Articles Posted in Criminal Cases

In part 1 of this article, we began our examination of what makes a felony different than a misdemeanor in Michigan. We saw that one key distinction is the maximum possible penalty that can be imposed, and that a misdemeanor can never be punishable by more than 1 year in jail, whereas a felony carries a potential prison sentence of any number of years. We then distinguished jail, where a person can be housed for no more than 1 year, from prison, where a person will usually remain for at least a year and a day. We then began to explore the differences between how a felony and misdemeanor charges are handled, at least at the early stages, in court. We saw how a felony charge is “tested” in the district court at the preliminary examination stage. We’ll pick up there:

preview-full-blog-post-8-16ac-01-2-300x166At a preliminary exam, the prosecutor will call some witnesses. This usually includes the arresting and/or investigating police officer, a victim, if there was one, and maybe a key eyewitness. Not everyone needs to testify at this phase of the case. Remember, this isn’t a trial, and the prosecutor doesn’t have to prove anything like guilt beyond a reasonable doubt, but merely that there is a debatable question of fact that the defendant committed the charged crime. In that sense, “he-said, she-said” is more than good enough for a case to survive the probable cause test at this stage.

Another way to think about this is that all the prosecutor has to do, really, is show the Judge that the case against someone is not BS. In other words, unless the district Judge would feel comfortable saying something like, “this charge is baloney,” then the case will be allowed to continue to the circuit court. On the other hand, if the Judge can say something like he or she finds no evidence that a crime was committed or a law was broken (this rarely happens), or, that he or she cannot find that there is at least an open question that the person charged with the crime did, in fact do it, then the matter will be dismissed.

As Michigan criminal and DUI lawyers, my team and I deal with both misdemeanor and felony charges every day. Often enough, we’ll be asked by a client to explain the real difference between the 2 kinds of offenses. This happens a lot when the charge my client is facing is one that can be brought as either a felony or a misdemeanor, like DUI’s, embezzlement, indecent exposure offenses, as well as certain drug crimes. In this 2-part article, I will examine and provide an overview of what differentiates a felony from a misdemeanor charge.

apples-oranges-hero-188x300The one thing that most people know right out of the gate is that a felony is more serious than a misdemeanor. Few things in the law are absolute, but the idea that facing a misdemeanor is always “better” than facing a felony is one of them. Of course, the flip side is that facing a felony is always “worse,” and usually more expensive.

In Michigan, the biggest difference between a felony and a misdemeanor is the maximum amount of time a person can be incarcerated. By law, a person cannot be locked up longer than 1 year for a misdemeanor. To be sure, a person can be convicted of a felony and not be required to serve any time at all, or, he or she can be sentenced to less than a year in jail, but in no case can a misdemeanor conviction result in a sentence of greater than one year in the county jail.

DWLS and DWLR cases all start with one common factor – the lack of a valid driver’s license, but they go in many different directions from there. A person who picks up a DWLS charge after not paying a ticket is going to need different “lawyering” than someone facing a DWLR charge, and who has had his or her license revoked after 2 or more DUI’s, especially if that person has any intentions of every trying to get it back in the future. There is a prevailing misconception that suspended and revoked license cases are all pretty much the same. In fact, the reality is very different.

RD144-Proceed-with-CautionIn general, suspended and revoked license charges provide one of the best examples of the admonition that “a little knowledge is a dangerous thing.” Over the course of my career, I have, in many cases, had to explain subtle but important nuances of licensing law to both Judges and prosecutors. Because I am a full-time driver’s license restoration and DUI lawyer, I work with the laws and rules that affect driver’s licenses every single day. I deal with everything, from the most common issues to the most obscure. I’ve had to research license issues most lawyers, including Judges and prosecutors, would never know exist, and then figure out how to resolve them.

A central focus of our work is helping people win their licenses back, which helps explain why my team and I often get a better plea deal in a suspended and revoked license cases. Many of our clients are people who don’t have a license (usually, because of multiple DUI’s), and want to get it back. When someone who is, or will soon enough become eligible to win their license back winds up facing a revoked license charge, or any kind of charge that can legally delay their ability to file a license appeal, we have to work things out so that doesn’t happen, and they can mover forward sooner, rather than later.

If you are facing an indecent exposure, or aggravated indecent exposure case, then you already realize that it’s an uncomfortable situation. If you’re looking for information online, you will quickly run into fear-based marketing tactics from lawyers and reactionary comments from the public. In this article, I want to make clear that no matter how awful you “feel” right now, things are almost certainly not as bad as you probably think, and the best thing you can do is stop freaking out, take a few breaths, and slow down enough to learn that you can get past this whole situation rather painlessly, and often with little or no damage to you or your record.

natural-help-male-infertility-800x600-300x269Let’s quickly separate and explain the 2 indecent exposure (IE) charges: For starters, there’s the plain old “indecent exposure,” meaning a person’s genitals were exposed. This is a misdemeanor charge, and it can be brought for any kind exposure of the genitals, whether outright “flashing,” or even if a guy gets caught urinating. Next, there is “aggravated indecent exposure,” where a person was observed fondling his or her genitals. “Fondling” does not necessarily mean (although it can include) actual masturbation. Thus, any rubbing of the genitals is enough. Aggravated indecent exposure is a felony, but a special kind of “light” (meaning lenient) felony, often called a “high court misdemeanor.” To be perfectly clear about it, although the term “high court misdemeanor” may sound better, it is still a felony.

It’s not uncommon for someone facing an IE charge to panic when they hear the word “felony,” but the good news is that here, that reaction is mostly unfounded. Sure, an aggravated indecent exposure charge is in some ways, “worse” than plain old indecent exposure, but that has more to do with procedure and, yes, money. A felony can involve way more court appearances and legal work than a misdemeanor. Even so, at the end of the day, most aggravated indecent exposure cases can be wrapped up rather simply, and without a lot of negative consequences (like jail). There are, however, certain important potential issues that must be addressed in both indecent or aggravated indecent exposure cases to make things go more smoothly. Let’s look at them…

In this article, I want to zero in on that feeling – that special moment – when a person caught up in a DUI (or really any other legal mess) just “knows” his or her relationship to alcohol has become troubled, or at least is no longer able to deny to themselves that their drinking is causing problems. In that context, one of the best observations I’ve ever heard is that “anything that causes a problem IS a problem.” This kind of dovetails with a well-known AA slogan: “I didn’t get in trouble every time I drank, but every time I got in trouble, I had been drinking.” If you’re facing an OWI, or some other kind of criminal charge or problem (like a probation violation for alcohol), and you’re wondering if your drinking might be part of the reason, the answer is almost certainly “yes.”

Alcoholism-Who-Does-It-Hurt-How-Does-It-Affect-Loved-Ones-300x272You haven’t spent much time wondering if something else is the problem, have you? Did it ever cross your mind that you’re sitting in the back of a cop car because you eat too much pizza, or work out too often, or watch more TV than you should? The point I’m driving at is that once you get any kind of nagging feeling that something’s up with your drinking, it almost always is. The simple truth is that alcohol screws more lives up than you could ever imagine. I see it every single day. If you could do my job for any length of time, you would have a front row seat to watch people going out and getting in trouble again and again, all because of drinking.

It’s often said that “the definition of insanity is doing the same thing over and over again, and expecting a different result.” When it comes to racking up DUI’s or other criminal charges after drinking, people frequently live in a state of denial, while everyone around them sees their use of alcohol as the real problem. Whatever else, there has probably NEVER been an occasion, in the history of the world, where someone has had that sinking feeling that their drinking has become a problem and been wrong about it. So how do we deal with this?

The idea for this article came from my associates after a week where we saw how things go bad the minute someone starts talking to the police without a lawyer. What I want to make clear in this article is the one universal piece of legal advice that holds true in every situation: shut up. If you are being questioned by the police, always exercise your right to remain silent. In fact, of all the rights we have as Americans, none is waived so freely, so frequently, and so much to a person’s detriment, as the right to remain silent. In the real world nobody ever talks themselves out of trouble – it’s just the opposite. If you haven’t talked to the police yet, then don’t. If you already have, then we are simply left with the reality of that.

smiley-zipping-mouth-300x210We’ll begin by restating what is far more overlooked than obvious: you have an absolute right to remain silent. We’ll get into this more later, but the day before this article was written, I met with a client who hired me after he spoke to a police detective and was subsequently arrested and charged with a crime. Because he is a nice guy who has never been in trouble before, my client naively asked the detective if it was a good idea to be talking to him, and if he should get a lawyer first.  The detective, for his part, answered the question rather diplomatically, and replied, “I can’t tell you what to do.”  Of course, my client now understands that he should not have said a word.

People often feel obligated, or in some way “pressured” to answer questions when asked by the police. Most people are good by nature, and even though they may have broken a law, they don’t want to appear uncooperative, and because of that, they “cooperate” themselves straight into more trouble, only to later realize they should have just kept quiet.

When you’re facing a criminal or DUI charge, it’s best to have a lawyer who is familiar with the court where your case is pending and the Judge presiding over it. Because the concept of “local” can differ by location, I want to clarify the idea of hiring a “local” lawyer. In the Metro-Detroit region, “local” has a very different meaning than in less populated parts of Michigan, and generally includes lawyers from anywhere within the Tri-County area. In other parts of the state, “local” can mean just the county where the case is pending, or even a specific part of it. In this short article, I want to examine what “local” means when it comes to hiring a lawyer for something like a DUI, suspended or revoked license case, or a criminal charge here, in the Greater-Detroit area.

LocalInsider-hero-300x256For anyone with a case in Oakland, Macomb or Wayne County, a “local” lawyer is not limited merely to one whose office is in the same city or county where the charge has been brought. Although that definition is overly narrow, it’s worse to have no concept of “local” when it comes to hiring a lawyer. I am, often enough, contacted by people from distant counties who want to hire me, and while that’s flattering, I have to explain that I keep it “local” by limiting my criminal and DUI practice to the various district and circuit courts of Oakland, Macomb and Wayne Counties (this is in stark contrast to my driver’s license restoration practice, which is statewide). Because of the geographic limitations on where I travel for court, I have no experience with how things are done elsewhere. As good as some attorney may be, one of the worst thing a person can do is to pay for him or her to make a “special trip” to some court where he or she does not practice regularly.

This isn’t complicated. To be perfectly blunt about it, like most things, it all comes back to money. As the old saying goes, if you want to know why something is the way it is, “follow the money.” In my case, I’m fortunate to be busy enough to not have to travel to courthouses all around the state. Some lawyers don’t have that option, and have to take cases wherever they can. As a client, you’re far better served by a lawyer who knows how the Judge assigned to your case does things. Every Judge is different, and what works with one may not fly at all with another. You should hire a lawyer who already knows all this stuff, and who uses his or her experience for your advantage.

In the real world of criminal and DUI cases in the district and circuit courts of Oakland, Macomb and Wayne Counties, a certain, consistent percentage of people put on probation will be brought back for violating it. This often includes people who you would have never expected to get in any kind of trouble in the first place. I’ve had plenty of very unlikely, well-heeled DUI defendants who you’d bet would never mess up again come back to face the Judge yet another time for something like testing positive for alcohol while on probation.

297059-wile-e-coyote-218x300There are actually 2 realities at work here: first, that a pretty regular (albeit small) segment of people will be charged with violating probation somewhere along the way, and second, that vast majority of probation violations arise because the person has, in fact, screwed up

This is important, because too many lawyers are hesitant to address this head on, and instead talk like probation violations are almost always based on false accusations. Sure, there are times when a person is wrongly accused of violating (for things like a “dilute” urine screen that wasn’t intentional, but the result is treated as if it’s positive), but most of the time, the reason for a probation violation isn’t in dispute, like when a person misses a test, or gets caught drinking or smoking weed. In these situations, the thing you need most is a lawyer who can save your a$$ and talk the Judge out of locking you up.

The underlying idea for this article came from Ann, my senior assistant, as we were discussing a case where someone had violated the terms of either their ignition interlock or probation by drinking. Although I can’t recall which it was, I had Ann send me an email using the exact phrase she used in expressing her own frustration at the time – “when has NOT drinking ever screwed you up?” – and waited for the right time to use it in an article. My practice is concentrated in DUI cases pending in Oakland, Macomb and Wayne Counties and Michigan driver’s license restoration and clearance appeals for people who live anywhere in Michigan, or who have relocated to some other state. As such, I deal with fallout from people drinking alcohol all day and every day. In this article, I hope to give someone who is in any kind of legal trouble where they should not be drinking a reason to pause and think twice before doing so.

3010-267x300The consumption of alcohol leads to a lot of problems for some folks. To be sure, most people never run into legal issues as a result of drinking. If they do its something like an MIP as a kid, or maybe a DUI as an adult, but they learn their lesson and never get into trouble again. Yet for all of those who either never get in trouble or who get past one unfortunate incident involving alcohol, there are plenty enough who seem to keep drinking despite the fact that they keep getting into trouble for it. This kind of self-defeating behavior is clear in repeat offense DUI cases, but it also is there, if not so obviously, in probation violation and ignition interlock violation cases where someone gets caught after having consumed alcohol when they shouldn’t have. As I noted in the previous installment, the problem with articles like this is that most people usually find them after the fact, when they’re already in trouble. Even if that’s the case here, I want to give the reader something to think about so that he or she can resolve to not make the same mistake again.

The majority of probation violations, especially in DUI cases, occur because someone tests positive for alcohol. This is really the crux of what Ann meant; when someone keeps getting in trouble for drinking, it might be time to take a break and ask, “when has NOT drinking ever screwed me up?” Although many probation violation and ignition interlock violation cases share the same cause – drinking – everything else about them is different. In DUI cases, I make my living in court keeping my clients out of jail, even after they’ve violated probation by drinking when they were forbidden by a Judge’s order from doing so. As we’ll see, things are a lot different, and, yes, even worse, if someone drinks alcohol and winds up with an ignition interlock violation brought by the Michigan Secretary of State, because it means losing your license all over again. For good. Let’s start there first, and get to probation violations in the latter part of this article.

Possession or use of marijuana is still a criminal offense in Michigan unless you have a medical marijuana card. This article will focus on possession charges for those without medical marijuana cards; there are plenty of lawyers who concentrate in the medical and business end of “cannabis law.” I’m not one of them. My goal here is to focus on the person caught smoking or otherwise in possession of weed intended only for recreational use. The writing is on the wall with respect to marijuana, and sometime in the not-too-distant future, recreational pot will certainly be legal, but it’s not as of now, and you’ve probably found this article because you’re facing a possession charge. Beyond the legalities involved, which aren’t really all that complicated, I want to direct our attention to how these cases are typically viewed by the courts.

1_nl-um_SLMmHSEFgQ4T08Kw-300x185This is probably the most important perspective to consider, although it’s overlooked by just about everyone (including lawyers) when writing anything about marijuana and the law. At the end of the day, recreational marijuana is still an illegal drug. If you’ve been charged with a crime involving it, your lawyer had better understand how the Judge in your case views these things. I make my living in the courts of Metro-Detroit, meaning all the district and circuit courts of Oakland, Macomb and Wayne Counties. I don’t know of any Judge who is “for” pot, or otherwise supports the legalization of marijuana for recreational use.

In fact, compared to someone caught smoking weed in a car, most Judges are pretty conservative people. That’s not to say they didn’t live a little, or have some fun when they were younger. Nor, by the way, am I implying that there is anything wrong with anyone who ever did or still does use marijuana recreationally. The point I’m making here is that there is a pretty big difference in attitude and outlook between a person found with a bag of weed on his or her person and the Judge, sitting in a courtroom, who will be presiding over his or her possession charge. Some Judges are way more conservative than others, and view marijuana as just one of many dangerous and illegal drugs. It’s very important to realize that not understanding this perspective as an integral part of handling a possession case means a lawyer is ill-equipped to do so.