Articles Posted in Criminal Cases

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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?

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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.

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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.

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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.

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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.

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Possession or use of marijuana is still a criminal offense in Michigan unless you have a medical marijuana card. [Author’s note: as of November, 2018, the ballot initiative to legalize marijuana has passed.  HOWEVER, until a law is crafted by the legislature and takes effect, possession of marijuana remains illegal for those without 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.

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The previous article focused on positive alcohol test results, particularly within the context of bond and probation violations. The focus there was more on the results (and drinking) rather than the violation. In this installment, I want to focus more specifically on handling bond and probation violation cases. While most bond violations occur because a person tests positive after drinking, our examination here will be broader, and applies to anything that is a violation, rather than just positive alcohol (and even drug) tests. If you’re facing a violation, the only person who can really help you is a lawyer, but most of the time, legal acumen, by itself, is far from enough, and the best way to resolve these matters requires a skillful blending of charisma, experience and speaking ability. In other words, you need a lawyer who can charm the snake right back into the basket.

Second_Chance-300x281We could get detoured forever just trying to list the many reasons someone is called in for a violation. Of course, it’s mostly for either missing a test or testing positive for alcohol and/or drugs, but the larger point is that whatever the reason, it’s a violation for either doing something you shouldn’t have, or not doing something you were supposed to do. We begin with the certain knowledge that your Judge, whoever he or she may be, is not pleased with you. You’re in trouble – again – and you have pretty much forfeit most, if not all, of the Judge’s patience and understanding. I don’t say this to scare the reader (I hate any kind of fear-based marketing), but rather because you almost certainly already know this; you feel it, and for all the good that can be done, it’s bone-headed to not at least recognize the position from where you start.

Another detour I want to avoid in this article is a potentially endless examination of all the reasons why a person may be innocent of a violation. For the most part, except for things like a dilute urine sample or a false-positive result, the overwhelming majority of people look for a lawyer in this situation because they did, in fact, violate some term of their bond or probation. Even missing a test for a good reason is still a violation. Thus, we’ll mostly be examining those situations where you have to go back in front of the Judge, to put it bluntly, because you screwed up. This is why I hinted, in the first paragraph, that all the legal skill in the world isn’t much help when you’re back before the Judge for either doing something you were ordered not to do, or for not having done what was required of you.

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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 cases will be going up, as will a few others. 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.

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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.

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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.

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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,

A 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.

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