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.
First, 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?”
The bottom line is that if you find yourself facing some kind of charge, you have to get things made better. You need whatever charge you’re facing, or at least as much of it as possible,to go away. What’s done is done. Parents and younger readers may remember the Harry Potter movie “The Prisoner of Azkaban,” where Hermione Granger had a “time turner” that allowed her to go back in time a few hours and get a “re-do.” Unless you have a device like that, there is little point beating yourself up for something that cannot be undone. And this presents kind of an irony, because the people who will stress out the most about a criminal charge are usually people who have the least to worry about. The fact that a person has never been through anything like this is a good thing. By contrast, being an experienced defendant is not.
When I have to negotiate with the prosecutor, and if the charge is otherwise legally sound, then it becomes important to list as many favorable assets of my client as possible. If I am working to keep something off my client’s record, then his or her personal and professional accomplishments matter, as do personality traits like loyalty, often found in things like long -term marriages (or relationships) and long-term employment at the same job. The less a person looks like a criminal, the less likely he or she is to be one, or to become one.
Yet for all the value that stuff brings, the lack of a prior record carries a lot of weight, as well. In nearly a quarter century of practicing law, I’ve had plenty of clients who are good earners and hard workers, but who also play a little too hard and always seem to land in trouble. I can usually do a lot for them, but keeping a clean record is not part of the program for someone facing his or her 7th or 8th arrest. That said, even in cases where my client as racked up a pretty bad driving record, under the right circumstances, I can sometimes still avoid having something like a revoked or suspended license charge wind up on his or her record.
If you’ve never been in trouble before, then keeping your record clean is a very reasonable possibility. Even if you’ve been in hot water before, and especially if the new charge is for something for which you don’t have a prior conviction, then our goal is to avoid a conviction in the first place. This is where that social capital I mentioned earlier can really tip the scales in your favor. DUI’s are so common that often a person will come to me for something else and have a DUI on his or her record. I can usually work around that without any problem. The same thing applies if a person has something on his or her record from years ago. It becomes an obstacle, however, when a person seems to pick up a new charge every year or two.
While there are all kinds of charges that can be kept off of your record, drug charges, retail fraud charges, domestic violence charges, certain indecent exposure charges, some driving charges as well as pretty much any charge made against a person before his or her 21st birthday are the most common “avoidable” in terms of ultimately not winding up with a conviction on your record. Of course, there are numerous variables that must be considered and weighed as part of any kind of “deferral” analysis. And to repeat what I noted earlier, there are some charges (usually really serious) that cannot be kept off your record.
Many people are surprised to learn that the law specifically forbids keeping a DUI off of your record, and it specifically forbids ever getting a DUI removed from your record. The sad reality is that much more serious charges can be kept off, or taken off a record, but a DUI cannot. Some people want to argue about that, and decry the result as unfair. I agree that it’s unfair, but I don’t make the laws. It is what it is, and our feelings about the state of things won’t change them.
If you are facing a criminal charge and you feel horrible because it is so out of character for you, then is probably is, and that’s a good thing. We can use that to your advantage, and use that, where possible, to keep an otherwise legally solid charge completely off of your record. The feelings of dread and doom that you are feeling because you’re unfamiliar with the criminal justice system are almost certainly misplaced, and few, if any of the things you fear (especially jail) will ever come to pass. Those same feelings are usually the product of inexperience, and lacking experience in facing criminal charges is an asset.
Sometimes we get so caught up in analyzing the cold, hard facts and inflexible written laws that we overlook the human element of all this, That human element is not only important, but perhaps of paramount importance, especially when dealing with someone for whom a criminal charge is a once-in-a-lifetime thing, or who has made a few mistakes. Your value as a member of society can be used to shoe that you are clearly not bred for a life of crime, or otherwise training for a criminal career. As a therapist I know once said, albeit in a different context, “feelings are facts.” If you’re concerned or worried, let’s make sure those feeling (i.e. facts) are used to your full advantage.