Articles Posted in Criminal Cases

As much as I hate having to increase my fees, and like the idea of writing about it even less, as the lawyer I am, I believe that not being clear and upfront about costs is a huge red flag. Almost since I launched my first website over 10 years ago, I have always published various fee schedules specifying what I charge in driver’s license restoration and clearance appeals, DUI cases, and criminal matters. A published fee list always was and still is unusual amongst lawyers, to the point that I’m not aware of ANYONE else who does it. And while I understand how most lawyers would rather establish a rapport with a potential client before talking money, I have always been suspicious of any person or operation that avoids or otherwise skirts around the subject of cost. Given that I’m the only lawyer I know who actually lists fees, it’s obvious that I’m in the minority here, but I have always lived by the golden rule – to treat others as you would wish to be treated – and this is one way I do that. I will get to the actual numbers later in this article, but to be clear, as of January 1, 2018, my fees in driver’s license restoration and DUI cases will be going up, as will my fees in most misdemeanor cases, as well. That said, none of my fees will go up very much, but I want to give some advance warning AND protect myself so that if someone finds an old price referenced somewhere, I can rely upon this article as notice.

Picture1Undoubtedly, one huge benefit I derive from publishing my fees is that I don’t have to bother with “tire kickers” and time wasters who either cannot afford the kind of service my office provides or who are otherwise focused on low cost. Price matters, of course, but it should not be the primary consideration in certain decisions (particularly medical and legal issues), at least for those who can afford to not make it so. For example (and I’m not out to insult anyone), I have been a Verizon customer for many many years. Once, a long time ago, I got sucked into using Nextel (they’ve long since folded) based upon the appeal that I could save a lot of money on my cell phone bill. Things are a lot different today, with unlimited calling plans, but back then, cell phones could cost as much as 30 cents per minute, so any break was a good one. To manage costs, I left Verizon (I think it was called something different then), got my new Nextel phone, and tried to convince myself that the money I was saving was worth all the dropped calls and inferior service I had accepted in return. The last straw came one day, while in the back of a Home Depot store, where I couldn’t get service with my Nextel phone, I borrowed my wife’s, which was either a Verizon phone, or it’s predecessor, and made a call that could not be made on mine. This drove home the point that you often have to pay more for better quality, but that, in certain situations, it’s just worth it.

In my capacity, I don’t compete, nor, frankly, do I need to compete, with any other lawyers based on price. In driver’s license restoration and clearance appeals, I guarantee to win every case I take. In addition, you will never meet another driver’s license restoration lawyer with anywhere near the passion I have for license appeals. Take a look around this blog; I have written and published over 400 license restoration articles to date. That’s more articles than the number of license cases all but the fewest lawyers will ever take in their entire careers (I handle about 200 license restoration and clearance appeals per year). DUI cases make up the other major part of my practice (I have put up more than 320 DUI articles), meaning that alcohol is really at the center of almost everything I do. In that sense, I’m kind of like a Q-tip, with DUI cases on one side, license restorations for multiple DUI’s on the other, and alcohol as the stick that connects them both. To make sure I’m the very best at what I do, I went back to the University classroom and completed a post-graduate program of addiction studies. I use this clinical knowledge every single day to produce better outcomes for my DUI clients and to help win back the licenses for my license restatement clients. That’s not the kind of commitment and investment you’ll get from any bargain lawyer.

One of the most significant real-world considerations for anyone facing a DUI or other misdemeanor criminal charge is whether the it will be prosecuted by the state or a local municipality (this can mean city, village or township). To keep this article simple and straightforward, we’ll skip the analysis of all the background legalities that ultimately have zero effect on your case, anyway. This is important stuff, however, and really should be examined by anyone facing either a drunk driving or criminal charge that is not a felony. If the reader has any paperwork (especially either a citation issued by the police, or a court notice) relative to his or her case, either get it out now, or save this article and refer back to it when you have your information at hand. If you were given a ticket, look up near the top left and you will see a section with the words “The People of” and then one or more check-boxes that say “the State of Michigan” and “the city of _____,” “the Township of _____,” and/or “the Village of _____.”

design-190x300If the “State of Michigan” box is checked, then your charge is being brought pursuant to state law. If any of the other boxes are checked, then your charge has been or will be made under a municipal ordinance. If you have a court notice, you can usually tell by looking at the listing of the plaintiff (some notices, like those on a “postcard,” don’t have this) and seeing if it’s either the State of Michigan or, instead, a city, township or village name. Make no mistake, the prosecuting authority can directly and significantly impact what ultimately happens to you. When you’re facing something like a 1st offense DUI charge (usually written as OWI, or “Operating While Intoxicated”), none of this is obvious, and the reader might therefore wonder, “what the hell difference does it make, anyway?” The short answer is that it can make a huge difference that can affect things like your ability to drive and save you thousands of dollars.

I promised to keep this article simple, so beyond pointing out that felony charges can only be brought by the state, and not by a municipality, the reader will have to accept my representation that the details of how and why certain misdemeanor charges can be local or state can get very deep, and there is a lot to why something like a DUI fist offense, High BAC, Driving While License Suspended (DWLS) or Possession of Marijuana case may be brought under either state or municipal law. Most of this, fortunately, is only of academic interest to some (and not even all) lawyers, and none of it affects a case once a charge has been made. The upshot of all this, however, is that if you’ve been charged with something, your lawyer will eventually sit across the table from either a county prosecutor (who represents the state), or a municipal (city, township or village) prosecutor (often simply called the “city attorney” or “township attorney”) and try to work things out. That matters because, to be blunt about it, it’s often easier to negotiate a better deal with a municipal prosecutor than it is with one from the state. Indeed, even in the same situation and facing the same charge, there are certain plea bargains that simply cannot be obtained in a state case that usually can be worked out if the charge has been brought under a local ordinance. This, by the way, has nothing to do with any prosecutor or municipal attorney being a nice or decent person, but rather only reflects limits imposed by their particular employers.

Every DUI (and criminal) case formally begins with what is called an arraignment. This is the very first step in the legal proceedings, but in some courts, it can either be skipped, or take place without you being aware of it. Other courts require a person to actually show up and go before a Judge or Magistrate. As a Michigan DUI lawyer, I am always adapting to the ever-changing landscape of how arraignments are handled in the various, local Detroit-area courts. In this short article, I want to pass along a few things that anyone arrested for a OWI (Operating While Intoxicated) should know about this first step. In fact, the reader may not even know what an arraignment is, but be concerned about either the “Appearance Date” section of his or her citation, or some other instruction, typically given by the police, to call the court within so many days. As we’ll see, this is all kind of the same thing and relates directly to DUI arraignments. To make this article useful, we’ll skip all the technical, legal mumbo-jumbo, and focus instead on the things you need to know and do right away,

understand-159x300A 1st offense DUI charge is a misdemeanor, as is a 2nd offense charge. A 3rd offense DUI charge, by contrast, is a felony, and that distinction is useful here in our discussion of arraignments. By law, if a person is charged with any felony offense, he or she must be arraigned, in person (this can be done on video), by a Judge or Magistrate. This is not the case with all misdemeanor offenses. An arraignment does 3 main things: First, the person is told of the exact criminal charge or charges being made against him or her, and the maximum possible legal penalty that can be imposed for each. Second, the person is advised of his or her constitutional rights, including the right to remain silent and the right to have an attorney (and to have one appointed if he or she cannot afford one). Third, and most relevant to our discussion here, the Judge or Magistrate decides what kind of bond the person will get. This means both how much money must be posted to get and/or remain out of jail while the case is pending, and also the things the or she must do, and cannot do (like use any alcohol), while out. As part of all this, the person is usually asked how he or she pleads, although most courts (thankfully) will almost automatically enter a plea of “not guilty” at this stage.

The most important part of all this for a reader facing a DUI charge in any district court in Macomb, Oakland or Wayne County is that in many cases, this arraignment can be “waived,” meaning that not only can a person be released from jail without having to be formally appear before either a Judge or Magistrate, but even later, the lawyer can file papers with the court to skip this step entirely. When done this way, a “not guilty” plea is automatically entered, and whatever amount of money, if any, the person posted at the police station (often something like $100 to $500, but sometimes, a person is let go without having to put up any money) counts as his or her bond and no further money is needed to remain out of jail. And don’t worry about any specific date on your citation or bond receipt; as long as you hire a lawyer before then, it’s very likely that date won’t hold, and you either won’t have to go to court at all, or will go for your arraignment at a later time, with the lawyer. Whatever else, though, you or your lawyer must contact the court within the time frame or specific date you were given.

This article will examine those situations where a person has an outstanding criminal or DUI case, or an old warrant (for something like a probation violation) that needs to be cleared up and wants to take care of it. As a Michigan criminal and DUI lawyer, my office handles several matters like this every month. Over the course of the last 27-plus years, I’ve done this so many hundreds and hundreds of times and know the procedures so well that it’s easy to overlook the fact that someone trying to get a handle on it may want to know something about how it all works before deciding to call a lawyer.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2017/11/Fix-1.2-176x300.pngAt it’s most basic, an old or outstanding warrant is there because you didn’t show up. Even if you were abducted by aliens, the bottom line is that there is a pending court matter that has not been addressed. In the course of my years, I’ve seen every reason imaginable, from people who were going through a bad time “back then” and just blew it off, to folks who truly never knew about the case or warrant, and everything in-between. Whatever the history, there are only 2 situations that really matter now, and that’s whether you’re turning yourself in voluntarily or you’ve been picked up somehow. In other words, are you a voluntary surrender, or did you get get caught? Of course there are nuances to all of these things (someone who got picked up as a result of a traffic stop may have truly not had any clue he or she had an outstanding warrant, and someone who has let a matter hang out there for years may be motivated to take care of it only because he or she needs to do so for something like a new job), but in general, it’s almost always better to present yourself rather than have the warrant catch up with you.

Part of my job, at least in a voluntary surrender case, is to make arrangements with the court to handle the matter. Every court is different, at least to some extent. Sometimes, there’s nothing more to arrange beyond just showing up together. Many district courts, however, only handle these matters on certain days and/or at certain times. This seems strange, that a person who is “wanted” and is willing to come in to recall an outstanding warrant can really only do so on certain days, and/or at certain times, but that’s the reality. This is more important to someone who now lives out-of-state, or far away from where the case is pending, because one of the big goals here is to minimize the number of trips to court and to get this resolved as efficiently as possible. Of course, on of the biggest fears is that you’ll be thrown in jail, but I cannot recall a single instance of that ever happening to any of my clients when we’ve done this voluntarily. Normally, I will instruct the client to bring a certain amount of money for bond (just in case), but however that part of things plays out, both my client and I can plan to walk out the front door together, often with a new date to come back to court.

This short article, like many others on this blog, was inspired by a conversation I had with Ann, my senior assistant. She was giving me the details of a conversation she had with someone regarding his DUI and suspended license charges, and noted that the caller had pointed out how he watched in court as one woman went before the Judge for a drinking and driving offense and didn’t get any jail time, and then tried to use that as a basis to predict what would happen in his case. Ann asked, of course, it he knew anything about her charge, prior record, or case history, and he responded that he didn’t. Ann then explained to the caller that no two cases are alike, and that you can’t ever compare your situation to anyone else’s, especially if you don’t know all of the details. That’s when the idea hit me, because I realized that just about everyone one of us looks around for comparisons in just about every situation we find ourselves. That may work, or at least work better, when it comes to fixing a jammed garbage disposal or something like that, but not within the context of a criminal or DUI charge, where there are just way too many variables.

compare-apples-and-oranges-IDIOM-300x253You most likely know this already, but that doesn’t stop you, or me, or really all of us from doing it anyway. That’s human nature. My hope is that this short article will help make clear how this not only doesn’t work in criminal and DUI cases, but can also be misleading. Let’s use an example: Imagine Drinking Dave picks up his 1st DUI in city “A.” On that same night, Tipsy Tina is also arrested for her 1st DUI in city “A,”, as well. Sounds kind of like they’re in the same boat, right? Well, there are about a million things (maybe even more) that could make their cases very different, and that, in turn, could make what happens to each of them very different, as well.

If Tina has had 2 prior MIP’s, even if they were quite a few years ago, her relationship to alcohol is going to be perceived by the court as risky, if not outright troublesome. This would be even more so if her BAC at the time of her arrest was high, like a .21. If Dave, by contrast, has never been in any kind of trouble before and his BAC was .12, he’s just automatically going to be seen as less risky than Tina. Generally speaking he’s likely to wind up with a less demanding term of probation, meaning he’s likely to have to test less frequently, and will probably not be found to need the level of rehabilitative or treatment services that seem almost certain for Tina.

As a local, Detroit-area criminal and DUI lawyer, I am in court just about every single workday, strategizing and speaking to make things better for my clients. however, lots of lawyers are in court everyday, so that alone doesn’t make any particular one better than all of the others, in the same way that the hot dog vendor is at the hockey arena almost everyday, but that doesn’t make him or her any kind of star player. It’s a matter of instinct and talent. If you’re facing a probation violation because you’ve messed up, you need to hire a real star, meaning the kind of lawyer who can talk the stripes off a tiger, talk you right out of trouble, and out of going to jail. In this setting, the ability to persuade is the most important trait you need on your side.

Helping-Hand-298x300If we’re going to be honest about probation violations, then we need to recognize that the majority of them occur because a person has either done something prohibited (like consume alcohol, use drugs, or pick up a new charge) or not done something required (like fail to complete some kind of classes or counseling). Less frequent, but still common, are those cases that involve things like a missed test (the courts basically conclude a test was missed because it would have been positive) or a false-positive test. For the most part, how and why ever it may have happened, if you’ve been violated, you’ve probably screwed something up, even if that wasn’t your intent. Judges, for their part, spend an enormous amount of time everyday listening to excuses about all this. For example, one of the most common (and least accepted) reasons given for a positive alcohol test is the use of cold medicine. It is so worn out that it is known as the “NyQuil defense” and so widely disbelieved that you can practically read the frustration on many Judges’ faces as someone tries to use it. Beyond the NyQuil defense, every Judge has heard every other excuse in the book, probably a thousand times over, so to get the best result in a PV, you can’t walk into court and sound like everyone else.

In a very real way, I think of probation violation cases as the true test of a lawyer’s ability to communicate effectively and speak persuasively. There are some really great attorneys who can make brilliant legal arguments about things like evidence and legal procedure, but that’s all dry stuff. When you’re standing in front of the Judge for violating probation, your lawyer needs to be the exact opposite of dry. As much as this requires a superb extemporaneous speaking ability, there has to be substance to what’s being said, as well. There’s an old saying that “if you can’t dazzle them with brilliance, baffle them with bull$hit.” Neither of those things are particularly useful here, or, maybe, you need a little of both. Remember, your Judge, like every other Judge, has heard it all. As a lawyer, when I’m handling a probation violation, I have to explain my client’s situation, keep the Judge’s attention (by not sounding like everyone else), and then persuade him or her to not lock up my client. At the end of the day, it’s what doesn’t happen to you that matters most, so all of this stuff can sound real good, but it’s really only worth anything if it keeps you out of jail.

The location of your criminal or DUI case is one of the most important factors in determining how it will turn out, and what will (and will not) happen to you. As a local, greater Detroit-area criminal and DUI lawyer, the very first question I ask when presented with any new case is “Where?” For example, a simple possession of marijuana case in one city can be potentially wrapped up in one court date, the whole thing kept off the person’s record, and result in nothing more than the assessment of reasonable fines and costs, while, across town, that same case could easily cost more than twice as much and land the person on probation with required drug testing, community service, and maybe even a “marijuana awareness” class (or classes), as well. There is really nothing you can do to change this, other than make sure your lawyer is familiar with how things are done in the court where your case is pending.

1304655796181855921-282x300It is certainly better if your lawyer is familiar with both the local courts in the broader geographic area where your case is pending, as well as the specific court in which you’ll be appearing. For me, that means all the courts in Oakland, Macomb and Wayne Counties. Even within the Tri-County area, however, there are some lawyers who spend so much time in any one particular court that they kind of miss out on the big picture of how things are done elsewhere. While there may be some truth to the notion that a lawyer who is “always” in one specific court really knows how things work there, it is also true that he or she may be too entrenched in that system to be capable of really standing up for the client and push for a different outcome. Think of the stereotypical teacher’s pet; you don’t want that for your lawyer. On the other hand, you certainly don’t want to be stuck with an attorney who isn’t in your court often enough to know how things are done there and, therefore, doesn’t know how to properly guide you through it.

What I’m saying, on the one hand, is that where your case arises is so hugely important that location plays a primary role in the outcome, and the lawyer you hire should be familiar with that court. What good does it do to bring in some attorney who can’t tell you how things are done there? On the other hand, I’m also saying that while experience with the court where your case is pending is important, you don’t want your lawyer to seem like he or she is employed there, either. That only creates a kind of unhelpful tunnel vision. Instead, the right amount of familiarity should be part of a broader understanding of how things are done across the larger local area. I can’t count the number of times I’ve persuaded a Judge to do something different (as in better for my client) by explaining how it’s done in another court. If you’re sensing that there is a kind of balance here, then you’re getting the point.

There is a certain amount of embarrassment that just automatically goes along with facing an Indecent Exposure or Aggravated Indecent Exposure charge. Because I handle more Indecent Exposure (IE) cases than just about anyone, at least in the Detroit area (Wayne, Oakland and Macomb County), where I practice, I know this well, having sat across the table from clients facing these charges more times than I can count. Beyond having developed an expertise in handling these cases, I have also honed a special skill in handling the clients who have to deal with these charges through the criminal court system. Some of this is attributable to my background: after earning my undergraduate degree in psychology and then going through law school, I also completed a post-graduate program in addiction studies, a rather specialized area within the broader field of psychology, and one where there is always some psycho-pathology at issue. I understand that an IE case can result from some underlying stress or trouble a person may be experiencing (and about which he may not be consciously aware), but I also know that these incidents can just “happen.” Not everything about a case has be a big deal, and my job is make sure that, to the extent possible, we keep it that way in yours.

642x361_Embarrassed_to_Visit_Your_Doctor-1An interesting thing happened the week this article was written. In the course of meeting with a new IE client, his explanation for what led to his arrest involved circumstances a bit different from what I usually hear. It wasn’t the uniqueness of his case that struck me, but the fact that, within my office, no one even thought to ask about it. In other words, this poor guy came in, understandably embarrassed, even though he didn’t need to be, and because my staff and I see so many of these cases, neither my senior assistant, my paralegal, nor my associate attorney so much as asked what happened in his case. Once he left, my staff took his information and contacted the court where it is pending and made sure all the paperwork, including the request for the police report, was properly and quickly filed. To everyone on our end, his case was no big deal; in fact, it was just another day at the office.

Feelings of embarrassment are normal, and expected, really, but they are also useful in assessing whether a person is a risk to re-offend. Here, I kind of have to split myself in two and look at this both from the clinician’s point of view, and also from the perspective of a defense lawyer who knows how to best resolve these matters. I’ve read countless clinical assessments in these cases – some completed by court-order, others undertaken at my suggestion to help in a case (and for what it’s worth (and this it’s no great secret that a savvy lawyer would do this) if an assessment done privately comes back and is not helpful to the case, it will never see the light of day), and they can be impressive in their use of scholarly language. At the end of the day, though, the part of the assessment everyone looks to is the prognosis about whether the person is likely to engage in such behavior again, or not. And sometimes, when the Judge believes the person has been embarrassed enough, it can be enough to put any such questions to rest.

As a Michigan criminal and DUI lawyer, I am contacted all the time by people facing something like a drunk driving, suspended license or possession of marijuana charge and are worried about the upcoming date on their citation.  In this very short article, I merely want to explain what this means and help the reader understand that, for the most part, and despite what it may seem like, the date on your ticket is most often NOT any kind of fixed “court date.”  This is very relevant to those who contact me after something like a DUI arrest. worried about getting an appointment right away and saying something like, “My court date is next Tuesday.”  To be sure, every criminal case begins with a first court date called an arraignment.  I’ve written extensively about that, and would encourage the reader interested in a detailed examination of what that proceeding is all about to read the linked articles.  Here, we’ll look at arraignments in more superficial terms of its position in the larger picture of a criminal or DUI case and how it gets started.

imagesSometimes, a person is brought before a Judge or Magistrate for arraignment while he or she is in custody after an arrest.  This can be done by video or by actually having the person come into a courtroom.  If you’ve already done that, then you can skip this article entirely.  For everyone else, imagine your notice to appear or instruction to otherwise contact the court (this can be on the ticket, on a separate piece of paper, like a bond receipt, or just be something the police tell you as you’re released) in the way you’d think of an email confirmation to register with a website; once you confirm your contact details, then all relevant notifications can be sent to the right place.  Before you wonder what the hell that means, let’s look at one of the most common situations following an OWI arrest: A person is released with a ticket that arises them to appear in court “on or before” a certain date, or to contact the court within so many days.  If the person just picks up the phone and calls the court, many times, the clerk will simply confirm the person’s address and then tell him or her that notice of when to appear will be sent.  That notice can be for something called an arraignment, a pre-trial date, or a combined arraigment/pre-trial; the details don’t matter as much as the fact that all a person needs to do is call the court to find out what to do next, and much of the time, he or she will be told to just wait for something in the mail.

In some cases a person is given a date to appear for an arraignment.  The short explanation of the arraignment is that it is a proceeding in which a person is formally told the exact charge(s) against him or her ( e.g., Operating While Intoxicated), advised of his or her constitutional rights (“You have the right to a lawyer…”), and given conditions of bond (“Do not leave the state without the court’s permission…” etc.).  For those released from lockup without posting any money, a bond amount (usually a few hundred dollars, at most) may be required, as well.  In many courts, depending on the charge, that arraignment can be “waived” by a lawyer so that a person does not need to go.  When a lawyer files the papers to waive an arraignment, a “not guilty” plea will automatically be entered for him or her, and the person and the lawyer will await a notice from the court to show up for what’s called a “pre-trial” date, where discussions about resolving the case are had between the lawyer and the prosecutor.

Of all the things I do in my criminal practice, none is more acutely serious, yet nearly as un-technical or less legalistic than handling probation violations.  There are really 5 things you should know if you’re facing a PV (also called a VOP for “violation of probation” in some courts, and a “show cause” in others).  We’ll set them out below and then look at each, in turn:

WCsTCWT41. Your lawyer is your most important asset Now is the time to hire the best-spoken attorney you can get.  Sure, you can go cheap, but how much good will the money you saved do you when you’re sitting in jail?  You don’t always get what you pay for, but you’ll almost never get what you don’t pay for.

2.  Facts matter.  What happened, and what did not happen, and the why of it all is important, especially if it helps your cause.  You need to make sure your lawyer takes the time to understand everything relevant about your alleged violation in order to make things better for you.