Lawyer, but the focus of this article is more about what a Defense Lawyer can do in pretty much each and every case, no matter how bad things might appear, rather than on some once-in-a-blue-moon turn of luck.

First, and just as a general observation, try and recall anyone in the Public Spotlight who has ever been charged with a crime and didn't have a Lawyer. Even in the age of video, where some crimes are caught on tape and a person's guilt appears to be a foregone conclusion (like the Police Officers caught on tape in the Rodney King beating), anyone familiar with the Legal System will always have a lawyer as they maneuver through it.

There's an old saying, referring to Lawyers, that "The Lawyer who represents himself has a fool for a client." Lawyers, perhaps more than anyone, recognize the importance of having Professional Representation. When Geoffrey Feiger faced (and was ultimately acquitted of) Federal charges related to Political Contributions, he hired a Lawyer (none other than the legendary Gerry Spence). And whether you like him or not (I do, and not just because I'm a Lawyer) you'll have to admit that Feiger is one good Lawyer. I'll bet most people would be hard-pressed to name any other Lawyer as good as Feiger, much less anyone even remotely in his league. Yet, despite being more than able to take on (and usually beat) anyone in a Courtroom, Fieger didn't do that; instead, he had Professional Representation.

So, what can a Lawyer do for someone who, for whatever reason (really bad prior record, crime caught on tape, solid confession, etc.) appears to be in a hopeless (and helpless) situation? What should a person look for in a Lawyer that will help them decide who to hire, and just as importantly, not to hire?

Continue reading "Criminal Cases in Michigan - Do I need a Lawyer?" »