Recently in Criminal Cases Category

September 26, 2014

Embezzlement/False Pretenses Charges in Michigan and Avoiding Jail

As a Michigan criminal defense lawyer, I have developed a fairly robust embezzlement/ larceny by false pretenses practice. I handle embezzlement and false pretenses cases brought in the Metro-Detroit area, meaning anywhere in Macomb, Oakland or Wayne Counties. While I have handled cases of all sizes, many of them have been high dollar cases involving hundreds and hundreds of thousands of dollars. I have written a number of articles on this subject that address the mechanics of an embezzlement charge and examine things like the first call from a corporate official and/or a police detective through the interrogation process. There is, of course, a lot to all of that; anyone who even thinks that he or she may face an embezzlement or false pretenses charge would be well advised to read those articles. Perhaps the most significant thing to be learned from them is to keep quiet and not talk. Ironically, however, many people discover what I've written after they've been questioned and have already made self-incriminating statements.

despair 1.2.jpgTo be clear, just remaining silent is no sure-fire way to make a potential embezzlement or false pretenses charge go away. In most cases, the investigation that leads to someone calling the police is usually rather thorough, and it frequently resembles the old notion that if you follow one single thread, you find a whole big mess. The reality is that most embezzlement and/or false pretenses cases aren't based upon false charges, although the amount of money that winds up being claimed by the "victim" is often grossly overstated. The sentiment there is that the aggrieved party (victim) might as well throw in the kitchen sink, because there isn't likely to be a very deep pool of sympathy for the person who gets charged. I understand that side of things, but I also know, from extensive experience, about the other, human side of story from the person accused of the crime. Facing an embezzlement/false pretenses charge can bring a sense of despair.

For all the legal and technical analysis we can undertake regarding an embezzlement or false pretenses charge, the real bottom line is that if you're facing one, you need to save your skin. I can write endlessly about rights and evidence and the burden of proof and hearings and legal arguments, and all of that kind of stuff, but at the end of the day, what matters most is what does, and even more so, what does NOT happen to you. This is particularly true when a person has, in fact, actually taken money or property, and then gets found out. I know that many people in these situations have labored under a desire, if not a belief, that they would find a way to pay the money back, or otherwise make things right.

This is an important, but often overlooked reality, because in the majority of cases I have handled, the person charged feels absolutely horrible. I have seldom dealt with anyone who didn't feel a profound sense or remorse when things get discovered. In fact, one of the more common issues in an embezzlement or false pretenses case is that the person facing the charge or charges can become seriously emotionally overwhelmed. While this does not "fix" the case, or make it go away, an important part of my job is to use that genuine remorse in order to negotiate a better break from the prosecutor, and then later, to convince the Judge to take it easy on my client.

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September 13, 2014

Weekly Summaries: License Restoration/DUI similarities and Probation Violation Outcomes

1. Driver's License Restoration and DUI cases share the same "DNA"

In the first article from this week, I examined the overlapping roles of being a Michigan DUI lawyer and a Michigan driver's license restoration/clearance lawyer. I noted that day-to-day experience in the courts of the Greater-Detroit area handling DUI cases is helpful in my role as a license appeal lawyer, when I appear before the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) hearing officers. While it's pretty much true that everyone has a general understanding that a DUI carries certain license sanctions, particularly in a case beyond a person's 1st offense, or where there is a "troubled" driving record, knowing the finer points of the administrative sanction imposed by the Secretary of State, beyond those that are part of the criminal law, is very helpful, and can sometimes impact the strategy I employ to avoid certain consequences for my client. Likewise, in-depth knowledge of DUI cases is equally helpful in winning back driver's licenses. Here are some of the more important points from the license restoration/DUI article:

  • A Michigan DUI lawyer will understand at least basic driver's license consequences
  • A Michigan driver's license restoration lawyer knows a lot more about driver's licenses
  • Most driver's license restoration cases arise because a person has multiple DUI convictions
  • A thorough understanding of how DUI cases work is helpful in winning a license appeal
  • Comprehensive knowledge of the licensing rules is often critical in a DUI case
  • What will happen to a person's license can impact how a DUI case is handled, and ultimately resolved
  • Beyond just DUI cases, driver's license rules can impact how DWLS and revoked license cases are handled
  • I have saved many a license because my understanding of the licensing rules goes way beyond the criminal law and the consequences the Judge will impose
  • A better DUI lawyer knows the ins and outs of driver's license appeals
  • A better license restoration/clearance lawyer knows the ins and outs of DUI cases
  • It is better still to know both areas well from working with them daily
Now, on to "What will happen to me in a probation violation?"...

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September 12, 2014

Michigan Probation Violation - What's Going to Happen to Me?

There are many possible reasons why a person may wind up violating his or her probation. Most frequently, a probation violation has to do with missing or failing a breath or urine test, picking up a new charge, not completing something the Judge had ordered, skipping out from probation altogether, or just not paying fines and costs. Sometimes, a person may be the victim of a "false positive" test result, or may have had to miss a test for circumstances beyond his or her control. Whether it's for one of those reasons, or any other, the real question anyone facing a probation violation wants answered is "What is going to happen to me."

violation 1.2.jpgIn my other probation articles, I have addressed many different aspects of probation violation cases, but not the ultimate question: What is going to happen to me? Obviously, it would take a fortuneteller rather than a lawyer to give a specific answer in any particular case, but it's probably fair to say that anyone going online to look this stuff up is most interested in what may or will happen to him or her. I know I would be...

We can skip all the discussion about the probation officer. If you're facing a probation violation, all the "could have, would have, should have (coulda, woulda, shoulda)" stuff in the world doesn't matter, because you're already at the stage where you need to go to court and appear before the Judge. It's kind of like a traffic ticket where you feel the cop wasn't fair, or justified in writing you up; maybe not, but that part of the transaction is in the past, and the only thing left is to address the matter in court. Accordingly, our efforts have to be directed forward, into the future, rather than backwards, in rehashing the past. We need to convince the Judge that you have a false positive test result or a legitimate reason for something like missed a test. In cases where there isn't a technical or practical excuse for the violation, we have to convince the Judge to go easy on you.

It is important to remember that probation is always an alternative to incarceration. From the Judge's point of view, probation amounts to a kind of bargain, sort of like a contract: You do this, don't do that, and I won't stick you in jail. Think of the bank or finance company explaining a car payment: If you make the payment, you can keep the car. When you don't make the payment, however, the bargain, or contract, is considered breached, and the deal can be called off. The car gets taken back, and you're on the hook for the money. In the same way, if you don't live up to your end of the probation deal with the Judge, the most important part of the deal (staying out of jail) can be called off, and you can get locked up and/or face other consequences. This is exactly what we have to avoid...

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August 8, 2014

Michigan Criminal Charges and Keeping a Clean Record

If you are facing a criminal charge for just about anything, from possession of marijuana, driving while license suspended/revoked, possession of a controlled substance (meaning something other than marijuana), domestic violence to retail fraud, as well as countless other charges not named here, keeping it off of your record, if possible, is the first order of business. In the previous article, I examined how, in the context of a DUI case, the out-of-character nature of the whole situation for the person facing the charge plays a positive role in the outcome of the case. In this article, I want to overview how those same "out-of-character," "this is not who I am" feelings can help produce a better result, particularly in keeping something off your record when facing a criminal charge.

Time_Turner_by_Miridiusart 1.2.jpgFirst, let's be clear: Not all charges can be kept off of a person's record. Second, there are all kinds of different legal provisions and various legal maneuverings that can essentially make a whole case "go away." It is not the purpose of this article to examine those things, as doing so would require a series of articles. If the reader is really interested in that, he or she can search around in this blog, as I have covered that subject in prior articles. Here, we are looking at how the role of who you are, as a person can affect whether or not getting out of something is possible, or even probable. Finally, I should be clear that by choice, I am a Detroit-area criminal lawyer, handling cases in the courts of Macomb, Wayne and Oakland Counties, as well as Lapeer, Livinston and St. Clair counties, and I write from my repeat, decades-long experience in these locales.

In general terms, we can assess a person in terms of "social capital," meaning where he or she is in life. This does not mean that a person is quantified in terms of earnings or net worth, but rather on how "solid" he or she is relative to things like having a job and connections to the community. For all the analysis we can do, imagine you are the Judge in 2 cases involving an identical and relatively minor offense. The first person to stand in front of you is a middle-aged, married woman who owns a home and has 2 kids and a good job. She has never been in trouble before. The other person is a 20-year old male who is unemployed, unmarried, lives with a few other guys as "roommates" and has 2 prior convictions on his record. Who do you think is the better candidate for a break?

Things like having a job matter. The actual job you have isn't nearly as important as the fact that you have one. When people work, they are busy, and have less time to get in trouble, and more to lose if they do. People who don't work can be seen as having too much time on their hands, whereas people who have a job and other responsibilities usually have too many hands on their time. I'm sure there are some people in this world who seem to be perfect, but nobody really is, and all of us do dumb things every now and then. None of the highbrow intellectual analysis in the world can put it better than the pedestrian, if not crude expression, "S#it happens." If you have to deal with a criminal charge, and for all the explaining you can do, that expression pretty much sums things up. Now the question becomes, "What are you going to do about it?"

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May 9, 2014

Finding the Right Criminal or DUI Lawyer in the Detroit area of Michigan

Talk about turning the tables; I recently had switch roles from being a Michigan criminal defense lawyer to searching for a criminal lawyer in another state for a relative who lives there. One of the "perks" of being the lawyer in a family is that I get the call, day or night - weekday or weekend, if someone gets into trouble. In the case at hand, all I could do was explain how the charge would be handled if was pending here, in Michigan. Eventually, I was asked to help find a lawyer for the relative. There I sat, a lawyer pretty good at marketing himself, now having to wade through a sea of websites to find a good lawyer - the right lawyer - for someone else, clear across the country.

My wife began the search, asking me what, in general, she should be looking for. Here, I am proud to say that we were looking for someone who would essentially be my out-of-state equivalent. I explained to my wife that while I have some expertise in being found as a lawyer, I have no experience in finding one. I suggested that she search the name of the charge and the city, sort of like someone in Michigan may search both "Clinton Township" and "indecent exposure," or "Sterling Heights" and "embezzlement," or "Rochester" and "DUI."

seo-searching 1.2.jpgWe certainly got results, just way too many of them. Now we had to narrow things down, so we started slogging our way through some websites. It was strange being on the "other side," because I wasn't just looking to look; I needed to find a lawyer. Whatever critical eye I had developed in evaluating another lawyer's website shifted from my interest in his or her marketing, or potential to compete with me, to the need to find someone for my family member. I was exactly the target market to whom these sites were catering, and I had to quickly pick my way through them to find a real lawyer or I'd be buried alive in lawyer websites.

I quickly began to develop a kind of dislike for lawyers. I felt like I was being attacked by a mob of car salespeople and real estate agents. Every site promised that its lawyer was tougher and more aggressive than anyone else. The real kicker came when I tried to find some information about the charge. I had told my wife that I wanted to find a lawyer, like me, who put up some explanatory information and perhaps had a blog that afforded him or her the opportunity to go into more detail. I learned real quickly that I more or less stand alone by way of the writing I do. Nobody here, meaning in Michigan, and nobody in the state in which I was looking, writes anywhere near the amount of stuff that I do. I have always assumed that most people would look for a lawyer the way I would. I want information and the ability to get a good feel for the person whose name is on the site. Accordingly, that's how I've structured both my site and this blog.

As I continued my search, it became apparent that I was wrong about that. Most sites, it turns out, are long on marketing and short on information. This troubled me, because writing my twice-weekly blog articles allows me to share my approach to cases and my personality with the reader. I'm an explainer, which, in person, translates to being a talker. I'm not quiet. By communicating the way I do, I have probably saved myself countless hours since prospective clients can read my stuff and decide that I'm either on the short list, because they like the way I present things, or that I'm off that list completely, because they don't. I try to explain things in a way that answers some of the more common questions people have. This has the added benefit of saving me from having to explain the same, basic things over and over, day after day, week after week. This also helps narrow my prospective client base down, for the most part, to people who are looking for an explainer. If someone wants to hire a lawyer who's the "strong, silent type," it won't take long to figure out that I'm not that guy.

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January 27, 2014

Michigan Drug Crimes - Drug Charges in Macomb, Oakland And Wayne Counites

As a Michigan criminal defense lawyer with over 2 decades of experience handling cases involving drug possession charges, I have seen and wrestled with and resolved every facet that one of these cases can brings your life. This article will be a short examination of what it means to face a Michigan drug charge," and what can be done about it. The goal of hiring a lawyer in the first place is to make things better, so we'll see how that can be done, and how, in some cases, the entire charge can be made to "go away" and never show up on your record.

There really is no "typical" drug case. Even so, chances are, if you're reading this, a few relevant conclusions can be drawn about you: First, unless you're hopelessly bored and have otherwise read all the other books and articles in the world, either you, or someone you care about is contending with a drug charge right now. Second, if you've read this far, you are more interested in an intelligent discussion of this topic than a few short lawyer-centered statements like "tough," "aggressive," "experienced," or "call now!" This means that, whatever else, you, or whoever the person for whom you're doing this, has a life that matters. Given the level of my representation, none of my clients are "hard cases" that have squandered everything and everyone from their lives over a decades-long drug addiction.

DRUG+ARREST 1.2.jpgAccordingly, I get a lot of "pill" cases, or cases involving someone with a good job having been caught with a little coke (not crack) or some marijuana. Often enough, I am contacted by a parent for a son or daughter whose association with the wrong crowd has led him or her to make some bad decisions, ending up with a drug charge. This is where the parents step in to protect their child's future rather than let him or her be handicapped with a drug conviction on his or her record before ever really venturing into the job market.

And if there is no "typical" drug case, there are certainly a few "typical" concerns that people of solid social status have when confronted with a drug charge. As I hinted at earlier, in my reference to "hard cases," the career drug addict locked up again, for the umpteenth time has no concerns about his or her record. Usually, his or her only concern is when they can be released so they can get back to using. People with good jobs or educations, however, can suddenly be confronted with a host of considerations they never figured they'd have, and principal amongst them is having a drug conviction on their permanent record.

This is really an important issue. We can skip the "you should have though about that" lessons for now; if you have a good job, or an education that can get you a good job, having a drug conviction on your record can make things difficult, or even impossible. A drug conviction can have a real life negative impact on your future. We need to work things out to avoid that, at all costs. That does NOT mean, however, that you should be taken to the cleaners for legal fees.

I list my prices right on my website. While I am quick to caution anyone about thinking you're going to get top-level service from some cut-rate legal operation, I also think it is important to bear in mind that handling a drug case is, in the vast majority of cases, far from a complex legal problem. In fact, if handling a drug case isn't routine for your lawyer, then it's safe to say you got the wrong lawyer. My fees fall right about in the middle range, which is exactly where they should be.

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August 23, 2013

Michigan Criminal and DUI Charges - will Anyone find out About me Being Arrested?

It costs a lot of money to advertise and a lot of time to become well known as a Michigan criminal lawyer, or a Macomb DUI lawyer, or even a Michigan driver's license restoration attorney. In fact, to become "known" through advertising, in any of these capacities, at least by the general public, would cost a fortune. As a result, when a case comes along and a lawyer is contacted by the media about his or her client, the opportunity for what amounts to hundreds of thousands of dollars of "free" publicity presents itself. Without thinking, many lawyers will jump at the chance, often with a vague recollection of the notion that "there's no such thing as bad publicity." This is selfish and shortsighted thinking, at best.

If a lawyer's primary concern is getting his or her name "out there," then this is like winning the lottery. If, however, the lawyer's primary concern is the well being of his or her client (as it darn well should be), then deflecting, rather than basking in the spotlight is very often the better, if not the more expensive choice. The inspiration for this article is the result of a recent case that came into my office. As I discussed the matter with my senior assistant, Ann, we realized that by doing the right thing for the client, I would literally be turning away an incalculable amount of free publicity. Yet it is precisely in my client's best interests for this case to disappear, as much as possible, from the public radar.

Headline News 1.2.jpgImagine that you are arrested for some kind of criminal charge, or even a DUI, and somehow or other, it winds up in the paper, or on TV. It doesn't have to be a feature or huge, front-page story, but for some reason word of your arrest gets out. Immediately, people who know you start talking. Your employer may find out. At that point, what's the best thing that could happen? When you really think about it, the best thing that could happen is for the whole thing to just go away. There is no way to undo the publicity that has already been given to the story, so what you really want is that no one else hears about it, and that everyone who already has just forgets about it.

That won't happen with some self-serving lawyer yapping away about your case. No matter what he or she says, or how much he or she insists that you're innocent, all the attention is just that- attention, and it focuses right on you. If you want a situation to go away, you need to make it go away, and the first way to achieve that is to NOT talk about it. Over the years, I have quietly been involved in many cases that have started out being watched by various media outlets. You wouldn't know about any of them, and that's precisely the point.

Beyond just deflecting attention away from a client, I believe in deflecting it away from the officials involved in it, as well. It is far better to handle a case when neither the prosecutor nor the Judge feel the weight and scrutiny of the public gaze. To be sure, there are some cases that will always hold the public's attention. When a public figure (think Kwame Kilpatrick or O.J. Simpson) is in trouble, the media will follow the case no matter who says what. There are also certain kinds of cases that capture the media's attention just because of the facts. Most often, these are serious cases. A particular murder, kidnapping, or even case of the church secretary embezzling hundreds of thousands of dollars will sometimes be "interesting" enough to follow independent of anything any of the parties say about it.

It's sometimes easy to forget that Judges are elected officials. So is the county prosecutor. As much as any politician wants "good" press, he or she certainly wants, more than anything, to avoid any "bad" press. Being seen as soft on crime is not a political asset. Imagine, for a moment, that you're a Judge. When election time rolls around, do you think it could ever hurt you to be known as the Judge who is really tough on drunk drivers? Yet if your opponent were challenging you by claiming that you had been too soft on drunk drivers, you'd be stuck defending yourself. Looking at it from an electability standpoint, being seen as tough on drunk drivers is an asset, while being seen as too soft is a political liability.

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April 5, 2013

Detroit Criminal Lawyer Defined and Redefined

Recently, a number of social introductions have had me explaining what kind of Lawyer I am, meaning the kind of work that I do. No one asks a polite question like that and hopes for a long, boring answer. Accordingly, I have been forced to generally define myself as a "Criminal Attorney" and then quickly point out the things I don't do, in order to quickly "explain" myself. I do not, for example, handle rape or murder cases. I have a rather specialized Practice. I only handle Criminal and DUI cases in the Detroit-area, meaning Wayne, Oakland and Macomb Counties. Moreover, I stick to DUI's and cases like drug possession, suspended and revoked license charges, embezzlement and indecent exposure charges, as well as probation violations. This means I have decades of experience handling the same kinds of cases in the same group of local Courts, working with the same Prosecutors and appearing in front of the same Judges.

This allows me to charge my Fees in exchange for providing services based upon twenty-plus years of related, meaning relevant, experience. When you think about it, anything less and you're just paying your Lawyer's tuition. I've been fortunate to cultivate a practice that keeps me busy enough to be able to only have to work within my comfort zone, and years ago I marked that off as the kinds of cases I have handled regularly and that I like doing. I like handling embezzlement and indecent exposure cases; I don't feel the same way about domestic violence cases.

Lawyer Shadow 1.3.jpgDoes this mean that I don't handle "other" kinds of criminal cases? Of course not! Not too long ago, for example, I was called upon to represent a college-bound high school senior who, along with a few fellow teammates from his school, found himself running by some local railroad tracks. Well, "boys will be boys," as the saying goes. Taking a break from their running, these young guys got the idea that if a train cuts a penny in half rather cleanly, it could probably cut a few other things in half, as well. Looking around, they found a few things that seemed, at least at the moment, way more interesting than a penny, like a discarded car tire and some other debris near the tracks. Clearly thinking more like the kids they were rather than the adults they'd eventually become, they lined up some "stuff" on the tracks to see what would happen when the train ran it over. When they heard a train approaching, they hid nearby.

As he approached, the train conductor was afraid the train could be derailed as it ran over all the debris the boys had placed on the tracks. Unfortunately, by the time he saw it, there was no way to avoid running over it. He radioed ahead for the Police, who showed up, rounded up the boys, and charged them with Felonies, including attempting to derail a train. As serious as the consequences might have been, none of these boys, including my Client, ever thought about doing such a thing (which, of course, was part of the problem).

I was contacted by the family and hired to represent their son. I managed to keep the whole thing completely off of his Record, and about 9 months after the case began, it was closed out and my all-the-wiser Client headed off to college, conviction-free and no longer on Probation.

The "attempted derailment" charge in that case was a first for the Judge, who has been on the bench a long time, and first for the Prosecutor, who has been at his job for over 20 years, as well a first for me. Even so, this case fell precisely within my range of experience, even though the exact charge is rarely ever brought. My point is that while it did not fall precisely within the description of the kinds of cases I regularly handle, it was something squarely within the scope of my broader experience and well within my "comfort zone."

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January 25, 2013

Michigan Criminal and DUI Lawyer Protects you and your Interests

This article will be about how I really help my Clients not get pounded in a Detroit-area DUI or Criminal case. Sometimes, tired and old worn-out phrases can really get on your nerves and become meaningless to the point that you roll your eyes when you hear them. Around election time last year, when the TV was filled with political ads, I heard enough baloney to the point that I was nauseated. Every politician wanted to protect me, my family, and my rights, even though I'd never heard of them before and haven't heard a thing from them since. I can only wonder what they're doing right now to help protect me...

The same thing, I'm afraid, holds true when Lawyer's talk about "protecting your rights." That's not to say most Lawyers don't actually do that, or at least try to, but the fact of the matter is, if you are facing a DUI or Suspended License or Marijuana case (or any other Criminal charge, for that matter), and you wind up getting hammered with all kinds of classes and counseling and testing and everything else, you won't feel that you had been very "protected."

security-guard-picture 1.2.pngThe first thing to do here is to sort out the difference between protecting your rights and protecting you. "Protecting your rights" is pretty much just a slogan. Think about your rights for a moment. No one is out to steal them. Once in a while the Police act in a way that violates certain of your rights, but by time you ever call a Lawyer about it, it's too late. Consider the right against unlawful search and seizure. Assume the Police conducted an illegal search of Dan the Driver's vehicle and found marijuana. Dan gets charged with a DUI and Possession of Marijuana. He hires Larry the Lawyer to defend him. Both Dan and Larry are angry over the violation of Dan's rights...

Big whoop. Unless Larry can turn back the hands of time, there is no way to "protect" Dan's rights; they've already been violated. Of course, Larry can challenge the admissibility of the evidence, and protect Dan from being convicted as a result of an unlawful search and seizure, but in terms of protecting Dan's rights, it's too late for that.

My point is that it becomes my job to protect my Client. Instead of talking about "rights," we should be talking about "interests." A person can wind up pleading straight up guilty to a charge of Operating While Intoxicated (OWI, or what is commonly called a DUI), and can get slammed with Probation from Hell all the while having some Lawyer make sure none of their rights were violated. Can you imagine a Lawyer, when it comes time to address the Court at Sentencing, saying to the Judge "Your Honor, I am here to make sure that none of my Client's rights are violated"? What could be more meaningless than that?

It's far more important to address the Judge and make sure I get every break in the book for my Client. I need to make every part of the Sentence as easy and lenient as possible. Success in any case is generally measured by what happens to you, and, in the same sense, by what doesn't. Keeping my Client's out of Jail is part of protecting their interests, but it doesn't stop there.

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November 5, 2012

How Michigan Embezzlment Charges are Investigated

Embezzlement cases have always been a large part of my Criminal Practice. Having handled countless Embezzlement charges in Macomb, Oakland and Wayne Counties, I've grown to like them. I have written a number of Embezzlement articles on this blog, and have given the subject a concise overview on my website. Instead of rehashing the whole process of being contacted by a Police Detective (or Loss Prevention person from a company) and how to assert your right to not incriminate yourself, all the way to how these cases are usually resolved, this article will focus more on why the investigation into an allegation of embezzlement is usually quite different in character from the investigation into any other alleged Criminal Offense.

In the first instance, there is almost never a situation where the Police discover "Embezzlement" without there having first been a report from an outside source. Other kinds of Criminal charges, such as DUI, or Possession of Controlled Substances, or even Indecent Exposure, are discovered, or "happened upon" by the Police as part of their routine patrols. That doesn't happen with Embezzlement.

Inestigate 1.2.jpgMost often, an employer suspects Embezzlement by an employee after the discovery of something "strange." Here is where the scenarios can be all over the map. In some cases, a little "skimming" may have gone unnoticed for years and years. In other cases, a suspected monetary shortfall is questioned, and irregularities turn up. Embezzlement charges can involve things from unauthorized charges on an employee charge card or expense account, to the distribution of funds through bogus checks, sales commissions paid, or merchandise obtained from "fake" sales, as well as just about anything else you can imagine where merchandise, money or "value" has been diverted from the employer.

Whatever else, Embezzlement charges arise because something "irregular" is noticed. I've seen cases where the person in a particular position has been out sick, or transferred to another duty, and the new person covering their old position, in trying to figure out how to do things, has discovered that things don't quite add up. Sometime, a business, while conducting an audit, finds the "blackjack math." However it is found out, someone, somewhere, spots some detail that doesn't seem right, and that becomes the spark that leads to a further inquiry.

Once that further inquiry begins, things usually fall together pretty quickly. Over the years, I've received loads of calls from people rather nervous about being contacted by their boss, or some "superior" from their company. As I explore what's going on, I learn that usually, some financial irregularity has been discovered, and the employer has decided to dig deeper into things. Often, the person at the center of it all is hoping to come up with a sufficient explanation to cause the matter to be dropped, but in real life, that never happens. Once an employer finds that the math doesn't add up, they'll keep looking. After all, it's not as if an employer finds out that its bank balance has been inexplicably credited with extra money from some unknown source. Once any normal person catches a whiff that they're being shorted, they'll follow that scent to wherever it leads.

At the point that an employer suspects someone particular of Embezzlement, things can go in many different directions. In a smaller workplace, there is often an immediate confrontation with the suspected employee. In larger companies, the employee may have no idea he or she is being investigated. Companies large enough to have a Loss Prevention Department may set up surveillance of the person, and let them continue to work, unaware that their actions are being closely watched.

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September 28, 2012

Indecent Exposure in Michigan - Stay out of Jail and save your Record

Indecent Exposure charges are very different from other Criminal charges on almost every level. Many Indecent Exposure charges are brought only after the Suspect has been contacted by the Police after a license plate number that was provided has been checked. In contrast to Drunk Driving or Drug Possession cases, which almost always begin with the Police observing or otherwise discovering the person doing the very thing with which they are charged (i.e., driving drunk, or possessing illegal drugs), many Indecent Exposure cases require a little preliminary Police investigation.

That said, a significant number of Indecent Exposure cases come about as the result of the Police stumbling upon a person in a compromising position, as well. There is a decent chance that if you're reading this, you've just had some firsthand experience with one of these two scenarios.

Sared Little Guy 1.2.jpgI know how nervous and scared a person feels in this situation. I've handled more of these cases than I can count. In every one of them, that volatile emotional mix included a strong dose of embarrassment, as well. Thus, when I speak of a person needing some "protection," I mean that, beyond someone to just look out for their Legal well-being, they need someone who can understand the emotional stress and fear they're experiencing. That's where I help.

I not only understand how a person facing either a simple Indecent Exposure charge, or the more serious Aggravated Indecent Exposure charge feels, but I know that, very often, there is some other source of stress in the person's life that led to the incident. You'd be surprised at the kind and status of the people who wind up facing one of these charges. In fact, quite unlike what someone on the outside might at first imagine, many of the people who wind up facing some kind of Indecent Exposure charge are "above average" or of a distinctly "higher level." I've represented every kind of person in this situation, from the proverbial "average guy" to men with advanced graduate degrees.

In almost every case, a person's top two concerns are their Record, and staying out of Jail. One could sarcastically say that if you're facing an Indecent Exposure conviction, you should have thought about that beforehand. Yet whatever incident brings on such considerations, and aside from whatever did or did not happen, protecting your Record is a huge priority.

Of course staying out of Jail is important, as well as avoiding a term of difficult Probation. Keeping you out of Jail is rather easy for me, and that sometimes comes as both a relief and a surprise to my Clients. In fact, I've never had a single Client of mine go to Jail in an Indecent Exposure case, and I've handled more of them than I can honestly count. The whole point of hiring a Lawyer like me is to make the outcome of the case, meaning what will actually happen to you, better.

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September 24, 2012

Embezzlement in Michigan - Hire the Right Lawyer

In almost every Michigan Embezzlement case, a Police Detective first contacts the person who is ultimately charged before any charges are ever brought. In my role as a Criminal Defense Lawyer, I am frequently contacted right after someone receives their first call from the Police. Nervous, and wondering what to do (as well as what not to do), they find my website section about Embezzlement or my various articles on the subject. They read a little, then, they call my Office.

If you've been contacted by the Police, then you know that sinking feeling. If you've actually talked with a Detective, you likely hung up the phone scared out of your wits, and knowing you need help. I hate anything that sounds like scare tactics, but it's just a fact that if you are facing a potential Embezzlement charge, you need competent and specialized legal protection. I provide that.

shut up 1.3.pngI really can't remember when or why Embezzlement cases became such a mainstay of my Criminal Practice, but in the last number of years, I've handled countless such cases in Macomb, Oakland and Wayne Counties. It seems that I have a certain aptitude and skill in handling these cases, and those qualities are repeatedly honed by frequent experience handling them. And for all of that, I rather like these cases...

Part of this, I think, has to do with my attitude and disposition toward my Clients. I've seen Embezzlement cases of every kind and stripe, from the simple to the complex. I've handled cases where a "little" bit of money didn't make it into the employer's deposit, until it added up to a substantial amount, to situations where goods or services were sent, or payments were made, to fictional persons or companies. In fact, if you can imagine it, I've probably seen it. Whatever else, a person dealing with an Embezzlement case needs to have a Lawyer who is non-judgmental and works to make things better for them.

In order to make things better, however, I have to assume the role of a diplomat. Many of the cases I handle are pretty clear-cut, and the evidence against my Client is pretty strong. In these cases, I have to be able to work with the Prosecutor and the Detective in charge of the case, and, most importantly, with the Judge, in order to make things materially better for my Client. And make no mistake about it, "better" means no Jail.

In other cases, a vindictive former employer may be driving the charge against a person, or, if there's anything to the charge, at least ratcheting up the amount of money involved. This can be tricky. A person may be on the hook for "X" amount of money. Yet when the former employer, who, in an embezzlement case, is called the "victim," claims losses more than that, the sympathy factor for the Defendant is pretty low, and he or she has a hard time being heard. Nobody is really worried that the "bad guy" (or gal) is being overcharged, legally or financially. Except me; I am.

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July 9, 2012

Michigan - Traffic Stop and Possession Charge in the Detroit Area

A Traffic Stop by the Police can lead to all kinds of troubles. Most DUI cases begin with a Traffic Stop. So do a lot of Drug Possession cases, as well. This article will focus on those Traffic Stops where drugs are found, and result in a Possession charge. Within my Practice, most of the Possession charges I see involve things like Marijuana or prescription medications like Vicodin or Xanax, and usually begin by being pulled over.

In the preceding article, I pointed out that about 90% of my caseload (consisting of things like DUI or related matters, such as Drug Possession cases and Driver's License Restoration Appeals) begin with a Traffic Stop. In that regard, almost all of my day-to-day work can trace its origin the operation of a motor vehicle, and contact with the Police as a result.

MSP RUn 1.2.jpgIn the real world, far more Criminal cases than one would ever think begin with a Traffic Stop. Just by running a person's License, the Police frequently discover that an unpaid Ticket has led to a Suspended License, or that a person has an outstanding Warrant for some matter or other, and the Driver suddenly finds him or herself in the back of the Police car, while their car gets searched. That's when things often take a turn for the worse.

There are about a million ways this can happen. A person may get stopped for weaving, and as part of a DUI Arrest, marijuana or some other drug is found. The Police can arrive on an accident scene and somehow turn up a few prescription pills from somewhere. However it happens, it happens, and a person winds up facing a Possession charge, or a Paraphernalia charge that all began with a drive or a ride in a vehicle.

Frequently, after the Police search a person, or their car, and then Arrest them for Possession of something like analogues, marijuana or any other controlled substance I am asked, "can they do that?" I have to chuckle at that question, because the answer has already been given: Of course they can do that - they already did it!

The real question, of course, is whether the search is legal. And this is always a critical inquiry in any Traffic Stop case that leads to a possession charge. Before even considering that question, however, the whole reason for the Traffic Stop, or the initial Police contact itself, needs to be questioned. If there is any legal basis to have the Stop ruled improper or unlawful, then any and everything that takes place thereafter will never see the light of day in a Court of Law, including anything that the Police find. The Police need a reason to pull someone over, and while there a million reasons that they can "give," sometimes, the very circumstances themselves tend to contradict the reason "given" for the Stop.

In assessing the legality of the Stop, it is important to find out if there is any Police in-car video. The Police can say anything they want about why they pulled someone over, but, as the old saying goes, a picture is worth a thousand words. Dash-cam video can give clarity to unresolved questions between competing versions of the same story. It can be a wonderful tool to challenge a Traffic Stop, or what takes place during the Stop, especially when the Police are more obviously acting more on a "hunch" than anything else.

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April 6, 2012

Free "Expert" Amatuer Legal Advice for Detroit-Area Criminal, DUI and LIcense Restoration Cases

In a recent blog article, I warned against using some family member or friend that happens to be a Lawyer, to handle a Detroit-area Criminal, DUI or Driver's License Restoration case. The point of that admonition was to avoid getting involved with a Lawyer who offers or otherwise thinks they can "do" one of these cases, even though their area(s) of Practice is something different. Since I'm on a roll about the things a person should NOT do, this article will address another fairly common "no-no" that never does anything good; the "legal advice" from well meaning friends or family-members who are NOT Lawyers.

Some Lawyers call this "bar stool legal advice," because it is, at best, the kind of b.s. a person hears from the "expert" sitting on the next bar stool. As a Lawyer who concentrates in Drunk Driving, Driver's License Appeal and certain kinds of Criminal cases, I have had to deal with this countless times in the past. Honestly, I hate it; I have little patience and less time, really, to hear, second-hand, the amateur legal analysis of some non-Lawyer. Having endured it from my side of the desk, it has changed me as a Patient or Client or customer when I'm sitting on the other side. Ask any Lawyer or Doctor about the helpful, know-it-all relative, and you'll get a knowing smirk accompanied by a roll of the eyes.

Cheapo Lawyer2.1.jpgWithout fail, every time I am confronted with the expert legal opinion of some inter-meddling non-Lawyer, I have to explain how and why they are wrong. Never, in 22 years of being a Lawyer, have I learned anything I didn't already know. No one has ever made me aware of a Law or rule of which I wasn't already familiar, and I have never been presented with a strategy better than that which I already had.

Instead, when someone says "A friend of mine told me...." or, "I have a friend who is a Police Officer," or, "My brother had the exact same kind of case," I know that I'm about to have to waste some time explaining things.

No doubt the advice given by these well-meaning souls was tendered with only the best of intentions. Yet that doesn't make the advice itself any better.

To put this in perspective, I regularly represent Lawyers and their friends and families in DUI and Criminal matters. Invariably, the Lawyer, unless he or she is the Client, serves as the contact person, and explains that such a case is outside their field of experience. They understand the meaning of the saying "you don't know what you don't know." Accordingly, they defer to the person who handles such cases day in and day out - me.

Sometimes, a Lawyer will simply need information about something that is beyond their area of Practice. This happens to me, and to just about every Lawyer who has real life Clients. The more cerebral amongst us will call another Lawyer who handles the kind of matter about which we want to inquire. Why talk to someone who makes his or her living doing something else? Why would anyone with a brain listen to the advice of some "Jailhouse Lawyer?"

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March 23, 2012

Why Everyone Should Avoid Using a Relative or Family Friend as a Lawyer for a Michigan DUI, Criminal, or Driver's License Restoration Case

Of all the complaints, excuses, and other remarks of regret that I hear within my Law Practice, the reader probably has no idea how many come from Clients who previously had a Lawyer, who is also a relative or family friend, handle a Criminal, DUI, or Driver's License Restoration case. This is always within the context of the person explaining an outcome that was disappointing. This is usually followed by an explanation that the Lawyer relative or family friend wasn't "really" a Criminal Attorney or DUI Lawyer, or otherwise said they could "do" a License Appeal.

And if that's not enough, way too many of these people either try to make themselves feel better by telling me they got a real "break" on the Fees, or they express further regret because they not only didn't get any kind of "break" on the Fees, but were instead "taken to the cleaners" by paying way too much for a Lawyer who didn't really know what he or she was doing.

Warning2.jpgI specialize in License Restoration, DUI and Criminal cases. I don't handle Murder or Rape cases, and there are loads of other types of cases that I will not accept. I only take on the kinds of cases that I know how to handle, and which I have handled before. The world would be a much better place if every Lawyer stuck to what they knew. I would never, for example, take on a Divorce case. And when I need Legal services, (in a Civil Lawsuit, for example), I hire a Lawyer who specializes in that field. I certainly have lots of "friends" who are Lawyers, but I know, firsthand, that in the Legal world, while you may not always "get what you pay for," you will NEVER get what you DON'T pay for.

The situation I am describing most often arises when I am speaking with a new Client and I inquire about what appears to be a questionable result in a prior Criminal case. All too often, these people somehow wind up talking to a family member or a friend (or a friend of a friend) who is a Lawyer and who offers to help. As I noted above, these situations often devolve into one of two things:

  1. The Lawyer (in this case, usually a relative), offers to help, and means well, and even handles the case for free, or at a very reduced Fee, or
  2. The Lawyer, (in this scenario, often either a family friend or a friend of a friend) after being contacted, agrees to accept the case.
In the first situation, it is just luck, pure and simple, if the person in need of a Lawyer for a DUI, Criminal or License Appeal case happens to be related to a Lawyer who specializes in this field. Instead, Uncle Phil or Cousin Lisa all-too-often turns out to be some kind of General Practitioner, or a Lawyer who handles Divorces, or some field other than DUI or Criminal matters.

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March 9, 2012

How to Beat a Detroit-Area (Michigan) DUI and Cure Cancer at the Same Time

This article will admittedly be a bit sarcastic. As part of my DUI Practice, I'm in Court almost every day in Macomb, Oakland and/or Wayne County. I sit shoulder to shoulder with many conscientious Lawyers fighting hard to reduce the consequences of a lapse in judgment that results in a person being Arrested for Drunk Driving. We compare notes and exchange information. No one laughs these cases off and talks of having it dismissed like some speeding Ticket where the cop doesn't show.

No one, at least, except those trying to sell that very idea. And those operations are making a lot of money at it.

snakeoil1.2.jpgTime and time again, I meet with a new Client, often for a 2nd Offense DUI, who is a bit concerned and reticent about the whole DUI Lawyer thing because, they admit, they spent $5000, or $10,000, or even more on the Lawyer who handled their 1st Offense DUI and sold them the "we'll beat this thing..." bill of goods.

Am I a bit jealous of the huge income these slicksters make in this racket? Absolutely. Would I ever do such a thing just to make money? Absolutely NOT.

The truth is, I think I'm as good a writer, if not significantly better, than anyone behind those operations. If I wanted to, I could devote my efforts to crafting the most convincing-sounding blogs and web pages around, and stand back and cash in by selling the notion that if you really try, you can beat almost any DUI. But I won't do that, because it's wrong.

Which is not to say that beating a DUI is impossible. Far from it. I knock out a DUI anytime I have a case where it can be done. It's just that, statistically speaking, it's unlikely, at least in most cases.

To prove my point, I "googled" the phrase "cure cancer." Sure enough, there are plenty of smooth operators out there with all kinds of products you can buy for just that purpose. From vitamin cocktails to holistic lifestyle overhauls, if you're willing to spend big money on a long-shot hope, there is someone out there willing to cash in.

The analogy doesn't end there. If you think about it for a moment, this means that all those hard-working Doctors treating cancer patients are either deliberately ignoring the vitamin-cocktail cure for cancer thing, or they're just plain stupid. Instead, the inquiring mind is asked to believe that it is this handful of snake-oil salesman who really have the answer, not the medical community at large.

Do you really believe that?

Unfortunately, enough people do to keep these vitamin-cocktail operations in business.

The same holds true in the field of DUI defense.

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February 24, 2012

Michigan Driver's License Restoration before the DAAD (DLAD) and Legal Fees

Within my Practice as a Michigan Driver's License Restoration Lawyer, I encounter 3 types of people:

  1. Those who want to handle a License Appeal properly, and who are committed to putting in the time and effort and handling the Fees involved,

  2. Those who are searching for a "deal" and are out looking for the low bidder in terms of Fees, and

  3. Those who don't want to hire any Lawyer, preferring instead to try an Appeal without Representation.
All of my Clients fall into the first group. I charge $3000 for a License Appeal case (that price will likely be going up in the not too distant future), beginning with $1000 down at the first meeting with my Client, which typically takes about 3 hours.

moneymobile1.1.jpgSome of my Clients previously fell into the other 2 groups. Then, after trying unsuccessfully to win a License Appeal case, they more or less moved themselves up into that first group.

In this article, we'll explore the issue of Legal Fees in a Driver's License Restoration case. I will share my thoughts on the whole issue of Fees, and the services they should cover.

One thing to note about my entire perspective in License Appeals is that it is founded upon my Guarantee that I will win any License Appeal I accept the first time, or any subsequent Appeal before the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD), until the Client wins and gets back on the road, is free. At its simplest, this means that I make my money winning these cases the first time. Every time I ever have to go back (thankfully, that almost NEVER occurs), my income is cut in half, and my workload doubles. I want my Clients to know that I want to get them back on the road as much as they want to be back on the road.

I charge the Fee I do because I am the best License Restoration Lawyer I know. I win these cases the first time, all the time. In the last several years, I have only lost a mere handful of Appeals. And while I could offer excuses for those exceptions, I do believe that, in the end, the only thing that matters are results. This is why I back up my claims with a Guarantee.

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February 17, 2012

Detroit-Area Ciminal and DUI Cases - Finidng a Lawyer and Dealing with Disappointment

Within the numerous articles of this blog, I have tried to write about real issues and provide real insight into the kinds of cases and concerns that real people encounter in the real world. In a manner of speaking, I try to "keep it real." Humorous word use aside, it has always been my goal to write about those things that are relevant in readers' lives. On top of that, having just finished a 7-part, very detailed series about the Steps in a Detroit-Area DUI case, I was looking for a subject that would allow me to write a shorter article.

Inspiration hit when I was speaking with Ann, my Senior Assistant. As we were going over the morning's emails and phone calls, she rather causally observed that we had received our usual load of emails that express the writer's interest in hiring my Representation, yet conclude with the sender asking me to call them, as well as the usual number of inquiries from people who have unresolved issues left behind from a case for which I was NOT their Lawyer. Most of the time, the person indicates that their former Lawyer didn't do or explain something well enough, and other times, the person admits having tried to "play Lawyer" by representing themselves.

SadFace.2.jpgThis article will address why I NEVER get involved with another Lawyer's work, especially after the fact, and why I almost NEVER take on any post-Sentencing or Appellate-type work. I will also explain why I think almost anyone who takes the time to email me, then asks for me to call them, is a "time waster."

First, the "time wasters." While there are numerous situations in which a person might drop me an email inquiring about something or other, particularly in the context of Driver's License Restoration cases, anyone serious about moving forward in a case will note my business hours and call my Office. It is simply far more convenient for a person to call my Office during regular business hours than it is for my Office to try and manage a call to someone during the hours they provide. Thus, instead of a person providing a phone number and indicating that are available between certain hours, it just makes more sense for them to call my Office during those times.

Add to this that, over the years, we have found that those same emails very often result in our leaving a message anyway. Look, if you're serious about wanting to talk to us, then call. Why ask us to call you? I don't email my Dentist's Office after hours and ask them to call me to set up and appointment. I just call and make one.

Lately, when people leave such emails, we'll simply respond by telling them that we're open M-F, from 8:30 to 5, and can be reached at 586-228-6523.

Continue reading "Detroit-Area Ciminal and DUI Cases - Finidng a Lawyer and Dealing with Disappointment" »

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February 13, 2012

DUI, DWI and OWI in Michigan - A Detailed Look at how These Cases are Handled in the Detroit-Area - Part 7

In Part 6 of this series, we reviewed how the Pre-Sentence Investigation (PSI) Report and Recommendation is completed by the Probation Officer, and how the DUI Driver and his or her Lawyer review the Report and Recommendation in Court, before the actual Sentencing, in order to make sure that the information contained in that Report is accurate.

In this seventh and final installment, we will wrap up our series on the Steps in a Detroit-area (meaning Macomb, Oakland and parts of Wayne County) DUI case by looking at the the 8th and final step in any DUI (or other Criminal case, for that matter), where the Lawyer comments on the Sentencing Recommendation to the Judge at the actual Sentencing Hearing. After this step, the Judge pronounces the Sentence, and the person learns their fate...

7three.jpg8. Commenting on the PSI and Recommendation to the Judge at Sentencing.

As I noted in the previous installment, the PSI Report and Recommendation must be reviewed, in Court, on the day of Sentencing, by both the Defendant and his or her Defense Lawyer before the Sentence can be imposed. It must be reviewed for errors, and then returned to the Court Clerk. Once the case is called, the Judge will ask the Lawyer if he or she has reviewed the Report and Recommendation with their Client. The answer must be "yes, Your Honor." Next, the Judge will ask something like, "are there any additions, corrections or deletions to be made?" Hopefully, the answer to this question will be "no, Your Honor," but this is the time to update and correct anything about the person or their background that is not accurate.

Once the Report has been accepted as accurate, the Judge will then ask the Lawyer if there is anything he or she would like to say about the Sentencing Recommendation, and on behalf of his or her Client. This is where those skills I talked about (okay, admittedly more like "ranted" about) in the previous section become so important.

Leaving the self-serving personal endorsement made in the previous section behind, this is really where the persuasive speaking skills of the Lawyer count the most. You only get one chance to "make your case" to the Judge, and this is it. What kind of conditions a person will walk out of Court having to satisfy, and, indeed, whether they walk out of the Court at all, is decided right here. It is at this moment that anyone who bargain-hunted for a Lawyer will feel the regrettable sting of "you get what you pay for." About the worst thing a person can say about the Lawyer they had is "I could have done that myself," or "My Lawyer didn't do anything for me; he (or she) just stood there!"

Continue reading "DUI, DWI and OWI in Michigan - A Detailed Look at how These Cases are Handled in the Detroit-Area - Part 7" »

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February 10, 2012

DUI, DWI and OWI in Michigan - A Detailed Look at how These Cases are Handled in the Detroit-Area - Part 6

In part 5 of this series about the steps in a DUI case, we undertook a rather in-depth analysis of the alcohol assessment testing process, including how these tests are scored by the Probation Officer who administers them. We saw that there is an almost endless number of such tests, but that the Courts most often use one of only several, each of which is simply "scored" like a high-school math test, and requires no interpretation beyond charting that score on a grid called a "scoring key."

In this sixth part, we will continue with a review of steps 6 and 7 of the PSI process:

6V.gif6. Completion of the Sentencing Recommendation by the Probation Officer
7. Reviewing and correcting the PSI and Recommendation

We will cover the 8th and final step (Commenting on the PSI and Recommendation to the Judge at Sentencing), in the seventh and final installment of this series.

In reviewing steps 6 and 7, will see how that alcohol assessment score is used by the Probation Officer in the larger process of creating the Pre-Sentence Investigation (PSI) Report and Sentencing Recommendation that will ultimately find its way into the Judge's hands.

6. Completion of the Sentencing Recommendation by the Probation Officer

Having gathered and reviewed the person's background information, conducted a face-to-face interview, and then scored the alcohol assessment test, the next step in the PSI process is now completely in the Probation Officer's hands - writing the Report and Recommendation that will ultimately be read by the Judge and used in deciding what a DUI Driver's Sentence will be.

Those readers who have followed this entire series will recall me pointing out, early on, that in a 1st Offense DUI there will be NO JAIL. This means anyone who hires a Lawyer in a 1st Offense DUI for the primary purpose of staying out of Jail is wasting their money; they aren't going to Jail in the first place. The Sole exception is for any DUI case pending in the 48th District Court in Bloomfield Hills, before Judge Kimberly Small, in which case, even if Jesus were the Lawyer, the person would be going to Jail anyway. Yet I have nothing but respect for Judge Small. I understand her reasoning, even if I don't agree with it, and find her to be a very capable Judge and a courteous, fine and polite person. I just feel sorry for any DUI Driver who winds up in front of her.

Continue reading "DUI, DWI and OWI in Michigan - A Detailed Look at how These Cases are Handled in the Detroit-Area - Part 6" »

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February 6, 2012

DUI, DWI and OWI in Michigan - A Detailed Look at how These Cases are Handled in the Detroit-Area - Part 5

In Part 4 of this article about the steps in a Detroit-area DUI, we began our rather detailed inquiry into the various "steps" of the Pre-Sentence Investigation, or PSI process. We covered the first 3 steps:

1. Setting the Probation appointment
2. The background paperwork
3. The actual Probation interview

5.1.jpgHere, in this fifth part, we will cover steps 4 and 5 of the PSI process:

4. Taking the alcohol assessment test
5. Scoring of the alcohol assessment test by the Probation Officer.

This is an intense subject, and these are serious subjects. Given their importance, we will devote this entire installment to these 2 topics. This will be a long piece, but as I often point out, there are no shortcuts to doing things the right way, and that includes studying and explaining them.

In the final 2 installments of this series, we will cover the remaining steps (6 through 8) of he PSI process:

6. Completion of the Sentencing Recommendation by the Probation Officer
7. Reviewing and correcting the PSI and Recommendation
8. Commenting on the PSI and Recommendation to the Judge at Sentencing

Here, we will resume our scrutiny of the steps of the PSI process by picking up with the alcohol assessment test.

4. Taking the alcohol assessment test.

I want to be emphatic about this: THE ALCOHOL ASSESSMENT IS THE MOST IMPORTANT PART OF THE WHOLE DUI AND PSI PROCESS. What happens at this stage has more impact on the kind of Sentence a person gets for a DUI than all the other stuff combined.

In other words, if you do well here, things will be a lot better, meaning more lenient, than if you don't. And to be clear, these tests are scored numerically. A low score is good, while a higher score spells trouble. Thus, the higher the score, the worse the result. Conversely, the lower the score, the better the result, meaning the less likely a person is to have an alcohol problem, or have the potential to develop one. Therefore, a low score is the ultimate goal when taking an alcohol assessment test.

So how do you get a low score?

Continue reading "DUI, DWI and OWI in Michigan - A Detailed Look at how These Cases are Handled in the Detroit-Area - Part 5" »

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February 3, 2012

DUI, DWI and OWI in Michigan - A Detailed Look at how These Cases are Handled in the Detroit-Area - Part 4

In Part 3 of this series, we undertook a very brief overview of DUI Trials. If the reader detected a theme something like "DUI Trials are very complicated," then I succeeded in delivering my message. The larger point was simply that no one should go to Trial in a DUI case unless they have a rock-solid likelihood of winning, or at least emerging from it appreciably better off than if they had not.

After a DUI (meaning Criminal) Trial, a person is either found Guilty, or Not Guilty. Occasionally, a case results in a "hung jury," meaning no verdict was reached, and the Prosecutor must then decide if they want to re-try the case, meaning do it all over again. Hung juries, while not incredibly rare, are rather uncommon; therefore, we won't waste any of our time discussing that unlikely type of outcome.

Four.1.2.jpgHaving started our discussion at the Arraignment stage in Part 1, through Pre-Trials in Part 2 and Trials in Part 3, we have ended up at the stage where a person facing a DUI (called the "Defendant") will have either pled Guilty to some kind of charge after a Pre-Trial, or have been found Guilty, or not, after a Trial.

The next "legal" step in any Drunk Driving (or other Criminal) case is the Sentencing. This is where the Judge decides what is going to happen to the Defendant, and Orders things like classes, counseling, breath or urine testing, Probation, and, in really bad cases, like 3rd Offense Felony DUI's, Jail.

Obviously, there will be no Sentencing if a person has been found "Not Guilty" after a Trial. In that case, a person simply goes home, and the matter is ended.

In every DUI case, however, where there has been a either Plea, Plea-Bargain, or Sentence-Bargain (or a Verdict of Guilt, if there was a Trial), there is a step BEFORE the actual Sentencing: The PSI, or Pre-Sentence Investigation. A PSI is required by Law. We'll explore it in detail shortly (this subject is rather involved, so we'll use two installments just to cover it), but before we do that, it is important to understand that the Pre-Sentence Investigation, and the legally required alcohol assessment test that is a part of it, will determine, more than anything else, what actually happens to a person at Sentencing. To put it simply, the PSI and its accompanying recommendation is the blueprint, or script, for what kind of Sentence a person will get.

Continue reading "DUI, DWI and OWI in Michigan - A Detailed Look at how These Cases are Handled in the Detroit-Area - Part 4" »

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January 30, 2012

DUI, DWI and OWI in Michigan - A Detailed Look at how These Cases are Handled in the Detroit-Area - Part 3

In Part 2 of this article, we examined DUI Pre-Trials, and we learned that, more than anything else, a Pre-Trial is a meeting where the Defense Lawyer and the Prosecutor discuss their case, and try to work out some kind of resolution (usually meaning a plea deal) in order to avoid having the case decided at a Trial.

In this 3rd installment, we'll discuss the components of a DUI Trial. The reader should note that the Library of any Lawyer who makes his or her living in Court usually contains numerous books about Trials, and Trial strategy. Since even the most abbreviated overview of Trials would result in a rather long book, our review will necessarily be rather brief. Accordingly, we will focus on the more important and relevant aspects of a DUI Trial.

Step3.3.jpgTo begin, it is fair to say that a DUI Trial occurs because the Prosecutor and the Defense Attorney are unable to agree upon a resolution. Beyond that rather "legal" description, it typically means that the Prosecutor has offered no kind of "deal," and the Defense Lawyer believes he or she can either beat the case at Trial, or at least get a better (always meaning less-serious, or severe) verdict than whatever plea offer (or not) is on the table.

In a Criminal Trial, a person's guilt must be proven "beyond a reasonable doubt." To put it plainly, at a Trial, the Prosecutor must essentially hit a home run.

If a Trial is held before a jury, then a "Guilty" verdict can only occur if ALL of the jurors (6 in a Misdemeanor case, and 12 in a Felony case) agree that the Defendant is guilty. If even 1 of the jurors does not agree, the jury is considered "hung" and the person will not be found guilty, although they may later be re-tried. If the jury, however, returns a unanimous verdict (meaning all 6 or 12 jurors agree) of either Guilty or Not Guilty, then that is the final decision.

Which brings us to as good a place as any to talk about the end result of a Trial. Everyone knows that a Criminal Trial (and a DUI case is a Criminal case) can result in a verdict of either "Guilty" or "Not Guilty." Yet there are other outcomes that can occur, and understanding them can have a huge impact on deciding whether or not to have a Trial in the first place. Let's explore this further...

Continue reading "DUI, DWI and OWI in Michigan - A Detailed Look at how These Cases are Handled in the Detroit-Area - Part 3" »

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January 27, 2012

DUI, DWI and OWI in Michigan - A Detailed Look at how These Cases are Handled in the Detroit-Area - Part 2

In Part 1 of this article, we began our detailed review of the steps in a DUI case. We examined what happens when a person is released from Jail, and then we looked at the various facets of the Arraignment stage. We ended by noting that the next step in a DUI (or any Misdemeanor Criminal case, for that matter) is called the "Pre-Trial." In this second part, we'll talk about what the Pre-Trial really is, and we'll see what does (and sometimes doesn't) happen at this rather important stage of a DUI case. We'll end our discussion once we are ready to move on to the step after a Pre-Trial: an actual Trial.

This is important. Sometimes, a person facing a DUI (or any other Criminal case) thinks that their case must go to Trial. While we'll examine Trials more fully in the next section, a Trial is what happens if no Plea, or Plea-Bargain can be worked out at the Pre-Trial stage. In other words, Trials are pretty much limited to situations where a person maintains his or her innocence ("I didn't do that...") or the Lawyer feels that the person's guilt cannot be proven beyond a reasonable doubt for some reason or other.

step2.2.jpgThe overwhelming majority of DUI cases are resolved through a Plea agreement, and that usually occurs as the result of a Pre-Trial Conference. In most cases, the Defense Lawyer and the Prosecutor come to an agreement called a Plea-Bargain. A Plea-Bargain means the charge the person is facing is reduced to something less serious. Typically, in a 1st Offense case, a person will be charged with OWI (Operating While Intoxicated) and their Lawyer will negotiate with the Prosecutor to reduce the charge to the less severe offense of Impaired Driving (OWVI). This assumes, of course, that there is no defect in the evidence that could lead to the case being "knocked out" or that could result in a "Not Guilty" verdict if the case actually went to Trial.

Sometimes, when the Defense Lawyer and the Prosecutor meet, they find that there is other information that might help them come to an agreement, or that maybe they are unable to come to an agreement right then and there, but at least feel that there is a reasonable chance they might find some common ground later on, if they meet again. In truth, there are loads of reasons why a Pre-Trial might just result in the scheduling of another Pre-Trial. In my Practice, this happens all the time.

The more important point is that most of the time, whether there is only 1 Pre-Trial, or there are 2 or 3, a DUI charge is resolved by agreement between the Defense Lawyer and the Prosecutor. In 1st Offense cases, as noted above, this "deal" is usually a "Plea-Bargain" tht reduces the original OWI charge to Impaired Driving. Of course, there can be no "deal" unless the person facing the charge also agrees. The Client always has the final say.

Continue reading "DUI, DWI and OWI in Michigan - A Detailed Look at how These Cases are Handled in the Detroit-Area - Part 2" »

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January 23, 2012

DUI, DWI and OWI in Michigan - A Detailed Look at how These Cases are Handled in the Detroit-Area - Part 1

It has been quite some time since I've gone over the steps involved in a DUI case. This article will examine every part of the process following a person's release from Jail as their case winds through the Judicial system. Because I intend to cover this subject in detail, and use some examples along the way, this article will be broken into seven (7) rather long installments. This first installment will focus primarily on getting out of Jail after a DUI Arrest, and will examine the Arraignment stage, which occurs right before, or, in other cases, right after a person's release.

As a DUI Lawyer, part of my everyday experience involves handling DUI cases. I've handled so many that I can navigate my way through the process blindfolded, so to speak. Yet even as a Drunk Driving Lawyer who has handled thousands of DWI and related cases, I need to remember that for most people, a DUI Arrest is their first experience being taken to Jail, and having to deal with a Criminal charge.

1st Step3.pngEven for those facing a 2nd Offense DUI, such a charge is often only their second time dealing with the Criminal Justice system, and they were often too nervous the first time to recall everything that occurred, beyond remembering that things weren't as bad as they feared. Now, facing a 2nd Offense, they know things are more serious.

Accordingly, we'll do a step-by-step breakdown of what a person facing a real-life DUI, whether a 1st or 2nd Offense, will be dealing with once they have been released from Jai.

To keep things clear, we'll insert 2 imaginary characters into this article, and sometimes refer to them: First-time Freddy, and Second-time Sandra. For the most part, the steps in each of their cases will be the same, but where either those procedural steps, or what they're likely to experience differs, we'll compare and contrast those differences.

One of the first things that can be different from case to case, and depends, more than anything else, on where a case occurs, is how a person gets out of Jail. In some jurisdictions, once a person's BAC (Bodily Alcohol Content) is low enough, they'll be released from Jail without having to pay a dime. In other jurisdictions, they might have to post a $100 Bond, called an "Interim Bond." In some places, they might be held until a higher amount is posted. This might mean calling someone to come and post the money.

In still other jurisdictions, before a person is released, they are actually "Arraigned" on the charge. This means they go before a Judge or Magistrate.

Continue reading "DUI, DWI and OWI in Michigan - A Detailed Look at how These Cases are Handled in the Detroit-Area - Part 1" »

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January 20, 2012

Free Michigan Criminal and DUI Case Consultation, and all KInds of Other Free Stuff, too!

To the unwitting consumer, the word "free" suggests, as it's supposed to, "something for nothing." Yet it is a basic high-school concept, often overlooked by those thinking they're about to get some kind of "deal," or even "freebie," that "there is no such thing as a free lunch."

In the Legal world, this most often arises when Lawyers offer a "free consultation." While the consultation is, of course, "free," anyone getting it needs to remember that there is no such thing as a "free lunch."

Slickster2.jpgThis article will draw back the curtain on the ever-present use of that marketing tool by so many Lawyers. And if the reader is thinking I'm going to describe myself as a shining exception to that....you're right!

In the interest of fairness, I should point out that I have and will always offer a "free consultation" of sorts. By "of sorts," I specifically mean that I will do a consultation by phone, but do not make Office appointments and drag someone in on the pretense that I want to use a precious time slot just to answer their questions. Think about it for a moment; how does it advance any Lawyer's interest to line up people for "free" Office visits with no expectation of actually being hired? Where is the money going to come from to keep that Office open and pay the staff? It is, instead, the opportunity to turn that "free consultation" into a paid retainer that's really going on, not some kind hearted, altruistic opportunity to provide a cozy environment just to answer someone's questions with no hope or chance of eventually being hired, and paid.

The fact is, a "free consultation," whether it's my free phone consultation or anyone else's free Office consultation, is an opportunity to meet a potential new Client (meaning paying customer). Certainly, no Lawyer intends a free consultation to be time spent with someone who has no intention of hiring them. I'll be honest about that here; the last thing I have time to do is use up an appointment slot to answer questions and explain stuff to someone looking just for free Legal advice. Yet any number of people will admit and say, right up front, that they have another Lawyer and just want t know if he or she is on the right track, or they have no money and can't afford a Lawyer, or give some other indication that they have no ability or intention to become a Client. How many of those do you think I can carry and still pay my bills? I wonder, would these same people call up a plastic surgeon, make an appointment for a "free consultation," and go in, only to explain that they're not interested in any of the services the surgeon provides, but rather want to know what he or she thinks is the best product they an buy over-the-counter to eliminate the lines around theie eyes, or reduce the appearance of wrinkles?

Thus, the "free consultation," at least to the Lawyer, means an opportunity to interact with someone who needs and is interested in hiring an Attorney. So what, you ask, is my beef with this tactic?

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January 16, 2012

Aggravated Indecent Exposure in MIchigan is NOT a Misdemeanor

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."

flasherGuy2.jpgI 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" »

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January 13, 2012

Drunk Driving (DUI) Charges in Michigan Resulting From a Cell Phone Tip

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.

Cell Driving2.jpgIt 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.

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January 9, 2012

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

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.

Copper car2.jpgIt 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" »

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December 16, 2011

DUI Legal Fees in Macomb, Oakland and Wayne Counties

"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.

get-money3.jpgFor 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: $2800. I begin with ½ ($1400) down, and the other ½ ($1000) must be paid prior to the conclusion of the case.

2nd Offense: $3200. I begin with ½ ($1600) down, and the other ½ ($1300) must be paid prior to the conclusion of the case.

3rd (Felony) Offense: Starting at $5000. I begin with half (½) down, and the other half (½ ) must be paid prior to the conclusion of the case.

No one wants to pay too much, or anymore than they have to, for anything. It's no different for Legal Fees. My Fees are more than what some Lawyers charge, and less than others. Yet there are still really two competing bookends to this scenario. Many people are absolute "bargain hunters," intent on finding the lowest price on anything, regardless of quality, while others cannot help thinking that the more you pay for something, the better it must be. Most often, however, the very best "deal" lies in the middle.

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.

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November 18, 2011

Probation Violations - Staying out of Jail in Macomb, Wayne and Oakland Counties

Within my Criminal Practice, I am regularly called upon to Represent former and new Clients in Probation Violation proceedings. This article will be a real-life examination of that process, and how a person can, in fact, stay out of Jail, rather than a confusing discussion filled with useless legal mumbo-jumbo. Let's start by being candid; a Probation Violation is always a bad situation. While there are a million different reasons why a person can have their Probation "violated," these charges tend to fall into one of only a few categories. In other words, a person will most often face a Probation Violation for one (or more) of 5 reasons:

  1. Missing a urine or other chemical test
  2. Testing positive for alcohol and/or drugs
  3. Missing a Probation appointment, or just stop Reporting
  4. Picking up a new case, or
  5. Not completing some condition of Probation, like community service, counseling, or paying all outstanding Fines and Costs.

Frustrated Judge2.2.jpgAnyone who gets "violated" knows, in the pit of their stomach, that the Judge is not likely to be happy with them. After all, "Probation" specifically means "not in Jail." Even if a person is given an initial Jail Sentence, they had to have been Sentenced to less than the maximum possible Jail term in order to have any Probation left to do. Thus, Probation stands in as a substitute for Jail. And when facing a Probation Violation, the first and biggest concern is staying out of Jail.

Everyone has their reasons for "violating" Probation, and we'll get to those shortly. First, however, a person has to understand that from the Judge's point of view, this all boils down to the simple notion that a break was given, and the person apparently didn't live up to their end of the bargain. This is, understandably, frustrating to the Judge.

That said, there are certain Courts, very often in Oakland County, that seem to "load up" on the Conditions of Probation. While no one ever wants to face a Violation charge, some people feel like they knew it was going to happen sooner or later, especially when they walked out of Court wondering if Jail wouldn't have been easier than having to do all the things that they feel were dumped upon them.

By contrast, plenty of other Courts, most often in Macomb County, dispense with imposing a million conditions and classes and community service and testing and Reporting and whatnot, and instead of almost setting a person up for failure, will rather sensibly and simply Order a person to just stay out of trouble, and maybe report once a month, as well.

The reader can no doubt tell which approach I favor...

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November 14, 2011

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

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.

Money can4.jpgIn 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.

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September 19, 2011

How to get a Better Sentence in a Michigan Criminal or DUI Case - Part 2

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.

Interviewing2.jpgFirst, 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" »

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September 16, 2011

How to get a Better Sentence in a Michigan Criminal or DUI Case - Part 1

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.

Spotlight copy.jpgThis 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" »

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September 12, 2011

Possession of Marijuana or Other Drugs and the Mandatory Michigan Driver's License Suspension

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.

SmokeJail.jpgHonestly, 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" »

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August 15, 2011

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

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!

Knockout.jpgObtaining 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" »

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August 12, 2011

Michigan DUI - How Long Will it Stay on my Record?

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."

eraser1x.jpgA 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.

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August 1, 2011

Indecent Exposure Charges in Michigan

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.

flasher2.gifThere 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:

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July 29, 2011

DUI and the Commercial Driver's License (CDL)

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.

Garbage3.jpgThen 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)" »

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July 22, 2011

Facing Embezzlement Charges in Michigan and Dealing With the Emotional Implications

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.

woman-silhouette1.jpgThe 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" »

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July 18, 2011

Michigan DUI - Understanding and Challenging Breathalyzer Results

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.

case-dismissed3.jpgI have pointed out that not every DUI charge can be easily "knocked out" because of some catastrophic breathalyzer problem. 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 not every single DUI case can be dismissed on some breathalyzer technicality. It angers me, however, that this tactic claims so many people who are vulnerable, and just hand over their money to someone disingenuous enough to smile, and take it.

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 not every DUI charge can be easily dismissed.

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.

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June 27, 2011

DUI - Staying out of Jail in Macomb, Oakland and Wayne Counties - Part 2

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.

jail2.jpgIn 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" »

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June 24, 2011

DUI - Staying out of Jail in Macomb, Oakland and Wayne Counties - Part 1

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.

Jail Cuffs 1.jpgThat 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" »

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June 13, 2011

Drunk Driving in Macomb, Oakland and Wayne Counties - the DUI Charge, Drinking, and Counseling

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.

alcoholism1.jpgBased 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" »

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May 27, 2011

DUI in Macomb County -vs- DUI in Oakland County

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.

DUI Arrest.jpgIn 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.

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April 29, 2011

The Role of Police Video in a Michigan DUI Case - Part 2

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.

Cop Video 2.jpgTo 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" »

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April 25, 2011

The Role of Police Video in a Michigan DUI Case - Part 1

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.

Cop Video.pngIf 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" »

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February 4, 2011

Facing an Embezzlement Charge in Macomb, Oakland or Wayne County - Part 2

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.

Money Hiding2.jpgMost 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" »

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January 31, 2011

Facing an Embezzlement Charge in Macomb, Oakland or Wayne County - Part 1

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.

Interview2.jpgOften, 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" »

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January 24, 2011

Do I Really Need a Lawyer for a DUI in Metro-Detroit? - Part 2

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.

Lawyer_handshake2.jpgThe 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" »

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January 21, 2011

Do I Really Need a Lawyer for a DUI in Metro-Detroit? - Part 1

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.

pondering3.pngFor 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" »

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January 15, 2011

St. Clair Shores DUI cases - the 40th District Court

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.

Shores.jpgBoth 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" »

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January 10, 2011

Eastpointe DUI Cases - the 38th 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.

Judge Gerds4.jpgElected 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" »

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January 7, 2011

DUI Cases in Warren and Centerline - the 37th 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.

Warren2.jpgThere 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" »

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January 4, 2011

Facing a DUI in Roseville or Fraser - the 39th 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.

Scales-of-justice2.jpgThere 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" »

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December 27, 2010

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 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.

Judge LeDuc3.jpgThe 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" »

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December 20, 2010

DUI in Sterling Heights - the 41A District Court Sterling Division

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.

SH Hall2.pngIn 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" »

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December 17, 2010

DUI in Shelby Twp., Utica, or Macomb Twp. - The 41-A District Court Shelby 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 favorites. 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.

Judge Shepherd6.jpgLocated 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" »

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December 13, 2010

New Baltimore (42-2) District Court - DUI in New Baltimore, Chesterfield, Lenox and New Haven

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.

New Baltimore 2.jpgJudge 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.

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December 10, 2010

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

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.

41B District Court.jpgOn 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" »

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November 13, 2010

Dealing with a 1st Offense DUI (OWI) Case in Macomb, Oakland or Wayne County - Part 2

In the part 1 of this article, we began our examination of what a person facing a DUI will be experiencing form the point of being released from Jail right up through the point of going to Court. We'll pick up from there, covering what happens at Sentencing and the inevitable consequence any DUI Driver will face, as well as what can be done to get the least amount of consequences possible.

Obviously, the 1st goal is to stay out of Jail. That's usually not a problem, with the only exception being, in some cases, the 48th District Court in Bloomfield Hills. Beyond that however, there can be a million things a person is ordered to do, and not do, and limiting those things is the whole goal of preparing someone for the PSI and the legally required alcohol screening test. I have noted before that almost everyone facing any criminal Charge, DUI included, will say that they'll do anything to stay out of Jail. I have no doubt each and everyone one of them means that, at the time they say it. Then, later, as the case concludes, and once their Lawyer has worked it our where they don't go to Jail, they are left to deal with the Judge's order to do this and that, and not do other things.

Macomb Sherrif2.jpgIt doesn't take long for a person placed on Probation to start NOT liking all the "do this and do that" stuff, and to resent the "don't do" these things part of the deal. It's about that time they'll utter the most famous words said in so many Criminal cases, yet never in the Courtroom itself: "This is bull$***!"

And I can understand that feeling. That's why doing so well BEFORE a person gets Sentenced by the Judge is so important. Thus, preparing for the PSI is what produces results in DUI cases that aren't dismissed on some technicality. The goal of all that time spent preparing the Client for the PSI and the alcohol assessment is to avoid as many of those "This is bull$***!" consequences as possible.

There are, however, certain consequences that occur in every 1st Offense DUI case. Almost everyone dealing with this charge, whether they ultimately Plead Guilty to OWI or the less severe Impaired Driving Charge, will attend something called a VIP, or Vicitm Impact Panel. This is put on my MADD (Mothers Against Drunk Driving). Some people will also be required to attend something like an Alcohol Awareness Class. This is far less likely in Macomb County, and most of Wayne County than it is in Oakland County.

Continue reading "Dealing with a 1st Offense DUI (OWI) Case in Macomb, Oakland or Wayne County - Part 2" »

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November 9, 2010

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

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.

Breath Tester2.jpgMost 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" »

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October 29, 2010

Driving on a Suspended License (DWLS) in Macomb, Oakland and Wayne County

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.

Trooper2.jpgThe 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" »

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September 24, 2010

Controlled Substance Delivery Charges in Macomb, Oakland, and Wayne County - Part 4

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.

Pot.jpgTechnically 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" »

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September 20, 2010

Controlled Substance Delivery Charges in Macomb, Oakland, and Wayne County - Part 3

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.

Coppers.jpgI 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" »

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September 17, 2010

Controlled Substance Delivery Charges in Macomb, Oakland, and Wayne County - Part 2

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.

dealer1.jpgDelivery 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" »

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September 13, 2010

Controlled Substance Delivery Charges in Macomb, Oakland, and Wayne County - Part 1

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.

Deal12.jpgIn 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" »

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August 23, 2010

Michigan Criminal Law - Should I just go with a Court-Appointed Lawyer? - Part 2

In part 1 of this article, we began examining the economic realities Lawyers face in taking Court Appointed cases. In this second part, we'll focus on how that economic strain translates into time spent, or not spent, resolving a Client's case, and how that affects the level of service that is ultimately provided.

Beyond time and money, there is another, even less obvious factor that comes into play when we compare having your own Lawyer to taking one who has been Court Appointed. In my Practice, having a Client come in to hire me is almost always the by product of their deciding they like what I have to offer, and my thinking I can help them. In other words, there is sort of a mutual selection that has taken place. If the Client calls my Office and feels alienated, or if I speak with them and think they're nuts, then it's not likely we'll be meeting.

Judgenumber2.jpgWhen I take a person's money, I feel a very serious responsibility to them to do whatever is necessary to produce the best outcome humanly possible. After all, they paid me.

When the Court pays someone, and the pairing of Attorney-Client has been by chance, that bond and that sense of agreement and understanding are simply not there. That's not to say that any particular Court Appointed Lawyer will neglect his or her Client's interests, it's just that, no matter how you slice it, that bond, understanding, sense of obligation, handshake, or whatever is NOT there, and never will be. Either side can always think "I didn't hire you" or "you didn't pick me."

In fact, it has been noted that there is at least a concern that because it is the Court, and not the Client who pays the Lawyer, the Attorney might be far more afraid to test the Court's patience, rather than the Clients. Think about it this way: one frustrated Client dealing with an otherwise happy Court passing on Appointments is worth more than one happy Client and a frustrated Court who might direct appointments away from a Lawyer who is seen as inefficient in wrapping cases up and moving them through. Remember who signs the check.

Then there is the matter of time spent with a Client before and during the case. The way I see it, I am paid to explain every aspect of a case to my Client. In a DUI, for example, I'll meet with my Client for 1 and ½ to 2 hours at our first Appointment. I will begin preparing the Client to take the legally required Alcohol Evaluation. My Client leaves not only with my phone number, but my "personal-business" e-mail so they can get in touch with me as other questions or concerns come up.

Continue reading "Michigan Criminal Law - Should I just go with a Court-Appointed Lawyer? - Part 2" »

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August 20, 2010

Michigan Criminal Law - Should I just go with a Court-Appointed Lawyer? - Part 1

One question that comes up from time to time within my Criminal Practice is "should I just go with a Court-Appointed Lawyer?" This is almost always preceded by an explanation that the questioner either has no money, or not a lot of it. This article will focus on that question, and will be broken into 2 parts.

Let's narrow that focus, however, to the types of Criminal cases that I handle. Thus, we are not talking about what are called "Capital cases," meaning those that carry a term of up to life imprisonment, and usually involve such crimes as Murder, Rape, Armed Robbery, and the like.

Checklist2.jpgInstead, we'll focus on the rather garden-variety Misdemeanor case, or a light-to-medium severity Felony case. Typically, this will involve charges ranging from DUI, Suspended License and other Driving charges to things like Possession of Marijuana, Cocaine, Analogues, or other Drugs, up to Felony DUI matters. The idea here is that we are NOT talking about Murder, Rape or Armed Robbery type charges.

Let me begin by pointing out that when facing a Criminal charge, having a Lawyer is better than not having a Lawyer. The same thing goes for dealing with an injury. Better to have a Doctor than not.

At this point the reader is probably figuring that I'm going to begin an analysis of how and why Court-Appointed Lawyers are so inferior to those Practicing Privately. That's not the case. Instead, I'm going to examine the realities of the paycheck, and how that affects the level of service someone can expect.

Before we begin our analysis, I should point out that, contrary to popular opinion, a person represented by a Court-Appointed Lawyer must repay the Court. They are NOT free.

There is always some rumbling every year within the Legal Community about the need to increase the payment for Court Appointed Lawyers. The truth is, the Fee schedules that most Court-Appointed Attorneys work under was always below market in terms of compensation, and it has either remained relatively unchanged in the last umpteen years, or, in some cases, has actually gone down. It is generally recognized that within the economic realities of today's world, these Fees are bottom of the barrel. Compared to the Fees of a Private Lawyer (see my Fee Schedule), it seems like welfare.

This generally accounts for the notion that Court Appointed Lawyers are very often young, inexperienced "newbies" learning to "cut their teeth" in the real world. While that's not completely true, at least within the parameters of the kinds of cases I handle, any veteran Lawyer making his or her living on the Court-Appointed rolls, is generally not perceived (whether correctly or not) as having the "stuff" to be successful.

Continue reading "Michigan Criminal Law - Should I just go with a Court-Appointed Lawyer? - Part 1" »

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August 16, 2010

Detroit-Area Criminal, DUI and Driver's License Cases - "Winning" is Everything

Many Lawyers have a challenging job. Except for those Lawyers who represent celebrities and athletes as an Agent, or who practice Patent and Trademark law, or other, more "academic" pursuits, Lawyers, like me, who go to Court for people generally get involved in their Client's lives at a time of crisis, or stress. I've often said that my Practice and being a Funeral Director has something in common: Nobody comes in "on a roll."

I limit my Practice to 4 things: Criminal, DUI, Driver's License Restoration and Bankruptcy cases. When you think about it, pretty much anyone coming to see me is coming to have something made better. Of course, I need to make a living, and earning a salary is a part of anyone's job satisfaction, but all the money in the world won't improve the quality of your life if you hate what you do. To me, job satisfaction comes from knowing that I have actually helped better my Client's situation.

better1.jpgIn that regard, I could never stand being involved in a Divorce case. I've never so much as handled one, and to me, it seems that too many people walk away from that situation even more unhappy than when they started. In my Criminal Practice, for example, I at least know that no matter bad my Client's predicament appears when we first met, I am almost always able to produce a material and substantial benefit in terms of the final outcome. And that's the term I use as a yardstick to measure success: Was I able to produce a material and substantial benefit for my Client?

This means more than just talking about my personal job satisfaction. In using the term "material and substantial benefit" as the measuring stick by which I judge my own success in any given case, it also becomes the criteria by which I decide if I will take a case. Inherent in that consideration is a question of honesty. I bristle at the jokes about Lawyers being like used-car salesman. Even so, I remember once, as a much younger Lawyer, calling an older Lawyer friend of mine to whom I wanted to refer a case far too complicated for me at the time. When I mentioned that he came to mind right away because he was an honest man of integrity, he joked "that has cost me a lot of money in my career." Funny as that sentiment is, it really is no joke.

To be honest, and to only be willing to take someone's money when you feel you can really produce a beneficial, tangible result means losing money. Let me cite an example from a call I received this week:

Continue reading "Detroit-Area Criminal, DUI and Driver's License Cases - "Winning" is Everything" »

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July 30, 2010

Criminal Cases in Macomb, Oakland and Wayne Counties - How Each County is Different

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.

Tri.gifThis 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" »

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July 2, 2010

Michigan DUI - What Really Happens in Macomb, Oakland and Wayne County - Part 2

In Part 1 of this article, we examined the range of realistic outcomes in a DUI case, particularly a 1st Offense case. In this second part of the article, we'll focus on how and why those outcomes happen, and what can be done to help insure that the most lenient, as opposed to a more severe outcome, is produced.

By Law, prior to the Judge imposing Sentence on a person with a DUI conviction (meaning they've pled to some alcohol-related charge, or were found guilty of one), the person must undergo a mandatory Alcohol Evaluation. This means they take a written test. This test is scored. The score a person gets determines, in essence, what will happen to them. The higher the score, the worse things are, whereas the lower the score, the less likely the person is to have, or to develop, an alcohol problem.

Judge2.jpgBeyond the test, every Court in the Tri-County area requires that the person also be interviewed by its Probation Department. The whole of this interviewing and testing process is often called a "PSI," or Pre-Sentence Investigation.

The Probation Department then makes a written report to the Judge, to be reviewed for Sentencing, advising what they think, based upon their interview and the person's test score, needs to be or should be done to them. In other words, the Probation Department recommends what the Sentence should be.

As I have noted in numerous places in both my Blog, and on my Website, these "recommendations" are more accurately called "blueprints" for what will happen, because in pretty much every Court, and in every case, what the Judge orders is usually either exactly in line with the recommendation, or darn close to it.

Think of it this way: If the Probation Department said Jane Doe had the potential to develop an alcohol problem, and was currently at the stage where it appeared she is abusing alcohol, and therefore should complete some classes, what do you think the chances are that some Lawyer can come along and convince the Judge that that's baloney, and no classes should be ordered? Do I hear a "zero" anywhere?

Thus, at the point where the Probation Department has made its recommendation, the Lawyer's influence in the way the rest of the case will play out has been reduced to minimal, at best.

So beyond negotiating a Plea Bargain, or getting a Sentence agreement to "no Jail" in a 2nd Offense case, what more can the Lawyer to do? Lots. Let's look at specifics:

Continue reading "Michigan DUI - What Really Happens in Macomb, Oakland and Wayne County - Part 2" »

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June 28, 2010

Michigan DUI - What Really Happens in Macomb, Oakland and Wayne County - Part 1

A substantial part of my Practice involves handling DUI cases. In that regard, I have noticed that much of what's said or written about Drunk Driving involves the legal particulars of the Stop, the Arrest, and the Evidence. Beyond that, the next most common topic seems to be staying out of Jail.

I think those two subjects appeal to most people's hopes and fears, more than anything else. What I mean is that suggesting to someone that there is a chance of having the whole case thrown out because of some technicality with the evidence appeals to their hopes. Telling someone they can be kept our of Jail appeals to their fears.

Judge1.jpgThe point of this article is to explain that, at least in the Detroit-area, the vast majority of DUI cases result in neither outcome, and that perhaps a better, more realistic examination would focus on what's likely to happen in most cases. Rather than look at the rather unlikely outcomes that could happen when a person gets an OWI, we'll look at what really happens to the overwhelming majority of those facing such a charge.

Let's sharpen the focus even more: We're are pretty much saying that those who shout "get the case dismissed because of the Traffic Stop...!" and things like "the Breathalyzer machine isn't believable...we can beat this case...!" have an approach that seeks to capitalize on what may or may not exist in a small percentage of cases. Meanwhile, those who shout "I can keep you out of Jail...!" are promising a result that is already the likely outcome of a DUI (at least a 1st Offense, in pretty much every Court in the Detroit-area), even without their help.

What is it that a DUI Lawyer can really do, in most cases, to benefit his or her Client?

The answer, it turns out, is pretty simple: Make things better.

Let's talk about specifics: When a person gets a DUI, all sorts of things go through their mind. Obviously, we've covered 2 of the biggest: "Beating" the case, and staying out of Jail. Beyond that, however, are plenty of other, real life concerns: Will I lose my Driver's License? Will I be sent to Rehab? Will this cost me my job?

It's managing (meaning minimizing) those consequences, except in the unusual case that may be dismissed because of some fatal weakness, that is the honest business of a real-life DUI Lawyer.

Continue reading "Michigan DUI - What Really Happens in Macomb, Oakland and Wayne County - Part 1" »

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June 25, 2010

When a Parent Needs a Lawyer for Their Child's Adult Criminal Case in Michigan

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.

AngryParents2.jpgIn 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" »

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June 18, 2010

Finding the Right Lawyer for a Criminal Case in Macomb, Wayne or Oakland County

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.

Lawyers2.jpgThere 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" »

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June 7, 2010

Michigan - Driving While License Suspended (DWLS) - Things Happen in 3's

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.

fork2.jpgMore 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" »

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June 4, 2010

Possession of Marijuana in the Detroit Area - The Typical Case

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.

Weed.jpgWe 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" »

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May 28, 2010

The Best Legal Strategy in a Michigan Criminal 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.

Strategy.jpg
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" »

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May 10, 2010

How a Michigan Criminal Record will Ruin Your Career...or Not!

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?"

light-at-end3.jpgYou 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!" »

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May 7, 2010

Drunk Driving and Traffic Tickets in Michigan - The Money-Making Speed System

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?"

money.jpgI 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" »

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May 3, 2010

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

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."

medical_marijuana_prescription.jpgThe 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?" »

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April 19, 2010

Indecent Exposure in Michigan - "Uncovering" the Truth

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.

Flasher.jpgWhen 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.

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April 12, 2010

Criminal Cases in Macomb, Oakland and Wayne Counties - What Exactly Does That Mean?

This article will be a very short overview of where I handle Criminal Cases. It represents another departure from my typical informational article discussing some area or other of Criminal Law. I am posting this one because, quite often, I am asked a question about a case pending in a Court beyond where I handle Criminal Cases, and I want to clarify exactly where that is.

In many of my Blog articles, and on my Website, I often use the terms "Detroit area," Metro-Detroit area," "Metropolitan Detroit Area" and "Tri-County area," and I frequently describe my Practice as being limited to "Macomb, Oakland and Wayne Counties."

Detroit.jpgLet me be very clear about where I go, and where I do not.

I have been, and regularly go to, every Court in Macomb County. My office is in Mt. Clemens. Thus, I'll handle Criminal, Drunk Driving (DUI) and Traffic Cases in all Macomb County Courts.

I will, likewise, handle Criminal, DUI and Traffic Cases in all Oakland County Courts.

I go to some, but not all Courts in Wayne County. Here's a list of Courts where I do Practice:

16th (Livonia)
18th (Westland)
19th (Dearborn)
20th (Dearborn Heights)
27th (Wyandotte)
31st (Hamtramck)
32A (Harper Woods)
34th (Romulus)
35th (Plymouth, Canton and Northville)
36th (Detroit), and
All Grosse Pointe Municipal Courts.

This includes, of course, Felonies heard in the Wayne County Circuit Court.

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

I have, in the past, pointed out that I am not a fan of those "All Cases, All Courts" Law operations. I frequently observe that, in most cases, a person should hire a Lawyer who is "local" to the Court in which their case is pending.

Neither am I a believer in looking for good Legal Representation on a low-bidder basis. To me, trying to be everything to everybody, or using a cut-rate business model are not signs of quality, or at least not the kind that I'd buy into.

That said, just getting soaked for excessive legal expenses is not a sign of quality, either. I post my Fees right on my website. And why not? What's the big secret? I have no interest in "competing" with anyone else on fees. I'm more than some, less than others, and usually somewhere near the middle of the pack.

Continue reading "Criminal Cases in Macomb, Oakland and Wayne Counties - What Exactly Does That Mean?" »

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April 2, 2010

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

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.

Suit2.jpgI 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."

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March 29, 2010

Embezzlement Crimes in Michigan - Macomb, Oakland and Wayne County Cases

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.

man3.jpgAnd 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?

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March 1, 2010

Fees and Payment Plans for Michigan Criminal, DUI and License Restoration Cases

Let me begin this "article" by pointing out that it is a departure from my usual information-style discussion of some aspect or other of the kinds of Criminal, Drunk Driving and License Restoration cases that I handle. I have found that, after reading some of my articles, some people will call my office and ask "How much do you charge?" or "Do you have a payment plan?"

On this Blog, there is a "button" entitled "Fees" which takes the reader directly to my Fee schedule. Ditto for mywebsite. For whatever reason, that button seems to get missed a lot. This "article" will discuss money; how much I charge for certain legal services and how payment is made.

cash-register.jpgFor Driver's License Restorations, I charge $3000. The usual payment plan begins with 1/3 ($1000) down at the first face-to-face meeting, another $1000 paid as the case is prepared, and the final $1000 paid about a week before the actual Hearing.

Most Misdemeanor cases are paid with an initial Retainer or ½ down, with the second ½ due prior to the Court date. Therefore, a typical Macomb, Oakland or Wayne County District Court case with a fee of $1600 would require a $800 payment at the first face-to-face meeting, and the other $800 paid just before the actual Court date.

In Misdemeanor cases which require more than 1 Court appearance (DUI cases always require 2 Court dates), the Retainer is still ½, with the second ½ due prior to the SECOND Court date.

For Felony cases, I usually require ½ down as a Retainer, and break the remaining ½ into 2 separate payments. Thus, if the Fee is $4000, I usually require ½ ($2000) as a Retainer at the first face-to-face meeting. The next payment is $1000, which is paid when (and if) the case goes to the Circuit Court. The final payment of $1000 is due just prior to the last Court date, which is usually the Sentencing.

Sometimes, by special arrangement, I will break the payments into 3 equal installments. Often, I will work out a deal where no further fees will be charged beyond the initial first ½ if the case is finished up in the District Court, rather than being bound over (or "sent up") to the County's Circuit Court.

Traffic Tickets
are always handled on a ½ down, the other ½ due before Court basis.

There are no payment plans based on monthly or weekly installments, and the 1/3 to ½ down required as an initial Retainer is pretty much set in stone. Throughout my Blogs it has been my goal to be honest and direct. To that end, when someone calls about a Misdemeanor or Felony case and offers to put down a few hundred dollars, with promises of future payments, I must decline. Those arrangements have never worked out satisfactorily. A retired Judge once said, when imposing fines and costs and allowing no time to pay them, that although he believed most people had good and honorable intentions to pay, it was better that they got credit from someone who knew them better than he did, and that's how it works in my Office.

My office accepts Cash, Check, Money Orders, and Visa, MasterCard and Discover.

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February 22, 2010

Traffic Tickets in Michigan - The First Thing You Should Do With a Citation

Part of my Practice includes working out Traffic Tickets. In other Blog articles I have explained how I handle Tickets, and on my Website I also discuss the general philosophy I have regarding Tickets, and the Fees I charge to handle them (about $450 to $600 for Civil Infractions, and between $1200 to $2200 for those that are Misdemeanors, or Criminal Traffic Matters that carry a potential Jail Sentence).

I also point out that my Traffic Ticket Practice is limited to Macomb, Oakland and Wayne Counties. Given what I charge, there is no way it's worth my time to go farther, and it's also true that I don't think it's worth anyone spending much more than what I charge when they can find a local Lawyer in a distant County who can probably do the same thing that I can, and for what I charge locally.

police_ticket.jpgWhen a person gets a Ticket, the first thing they should do is decide whether or not they're going to simply "eat it" or if they want to avoid, or at least lessen the points and other consequences of it. Given that I call not doing something about a Ticket "eating it," you can probably already tell that I think just paying it is a dumb idea. It's not just my professional experience that results in that conclusion.

As a Law Student, over 20-some years ago, I remember getting a Ticket and telling one of my classmates about it. At the time, I was just going to pay the Ticket and be done with it. My classmate told me that I would be crazy to just pay the Ticket. He had an older brother who was a Lawyer, and told me I should hire him and have him take care of it for me. At the time, I think I had a few points on my Record, so my big concern was that my insurance would go up.

I decided that I was willing to see what my friend's brother could do. I plunked down his fee (reduced because I was his brother's friend, and as a quasi-professional courtesy). My buddy's brother went to Court with me, and wound up getting the Ticket worked out where no points would go on my Record. I paid a fine, and that was it. I had saved not only the points on my Record, but the inevitable increase in insurance rates that would have followed.

Sometimes, when people call me, they either cannot come see me within the time remaining before they have to either pay the ticket of set up a Court Date, or they may not have the money until that time has passed. So what should a person do?

Without fail, and in every Ticket Case, a person who if facing a Citation would be well-served to call the Court and at least have the matter set for an "Informal Hearing." This will stop the clock from running, as the Court will inform the Person that they'll be mailed a Court date some time in the future. In the meantime, they can make arrangements to hire a Lawyer.

For those who have the money and ability to jump right on it, then there's no need to call the Court. Just hiring the Lawyer will allow the Lawyer to file Papers with the Court which will likewise "stop the clock" and cause the matter to be set for a future Court Date. For those, however, who might need a little time, calling the Court and requesting and "Informal Hearing" will result in additional time to hire the Lawyer.

When a Lawyer is hired, even if it's the very day before the "Informal Hearing," the Papers he or she files with the Court then causes the Citation to be re-scheduled for what's called a "Formal Hearing," which is where the Lawyer meets with the Prosecutor at a "Pre-Trial," just like that in a Misdemeanor Case.

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February 15, 2010

Criminal Charges in Michigan - I Have a Warrant for not Showing Up

This article is a companion to a previous article about having an outstanding Probation Violation Warrant for not Reporting. In this article, we'll look at those cases where someone has, for lack of a more proper term, essentially "skipped out" or "bailed" on a Criminal case at some point in the process (even if it's because they never took the first step). This situation comes up often enough in my Criminal Practice to require some discussion. We'll be talking about those individuals who either did not show up to turn themselves in on a Warrant (either to a Police Station or to a Court) and were never formally Arraigned, or those individuals who have been Arraigned, and at some point in the Criminal Process, just failed to come back. Since I limit my Practice to Macomb, Oakland and Wayne Counties, we'll be talking about how things are handled within the Tri-County area.

Chains2.jpgIn some cases, a person will receive a Notice (and this can take the form of a written Court Notice or a call from a Police Detective) that there is a Warrant for their arrest, and they need to turn themselves in. These "turn-in" instructions can require that the person either report directly to a Court, or to a Police Department. For whatever reason or reasons (usually because they're scared) the person will simply just fail to follow-up as directed.

In cases where a person has already gone through that first step of "booking" and/or Arraignment, a subsequent Court date is set, and the person is either personally informed of that upcoming date, or Notice is sent by mail.

In still other cases, a person may have shown up to a subsequent Court date. Perhaps they went to Court for their Pre-Trial, and they might even have worked out a Plea deal. At some point along the line however (often prior to their Sentencing date) the person just drops out of the picture.

Just as with Probation Violation Warrants, the outstanding Warrants in these cases are taken care of in 1 of 2 ways:

1. A person voluntarily turns him or herself in to clear things up, or

2. They get picked up by the Police.


I think it goes without saying that those in the first group will find themselves treated far more leniently than those in the second group.

Continue reading "Criminal Charges in Michigan - I Have a Warrant for not Showing Up" »

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January 29, 2010

Driving While License Suspended or Revoked - a Return to Forever

In the previous article on this Blog, we examined the difference between Misdemeanor and Civil Infraction Traffic Offenses, and learned that Misdemeanor Traffic Offenses can NEVER be removed from a person's Criminal Record. In this article, we'll look at the consequences of that permanence, and see how it applies in the real world.

As a practicing Criminal Defense Lawyer, I spend a lot of time in the Metro-Detroit area Courts. A recent experience in a city outside the Suburban-Metro area (hereafter referred to as the "other place") serves as the inspiration for this installment. To be fair, I cannot say where this case was handled, other than to point out that it was not in Macomb, Oakland, or Wayne County. In fact, an experience like this tends to reinforce my general policy to limit my Practice to the Tri-County area, with certain, limited exceptions. And I got into this case as one of those exceptions.

arrest.jpgMy Client was charged with Driving While License Suspended, Revoked or Denied (DWLS/DWLR), 2nd Offense. His last DWLS/DWLR conviction occurred more than 10 years before this most recent charge. He has 4 total prior DWLS/DWLR convictions. His License was Revoked due to several DUI convictions, the last also occurring nearly 10 years before this arrest. To be clear, his last DUI did, in fact, occur after his last DWLS/DWLR case.

Somehow or other, my Client was able to get a License from another State right after his last DUI conviction (definitely an error on that State's part), and returned to Michigan for a visit a little over 5 years ago, when he held the then-valid, out of State License. He got pulled over in a local city, and because his Michigan License was revoked, was still cited for DWLS/DWLR. He returned to the other State without taking care of this Michigan matter, and all but forgot about it.

Until he got arrested for DWLS/DWLR in the "other place." When his LEIN record was run, it came up that he had an outstanding Bench Warrant for his failure to show up to Court for the local DWLS/DWLR case. The end result to all this was that he had to post a Bond for the Old, local case, as well as the new, "other place" case.

Continue reading "Driving While License Suspended or Revoked - a Return to Forever" »

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January 27, 2010

Misdemeanor Driving Offenses - On Your Record Forever

We've all heard the term "Traffic Offense." Usually, it's used to denote a legal problem of relatively minor significance. Sometimes the term "Traffic Offense" is improperly used as a synonym for "Traffic Ticket." While all Traffic Tickets, are, by their very nature, Traffic Offenses, not all Traffic Offenses are merely simple Traffic Tickets.

Traffic Offenses can be divided into 2 categories: Civil Infractions and Misdemeanors. Civil Infractions are Offenses which DO NOT carry any possible Jail term. Most, but not all, Civil Infractions carry Points, which are applied to a Driver's Record, plus fines. Think Speeding Ticket.

permanent-record-tattoo-victoria-bc.jpgTraffic Misdemeanors, on the other hand, DO carry a potential Jail Sentence. In addition, many, although not all, Misdemeanor Traffic Offenses carry Points, as well as fines and Court costs. Think DUI and Suspended License charges.

In my Criminal Practice, the general lack of clarity regarding a "Traffic Offense" comes up in many different ways. Let's look at a few examples.

When someone hires me because they've been charged with a crime, and I ask if they have any prior Criminal Convictions, I often get a response like "no, just some Traffic stuff." But as we've seen, some Traffic Offenses are Civil Infractions, and others are Misdemeanors. All Traffic Misdemeanors are, first and foremost, Misdemeanors, meaning they are Criminal Offenses. A person convicted of a DUI, or Driving While License Suspended charge does, in fact, have a "prior," or "priors." A person with 100 Speeding Tickets, but no prior Misdemeanor of Felony convictions, (Traffic or otherwise), despite being a lousy driver, does not have any "priors."

Here's where it gets tricky: Traffic Misdemeanors can NEVER be removed from a person's Criminal Record. While even a Delivery of Heroin Felony conviction can be set aside, by law, no Traffic Misdemeanor can ever "come off" a person's Record. Traffic Misdemeanor are worse than bad tattoos; at least a tattoo can be removed, even though the process is painful.

Continue reading "Misdemeanor Driving Offenses - On Your Record Forever" »

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January 25, 2010

How a Michigan Felony Case Works

This article is the companion piece to the last Blog installment about Misdemeanor Cases - From Start to Finish. To begin with, its scope is limited by my experience in the types of Felony cases that I handle (what I call "light-to-medium severity"), as well as the fact that I limit my practice to Macomb, Oakland and Wayne Counties (with the occasional exception of a trip to Lapeer, Livingston or St. Clair Counties). In other words, this article will describe the typical chain of events in a Metro-Detroit area Felony charge for crimes less severe than murder, armed-robbery, and the like.

Just as with Misdemeanors, most, but certainly not all Felony Cases begin with an Arrest. An example of a Felony that often begins without an arrest is the charge of Embezzlement. Usually, these crimes occur in an employer-employee relationship, or something similar, and the Victim goes to the Police. Often during the investigative phase, the Police will call the person suspected of Embezzling, and want to speak with them. Whatever does or doesn't happen, once the case gets to the point of Charging the Defendant (which means obtaining a Warrant, signed by the Prosecutor), the Police will often again contact the person named in the Warrant and try to make arrangements for them to voluntarily turn themselves in.

gears_Elsie_esq2.jpgWhether by Arrest or voluntary turn-in, the person to be charged is "booked" (mug shots and fingerprints) at the Police Station and then brought before a Judge or Magistrate in the District Court of the Municipality where the Offense is alleged to have occurred, to be Arraigned. The Arraignment is the first step in a case, and serves several purposes. It allows the person being charged to be told exactly what they are being charged with, what the maximum possible penalty is that can be imposed (as well as any mandatory minimum penalty) and to be informed of the Constitutional Rights. In addition, there is the setting of Bond, and the imposition of any Bond Condition (like a GPS tether, or a provision requiring the Defendant to have "no contact" with the alleged Victim).

By Law, within 14 days from the date of Arraignment, the next step, called a Preliminary Examination, must be held. This is unique to Felony Cases; there is no Preliminary Exam in Misdemeanor Cases. The Preliminary exam phase requires that the Prosecutor be able to come forward on that date and present enough evidence to the District Court Judge to prove 2 things:

  1. That there is "Probable Cause" to believe a Crime has been committed, and
  2. That there is "Probable Cause" to believe the Defendant (the person charged) committed it.

In practical terms, the Courts have interpreted this as meaning that the Prosecutor must be able to show the Judge that there is "Probable Cause" to believe a Crime has been committed, and that there is an honest, debatable "question of fact" that the Defendant committed it. This means that unless the Judge is satisfied that the case is so weak that Justice demands it's dismissal, the matter will be "Bound Over," or transferred to the County's Circuit Court.

Continue reading "How a Michigan Felony Case Works" »

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January 22, 2010

Misdemeanor Cases in Michigan from Start to Finish - Putting the Pieces Together

On both my website and in this Blog we have discussed the difference between Misdemeanor and Felony Cases, and examined various aspects of each in detail. This article will be more of an "overview" post, providing a look at how the various parts of a Misdemeanor case fit together. The next article will, in turn, examine How a Michigan Felony Case Works.

In my nearly 20 years as a Criminal Defense Lawyer, I have handled pretty much every kind of Misdemeanor there is, and even some I didn't know existed. What follows is an explanation of the procedure that is common to all Misdemeanor Cases, at least in Macomb, Oakland and Wayne Counties, where I practice.

jigsaw_puzzle3.jpgMost, but not all Misdemeanor Cases begin with an Arrest. Depending on the usual procedure of any given Court, and/or the type of Charge, a person can be taken to the Police Station, processed, and released without having posted any Bond, or after having posted a small, nominal Bond. In other cases, particularly DUI matters, the person may be held until they are sober enough to be released. Still other Courts require anyone arrested to be brought before a Judge or Magistrate (sometimes this is done by video from the Jail or Police Station) to be formally Arraigned on whatever charge or charges they face, and have the Bond, and it's attendant Conditions, set.

Sometimes, a person will not be arrested, but given a Citation (Ticket). The Citation will advise them as to when they should contact the Court. In other cases, a person will not even be given a Citation, but will be told that they'll receive something in the mail. This means that they will either be notified to appear directly, in Court, or to go to the Police Station to be "booked."

Whether by Arrest, or Court Notice or notification to first appear at the Police Station, there is usually no doubt when a person has been formally charged with a Misdemeanor.

A Pre-Trial is the first Substantive (i.e. important) proceeding in a Misdemeanor Case. Sometimes, certain Courts will combine the Arraignment and Pre-Trial proceedings on the same date.

Either way, the Pre-Trial is an opportunity for the Defense Lawyer to meet with the Prosecutor and discuss whether there might be a way to work the case out without having to go through a full-blown Jury Trial. The goal, or course, is for each side to compromise a little and hopefully come to an agreement that is fair to both sides, which usually means some kind of Plea Bargain.

Continue reading "Misdemeanor Cases in Michigan from Start to Finish - Putting the Pieces Together" »

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January 13, 2010

Michigan Traffic Offenses - Leaving the Scene of an Accident (Personal Injury)

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.

car-accident.jpgAgain 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)" »

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January 11, 2010

Michigan Traffic Offenses - Leaving the Scene of an Accident (Property Damage)

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.

Wreck.jpgThe 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)" »

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January 6, 2010

DUI 2nd Offense in Michigan - Am I Going to Jail?

This installment will return to the subject of 2nd Offense Drunk Driving, or Operating While Intoxicated (OWI) charges. As a DUI Lawyer, my actual Practice is limited to handling cases in the District and Circuit Courts of Macomb, Oakland and Wayne Counties. I point that out because what I write here is the product of my experience in these Courts. I have no idea how things are handled elsewhere, and the outcome of any case pending beyond the Tri-County area might be very different from what I describe here.

I think it's fair to say that everyone knows that there are essentially 3 kinds of DUI cases: 1st, 2nd, or 3rd Offenses. And everyone pretty much likewise knows that a 1st Offense is generally not that bad, and a 3rd Offense is a Felony, and a nightmare to boot.

jail_cell.jpgWhat about 2nd Offenses?

The first thing to say about a 2nd Offense is that (if the case is not one of those few that are "beatable"), then how bad things will turn out for the Driver depends more than anything else, on where (what City) the case is pending. Certain Courts are just plain tougher on any DUI than others. In fact, a few Courts are WAY tougher on DUI's than all the others. In the interests of good Lawyer diplomacy, I'll say no more on that subject here.

Another very important thing about 2nd Offense cases, completely independent of where they're pending, is that they represent the crossroads between having a serious alcohol problem, or not. Statistically speaking, anyone facing a 2nd Offense DUI has a much-elevated likelihood of having an alcohol-problem compared with the general population. In fact, a 2nd Offense automatically causes a person to be categorized as a "Habitual Offender" under Michigan Law. Amongst the many implications of that categorization is the Mandatory Revocation of the Driver's License for at least 1 full year.

For anyone facing a 2nd Offense, beyond the relative leniency or toughness of the particular Court where their case is pending, the issue becomes whether or not this charge is the symptom of a much deeper alcohol problem, or is rather a case of repeat poor judgment. Try to imagine the Judge's perspective: Every single 3rd Offense Felony Drunk Driver was, before that, a 2nd Offense Drunk Driver who probably said something like "it won't happen again."

Continue reading "DUI 2nd Offense in Michigan - Am I Going to Jail?" »

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December 28, 2009

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

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

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

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

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

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

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

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

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

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December 18, 2009

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

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

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

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

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

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

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

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December 11, 2009

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

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

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

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

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

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

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

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

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December 9, 2009

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

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

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

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

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

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

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

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

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December 4, 2009

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

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

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

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

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

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

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

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

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

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

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December 2, 2009

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

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

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

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

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

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

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

Up to 93 days in jail.

Up to 360 hours of community service.

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

Possible vehicle immobilization.

Six points on driving record.

$500 Driver Responsibility fee for two consecutive years.


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

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November 23, 2009

Michigan - What to do (and not to do) if the Police or a Detective calls you

It's time to take another break from my long, on-going series of articles about Driver's License Restoration in Michigan. In this article, we'll discuss an issue that arises often enough in my Practice as a Criminal Defense Lawyer. It always begins with a phone call from a person who has been contacted by a Detective from a Police Department or Agency. The caller has either spoken with the Detective, or simply knows, from a message of some sort, that a Detective has called for them. The Detective will almost always reference what he or she is calling about.

In this article, we'll talk about those calls which are about some incident involving the person who is being called. Sometimes it's about an Assault and Battery case, or an allegation of Domestic Violence. Other times, it's about some kind of Larceny or allegation of Embezzlement or other Theft Crime. Even if the call involves a different kind of Offense, there are certain similar characteristics of these calls that can help us understand how to respond to them.

interrogation-room1.jpgWhen my office gets one of these calls, there is usually a sense of urgency, if not outright panic, on the part of the caller. Having handled so many of these calls over the years, I think it's safe to say, at least from my experience, that there really is a set of rules a person must follow if they are called by a Detective.

Let's look at a real life example of a case I recently handled in Macomb County. My Client was involved in a disagreement with the driver of a car who was parked in front of his house and blocking his driveway. To make a long story short, there was a bit of an altercation between my client and the Driver of the car who refused to move and unblock my Client's driveway, which prevented my client from pulling his car out.

When all was said and done, and my Client was on his way to wherever, and the other Driver had finally gone his own way, my Client figured the whole thing was over. A few days later, he received a call from a Detective. He spoke with the Detective for a bit before he called me. As he related the initial conversation with the Detective, he was asked about the altercation and the Detective told him that he wanted to hear my Client's side of the story. Fortunately, my Client immediately understood the need to obtain legal advice before he said anything, so he called me. Before ending his conversation with the Detective, however, the Detective said something to my Client which I will point out to the reader as very important: The Detective told my Client that if he didn't receive a return phone call within a few days, he was "going to get a warrant" charging my Client with Assault and Battery. Mark that, because we'll come back to it.

Continue reading "Michigan - What to do (and not to do) if the Police or a Detective calls you" »

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October 30, 2009

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

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

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

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

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

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

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

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

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October 28, 2009

Marijuana Crimes in Michigan - The Short Version

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

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

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

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

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

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

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

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

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October 26, 2009

Possession and Delivery of Marijuana in Michigan - Part 2

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

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

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

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

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

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

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October 23, 2009

Possession and Delivery of Marijuana in Michigan - Part 1

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

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

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

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

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

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

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October 21, 2009

Michigan Misdemeanor Pre-Trials - The Short Version

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

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

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

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

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

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

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

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

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

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October 9, 2009

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

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

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

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

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

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

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

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

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October 5, 2009

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

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

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

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

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

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

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October 2, 2009

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

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

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

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

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

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

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September 29, 2009

Arraignment in Michigan Criminal Cases - Part 2 - Bond and Conditions

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.

Judge1.pngLet'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.

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September 28, 2009

Arraignment in Michigan Criminal Cases - Part 1 - What Happens

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.

large_sobrietycourt1_102008.jpgThe 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.

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September 25, 2009

Michigan Criminal Cases and Bond - The Basics of Getting out of Jail

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).

What-Exactly-is-a-Bail-Bond-2.jpgWhile 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.

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September 23, 2009

Michigan Arrest Warrants - What is a Bench Warrant?

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.

MI Judge.pngA 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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September 21, 2009

Criminal Cases in Michigan - Do I need a Lawyer?

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.

68918_law_education_series_3.jpgFirst, 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?

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September 9, 2009

Michigan Criminal Offenses - Having a Conviction "come off" your Record

As a Criminal Defense Attorney in Michigan, I am often asked about keeping Criminal Charges off of a person's record, or having such charges "come off" their record after a period of time. This post will discuss those cases where charges can "come off" a person's record.

In two other Blog posts, we've reviewed how Drug Possession charges can be kept off of a person's record using something known as a 7411, and how almost any crime which occurs between a person's 17th and 21st birthday (including Drug Possession charges) can likewise be kept off their record using what's known as HYTA. Under each of these two mechanisms, no Public Record is made of the matter, and if the person completes whatever probationary terms the Court requires, the whole case essentially "goes away."

428206_eraser-1.jpgObviously, there are plenty of cases where a person would not be eligible for either of those opportunities (for example, the person is over 21 and the crime with which they are charged isn't Drug Possession). There is still a way to keep a person from ultimately showing a conviction in many of those cases, and it applies equally to Felonies and Misdemeanors.

Under a law known as 771.1 (formally, MCL 771.1), a person who pleads to or is found guilty of any offense which is not otherwise disqualified from such treatment, such as Murder, Treason, Criminal Sexual Conduct in the 1st or 3rd degree, or Major Controlled Substance Violations, may have that conviction automatically "come off" their record after successfully completing 1 year of Probation.

The common way of discussing this arrangement is that the charge "comes off" a person's record. And that's exactly what happens. Of course, this means that the conviction first "goes on" their record. The legal term that describes this is "Delayed Sentencing." Technically speaking, the Court puts a person on Probation for a year, and delays the imposition of any further punishment. If the person completes this year of Probation (it can be either non-reporting, or the person may be required to report) without any violations, then the court, instead of actually sentencing the person, dismisses the whole case. That means that no record of the Conviction remains.

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September 7, 2009

Michigan Criminal Charges - Avoiding a Conviction with HYTA

One of the first questions that I ask any caller, as a Criminal Attorney practicing in Macomb, Oakland and Wayne Counties, is "how old are you?" I ask this because there is a provision of Michigan Law, Called the Holmes Youthful Trainee Act, or HYTA, which allows a person who commits a crime after their 17th, but before their 21st birthday, to keep the whole thing off their record.

confidential1.gifIn an earlier Blog post, we examined how Drug Possession charges can be kept off anyone's record, regardless of age, if they have no prior Drug Record, under something known as a "7411." The HYTA law can produce the same result, but two features make it very different from 7411:

1. HYTA only applies to people charged with a crime which occurred after their 17th birthday, but before their 21st birthday. That age range is inflexible; if someone is charged with a crime that occurred one day before their 17th birthday, or on the very day of their 21st birthday, they are ineligible. Section 7411 does not have any age limitations.

2. HYTA applies to all kinds of Crimes, not just Drug Possession charges, like section 7411. There are certain exceptions: Crimes punishable by imprisonment for life (Capitol Offenses), Major Drug Crimes and all Traffic Offenses.

The reasoning behind this law is the recognition that young people, on occasion, do dumb things. An instance of bad judgment before one has the chance to mature and think like an adult should not necessarily handicap that person for life with a Criminal Record, which can have all kinds of negative consequences for future advancement. HYTA is equally applicable to Felonies and Misdemeanors, with the exceptions mentioned above. HYTA status allows a person to prove to the Court that they can stay out of trouble long enough to warrant dismissing the whole case without ever placing it upon their Public Record.

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September 6, 2009

Drug Possession in Michigan - Keeping it off your Record with 7411

As a Criminal Defense Attorney in Mt. Clemens, Michigan, handling Drug Possession Offenses, including Possession of Marijuana, in the Detroit area is part of my everyday routine. Sometimes, a person with whom I'm speaking has a vague, or general idea that a Possession charge can be kept off of their record. Most often, the person will tell me that they've heard of some legal provision that will allow a Drug Crime to be taken "under advisement" or "come off" their record.

637885_-top_secret-.jpgWhile that's partly true, the whole truth is even better: In many cases, especially in Drug Possession cases where a person has no prior Drug Possession convictions, it is usually possible to keep the entire matter from ever going on their record in the first place. This means that there is never anything which will need to "come off" their record later.

Many people are unaware that a conviction for any Drug Possession charge requires the Court to Suspend a person's Driver's License. While there is some availability for a Restricted License in Drug Possession cases (see my earlier Blog post for a detailed discussion of Restricted Licenses in Drug Cases), the bigger point here is that all of that can be avoided, and there will be no License Suspension, if the whole case is kept off a person's record in the first place.

The most common method by which a charge is kept off a person's record is known as a "7411." This actually refers to a statue (the technical term for a law) in Michigan's Public Health Code, formally known as MCL 333.7411. MCL stands for Michigan Compiled Laws, the formal title for Michigan's statutes (laws).

7411 is also known as a "deferral," which means, in a figurative manner of speaking, that a person, by arrangement with the Court, offers to plead guilty to a Drug Possession charge. The Court, by that same arrangement, essentially agrees to keep the whole charge and plea "secret."

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September 4, 2009

Getting out of a Michigan Traffic Ticket or Avoiding the Points

A fair share of my time, as a Metropolitan Detroit Attorney, is spent in Court handling Traffic Tickets. When I get a call from someone who is considering fighting a Ticket, they usually want to know 1 of 2 things:

1. Is there a way to "get out of" or "beat" the Ticket? or

2. Is there a way to at least avoid the Points?


Before I can answer that question, I have a couple of my own:

1. What does your Driving Record look like (i.e, any points, and if so, for what)? and

2. In what City did you get the ticket you're calling about?

MSP Ticket.jpgThe answers my questions allow me to give a good answer to the caller's questions. Let's look at an example: The other day I went to Court in the City of St. Clair Shores for a guy who received a speeding ticket on I-94. He had no points on his record, and it had been more than two years since his last ticket. He asked what could be done about the ticket. He knew that "beating" the ticket would be an uphill fight, as he had been caught going about 16 miles an hour over the speed limit by radar. When I learned he had no active points, I explained that it was quite likely I would be able to negotiate a deal with the Prosecutor for him to plead responsible to a "no point" offense which would not go on his record.

He was pleased with my answer, and then asked it there was a way he could just have me handle the ticket and not have to go to Court himself. When I explained that in Ticket, or "Civil Infraction" cases a lawyer could go to Court and handle the matter without the Client having to be there, he was thrilled. He made arrangements to send me the ticket, my fee ($400 in his case) and another check for $150 to cover the fine. I went to Court, worked out the deal I had discussed with him, paid his fine and sent him the receipt. Two days later, I received an e-mail from him thanking me for helping him out.

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August 21, 2009

Domestic Violence in Michigan- Dropping the Charges

As a Criminal Defense Attorney practicing in Macomb, Oakland and Wayne Counties, I know that most people do not think of themselves as wife-beaters or spouse abusers. Most people, in fact, are not. Yet this is precisely the label most people fear, and face, when they suddenly find themselves charged with the Misdemeanor offense of Domestic Violence.

While no two cases are alike, most cases follow one of several common patterns. By far, the most typical of all cases starts out with a domestic argument. Often, but not always, inhibitions are lowered because one or both parties has had a little to drink. Somehow, the argument escalates and an object is thrown by one party at another, or there is a push, or a shove, or sometimes even an outright smacking of one party by the other. Perhaps a neighbor or nearby observer hears the argument and calls the Police; other times, one of the disputing parties calls them.

arrest.jpgIf you are facing, or ever have faced this charge, you know what happens from here. The Police arrive and talk to each party separately. Sometimes, they have the (alleged) victim and/or any witnesses write out a statement. After all the talking and sorting things out, somebody leaves in handcuffs.

In the following days, tempers cool, and regret creeps into both parties' recollections. By this time, the arrested party has been arraigned by a Judge or Magistrate, and on top of anything else that was ordered as a condition of Bond, the person charged is ordered to have no contact with the (alleged) victim. This often creates family and/or household hardships that no one imagined.

Surprisingly, many of the calls that a lawyer receives from those looking for help are from the (alleged) victim. Even when the person charged is the one calling around for a lawyer, one theme runs through almost all of these conversations: Can the Charge be dropped?

The answer is always the same: No.

One of the more enduring misconceptions to which the world of TV and Movies has given rise is the notion that the person who claims to be a victim can "drop" the charges.

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August 19, 2009

Providing False Information to a Police Officer - Mistaken Identity

A case of Mistaken Identity, which I began handing in a local Macomb County District Court in the week of August 17, 2009, may have been entirely avoided, and will become certainly become completely avoidable, based upon new technology and equipment issued to Law Enforcement Agencies later that same week.

According to an August 19, 2009 article in the Oakland Press, "New Technology will help ID Suspects in 35 Seconds," a new handheld device can scan just two prints of a person's forefinger and identify the subject within 35 seconds. The device is to first be provided to the Sheriff's Departments in Macomb, Oakland and Washtenaw County, along with Police Departments in Clinton Township, Auburn Hills, Ferndale, Novi, Oak Park, Southfield, Waterford, Wixom, Dearborn and Westland.

fingerprint_scanners_250x251.jpgAs the lawyer representing this man charged with Retail Fraud in the Third Degree (stealing from a store). It is alleged he tried to steal hundreds of dollars worth of baby formula from a local grocery chain. When the suspect was detained in the store, he had no identification on his person, and used the name of his brother, my client, because he knew that his brother had a clean record and he knew his brother's birthday by heart. Because the name his brother provided, (my client's name), came up with a clean record, the Police, rather than arrest the suspect, released him at the scene and told him notice from the Court would be forthcoming.

It worked so well, he did it again. When my client received his first notice to appear in Court, he was shocked to learn that he had been charged with a crime. Not only did he not commit these offenses, my client, unlike his troubled brother, was punched-in and verifiably at work during the time these incidents occurred.

The first case was dropped after he came to Court with his work records and a letter from his boss validating them. The records showed he both punched in and out of work on the day in question, and, given the time of the suspect's actions and his subsequent detainment, that would have been impossible for my client to do. The same outcome is expected in the current case.


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August 12, 2009

Drug Possession in Michigan - What is the Amount Required?

"How can they charge me with possession for such a small amount?" This is another question that comes up quite often when handling drug cases. Possession charges can come about when a small amount of drugs, or residue of drugs is found. In some cases, a single marijuana "roach" (butts of a marijuana cigarette, often too small to be smoked any further), or a few "roaches" are found as part of a vehicle search. Similarly, leftover residue of burnt marijuana or other drugs, inside a pipe, is sometimes used to bring this charge.

Typically, the first question anyone who is facing such a charge asks is "isn't there some minimum amount" needed to charge a person with Possession?

The short answer is yes, but just enough to test. This means that even the smallest amount of drugs can create legal troubles.

Moreover, charging someone with Possession requires a lot less evidence than convicting someone of that charge. The often asked question, "how can they charge me with Possession?" can be answered rather simply: They can because they did.

Of course, there are scenarios where the mere presence of residue is not enough to sustain a Possession charge. For example, it is widely known that paper currency often carries small, or trace amount of drugs (especially cocaine) both because of the use of rolled up bills to snort the drugs, and because money and drugs are often in the same area. What's more, as money that has drug residue is folded up or grouped with other money that does not, some of the "clean" money will pick up some of that residue.

489547_cocaine_stripes.jpgThus, a trace amount of drugs on money found on a person, without more, is not enough to bring a Possession charge.

But a folded up rectangle of paper that was used to hold cocaine, or heroin, or a baggie with drug residue left inside is another story.

Similarly, the Prosecutor has to show that a person "knowingly" or "intentionally" possessed the drugs. Thus, if the "roaches" are in the ashtray of your brother-in-law's car, which you were borrowing, the charge may not stand up. If, on the other hand, the "roaches" are in the ashtray of your car, and you just forget to dump them out, then a Possession charge will probably stick.

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August 3, 2009

Expungements in Michigan - Erasing a Criminal Record

As jobs become harder to find everywhere, especially those in Macomb, Oakland and Wayne Counties, anyone looking wants to do everything to better their chances of being hired. As a Criminal Defense Attorney, I am often asked about Criminal Convictions, Criminal Records, and what to answer on a job application. Anyone who can avoid the burden of admitting to a Criminal Record is, of course, better off. More and more employers are running Criminal Background checks on current and prospective employees, and new laws in different industries (for example, Education and Health Care) prevent people from working in them if they have certain kinds of Criminal Convictions.

For those who have a Criminal Record they want erased, there are several requirements that must be met before they can even try to proceed.

Eraser.jpgFirst, the person who wants their record cleaned, called the "Applicant," must have no criminal convictions on their record except the one they are seeking to have removed. This confuses some people who may also have a past arrest for DUI or DWLS. Drunk Driving and Driving While License Suspended are Criminal Offenses. I note this because very often, when asking a person if they have any other crimes on their record beyond the one they'd like to have removed, they'll say "No, nothing more than a Drunk Driving Case a long time ago." If a person is seeking to have a Conviction removed from their record, and they also have had a DUI or a Suspended License conviction, no matter how long ago, they are ineligible. The law, while perhaps harsh, is also very clear on this point; if a person has more than one Criminal Conviction on their record, they are ineligible for an Expungement, which is legally known as a "Set-Aside of Conviction."

Second, an Applicant's conviction must be at least 5 years old.

Third, Driving-Related (and certain other very serious) Offenses cannot be Set Aside from a Criminal Record. This means that DUI and Suspended License offenses from the past cannot be removed.

If a person meets all of these criteria, then the process can begin by filing what's called an "Application to Set Aside Conviction." The process itself involves obtaining fingerprints, filing the Application with the Court where the Conviction originally occurred, receiving and attending a Hearing, and notifying multiple parties, including the State Police, the Michigan Attorney General, and the Prosecutor's Office that originally handled the case, of that Hearing. I describe the Process of "Expungement" more fully on my website.

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July 29, 2009

Retail Fraud - Civil Demand, Public Embarrassment and No Record

As a Criminal Defense Attorney in Macomb County, I spend a lot of time in the local Courts. Whether it's in St. Clair Shores, Eastpointe, Roseville, Clinton Twp., Sterling Heights, Shelby Twp., New Baltimore or Romeo, I am often representing someone charged with Retail Fraud who, when stopped leaving the store, had more than enough money to pay for the merchandise they were caught with.

Crying-woman-small.jpgMany Retail Fraud cases involve a person with a drug habit, who is stealing in order to either return, or sell the merchandise, in order to buy drugs. Likewise, a fair number of cases involve younger people, some of whom try and expand their wardrobes by getting some merchandise for "free," or are out on a "dare" to see if they can "get away with it."

Lately, I've run into several cases involving mature, grown, women, some of whom were married and had good jobs, who got caught trying to steal merchandise that they more than able to afford. Sometimes these cases are talked about in terms of a "cry for help."

Whether due to stresses at home or work, or perhaps because of looming economic stress, these Clients have spent an entire lifetime as solid, law-abiding citizens who suddenly engage in out-of-character behavior that defies explanation. Once caught, they are remorseful, tearful, scared of the legal consequences of their actions, and hugely embarrassed by them.

In the majority of these cases, the person caught will be taken to the Store's Loss Prevention Office. Sometimes, they'll be asked to write a statement of admission. In most cases, the Police are called. After the Police arrive, they'll take the person's name and information, and run a Criminal Record check on them to check their criminal background, if any, and to make sure they have no outstanding arrest warrants. If the person comes back with a clean, or reasonably clean prior record, they are usually not arrested or taken into custody.


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