Michigan Criminal Defense Lawyer Blog

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

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

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

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

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

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

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

2. Everybody else.

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

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

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

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

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

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

2. Everybody else.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Up to 93 days in jail.

Up to 360 hours of community service.

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

Possible vehicle immobilization.

Six points on driving record.

$500 Driver Responsibility fee for two consecutive years.

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.

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, (and also includes, on occasion, St. Clair, Lapeer and Livingston Counties), I am often asked by my clients about a way to keep a Drug Charge off of their Record.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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