Michigan Criminal Defense Lawyer Blog

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.

Anyone 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...

Continue reading "Probation Violations - Staying out of Jail in Macomb, Wayne and Oakland Counties" »

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

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

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

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

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

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

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

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

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

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

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

This bears some explanation.

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

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

As a DUI Lawyer who has been in practice for over 20 years, I have seen the landscape of the whole Drinking and Driving field change considerably over that time period. Within the body of articles in the Drunk Driving section of this Blog, I have covered many aspects of DUI cases, from the Traffic Stop, to the Field Sobriety Tests, to the actual Breath Test, right up and through how a DUI case is handled in Court, including the Alcohol Assessment Test, how and why that is so important, the steps in the DUI process, through what actually happens to the Driver in Court.

This article will not be as informational as are most of my others. Instead, my aim here is to look at how the DUI world has changed in the last 2 decades. I don't do this because I'm getting long in the tooth, or anything like that. Recently, a number of my DUI Clients have come to me with a prior DUI conviction or two from many years past, and can hardly believe what I'm telling them about how these cases are handled today.

To start with an example, I remember well when many Judges, in Sentencing someone for a DUI, would Order, as a condition of Probation, that the person simply NOT drink and drive. Today, there isn't a single Judge who does not, as a matter of course, Order a person to not drink at all during the term of Probation. In the overwhelming majority of cases, including most 1st Offenses and all 2nd and 3rd Offenses, this is backed up by an order for breath and/or urine testing. Sometimes this testing is done at random, other times it is carried out more regularly.

A number of years ago (okay, at this point I'll admit I've been doing this so long that I don't remember exactly when) a few Courts would order someone with a DUI to complete an "Impact Panel," often called a "Victim's Impact Panel." Now, every single Court, without exception, includes this as part of the punishment for a DUI. If the Pope got a DUI, the Judge might kiss his ring, but he or she would next order His Holiness to complete an Impact Panel.

Similarly, there has been an explosion of "Classes." With names Like Alcohol Highway Safety Class, to Alcohol Awareness Class, to what's called the ARM (which stands for Accepting Responsibility is Mandatory) Class, there seems to be no end to the kinds of Alcohol Education Classes a DUI Driver faces.

Today, just paying Fines and Costs is a relatively rare exception. 15 or 20 years ago, it was far more common.

Continue reading "DUI in Macomb, Oakland and Wayne Counties - How Things Have Changed" »

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

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

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

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

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

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

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

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

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

Most Lawyers who write anything at all about DUI cases tend to focus on the Evidence and ways to beat the case. However optimistic those sales pitches may be, the plain truth is that the overwhelming majority of DUI charges result in some kind of conviction. In most cases, after the Arrest, and after a person has been Arraigned, their Lawyer will work out some kind of "Plea Deal" that either reduces the severity of the offense or results in a Sentencing agreement or bargain.

This article will focus on what I consider to be, by far, the most important (and least talked-about) aspect of a DUI case. If the case is not dismissed on some technicality, or unless a person has gone to Trial and been found "Not Guilty," some kind of Plea deal will have been worked out by the Lawyer. By law, after a Plea (or conviction, if a person has gone to Trial and lost), but before the Sentencing can be imposed by the Judge, a person must undergo a mandatory alcohol evaluation.

This consists of a written alcohol-use questionnaire, along with an interview by a Probation Officer. This whole process is called the PSI, or Pre-Sentence Investigation. The end product of this process is a PSI Report, or Sentencing Recommendation. Michigan law requires that this Report be provided to the Judge at or before the time of Sentencing to help him or her decide what to do. On the date of Sentencing, both the person being sentenced and their Lawyer are required to read this Report before going in front of the Judge.

It is accurate to say that, almost without exception, whatever is recommended by that Report is exactly what the Judge is going to order. In other words, it is less accurate to call that Report a Recommendation than it is to call it a "blueprint" for what's going to happen.

I know that anyone reading this who has ever been through the DUI process before, (whether for themselves of with someone else) knows this to be true. In fact, I can safely say to anyone who has been through the DUI process before that whatever was recommended in that Report was, likewise, ordered by the Judge.

This means that unless a person is charged with a DUI where the Evidence is weak enough to be dismissed by the Judge, or otherwise has a Defense to the charge strong enough to "beat" it at Trial, they will be undergoing this PSI. And it also means that when the test has been taken and the interview with the Probation Officer completed, the final outcome of their case will have pretty much been determined. The Probation Officer "scores" the person's alcohol test. All of these test are "graded" with a numerical score; generally, the higher a person's score, the more likely they are to have or to develop and alcohol problem. Conversely, the lower a person scores, the less likely it is that they have an alcohol problem, or have the potential to develop one.

Continue reading "Michigan Drunk Driving - What Happens in a DUI Case " »

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.

Whether 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" »

No one wants to go to Jail. In my Criminal Practice, I try everything possible to make sure my Client doesn't wind up there. In the overwhelming majority of Cases I handle, my Clients avoid any incarceration. In fact, it is, fortunately, a rare occurrence when my Client doesn't walk out of Court with me.

At the beginning of any Criminal Case, the person charged generally has one concern above all others; staying out of Jail. When a Client is told that Jail can be avoided, and they will, instead, likely be placed on Probation, they are usually very pleased. Really, would you doubt me when I say that pretty much everyone charged with a Crime says they'll do anything to stay out of Jail? I'd say the same thing if the situation was reversed.

Somehow, though, as both time and the Case march on, some Clients become secure in the idea that they're not going to Jail, and then their thoughts turn to the details and Conditions of Probation. What will I have to do? Will I have to report? How often? When and where? What if my boss won't let me get that much time off?

To fast-forward a bit, all this thinking usually winds up with the Client asking me if we can get "Non-Reporting Probation." And although the final decision in any case is up to the Judge, there are certain generalizations we can make about whether or not Non-Reporting Probation is likely to be ordered in any particular case.

First, when a person pleads guilty to or is otherwise convicted of a Felony, Non-Reporting Probation is highly unlikely. Even someone with no prior Criminal Record, and who works out some kind of a deal in a non-violent type of case can pretty much bank on getting Reporting Probation. It's kind of like asking "why do we shake hands with our right hands, rather than our left?" And the short answer is "because that's the way it is."

Misdemeanor cases, by contrast, run the gamut of possibilities, from "absolutely not" to "perhaps." Geography plays a role in all this, as well. Because I only handle Criminal Cases in Macomb, Oakland and Wayne Counties, my observations are limited accordingly.

Continue reading "Probation in Michigan - Everyone Wants Non-Reporting" »