Articles Posted in Drug Crimes

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.

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.

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.

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.

In part 1 of this article, I began my examination of the role of alcohol and substance abuse related issues in Michigan criminal, DUI and driver’s license restoration cases, and how my specialized background, which includes having completed a post-graduate program of addictions studies, makes my office different.  I pointed out that I balance my overriding mission to help people at all phases of their relationship to substances, but to never become “preachy” or seemingly fixated.  We looked at how alcohol and drug issues are interwoven into the vast majority of criminal cases, and of course, all DUI charges and possession cases.  I cautioned that, as much as I want to help people recognize and deal with substance abuse related issues, there are plenty of situations where I use my clinical knowledge to prevent a person from being perceived as having an alcohol or drug problem they don’t.  This is especially relevant in 1st offense DUI cases, where a drunk driving incident that just happens runs up against the court’s inherent “alcohol bias.”  In this second installment, we’ll turn our focus more to recovery, and how a deep knowledge of recovery and recovery processes is important to the win I guarantee in every driver’s license restoration case I take, and how all of these considerations kind of coalesce in criminal cases.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2017/01/drug-addiction-spiritual-recovery-1.1-289x300.jpgIn the context of a Michigan driver’s license restoration case, understanding recovery is everything.  A person must prove his or her case by what is called “clear and convincing evidence” (this is a high standard of proof; think of it as requiring, in part, that after the evidence in a case is presented, the hearing officer deciding it will not be left with any lingering or unanswered questions).  There are 2 primary things a person must show:  First, the person must demonstrate that his or her alcohol (and/or substance abuse) problem is “under control,” meaning that he or she can fix a sobriety date (this doesn’t have to be an exact date; someone might say, for example, “early fall of 2009,” or something like that), and second, that his or her alcohol (and/or substance abuse) problem is “likely to remain under control.”  This means that the person can show that he or she is a safe bet to never drink (and/or use) again, and has cultivated the commitment and the tools to remain sober.  This is complicated stuff, as anyone who has tried a license appeal before and lost knows all too well, particularly if the person was genuinely sober.

That I really understand recovery from the inside-out, the outside-in, and from all the clinical perspectives, as well, provides me with a huge advantage as a license restoration lawyer.  So much so, in fact, that I guarantee to win every case I take.  The catch?  I will only take a case for someone who is truly sober.  As far as I know, I’m the only lawyer who writes anything at all about sobriety, and I am completely certain that amongst every other lawyer out there, I have written more about sobriety than all of them combined – and HUNDREDS of times over, at that.  The job of the Michigan Secretary of State Administrative Hearing Section (AHS) hearing officers is more or less to “test” whether a person is sober or not, and they are very knowledgeable and do their best to examine the clinical information provided in a license appeal case through the lens of the legal requirements that must be met in order to win.  It is the lawyer’s job to make sure that the clinical evidence submitted meets those legal standards.  That task is a HELL of a lot easier when, as the lawyer, I fully grasp the clinical and practical realities involved in getting sober.  For everything that could be said here, the bottom line is this:  If you’re sober, then you know that sobriety is a journey, and not a destination.

The other day, my paralegal, Ashlee, told me of a conversation he had with a caller who had gotten into trouble because of a relapse after having been clean and sober for a number of years.  She smiled as she recalled telling the caller, “Well, you certainly called the right place with us because we kind of specialize in substance abuse matters.”  I nodded in agreement, but as I began to think about it later, realized how accurate Ashlee’s statement really was.  Every single day, for almost all of the day, my staff and I deal with issues related to drinking and drugs in criminal, DUI and driver’s license restoration cases.  These issues are so central to what I do (more on that in a bit) that a number of years ago, I returned to the University campus (no online classes for me) and completed a post-graduate program of addiction studies.  Between handling DUI cases and driver’s license restoration appeals, issues directly related to the development, diagnosis, treatment of and recovery from alcohol and/or drug use disorders are at the core of everything I do.  In this 2-part article, I want to look at the critical importance of understanding substance abuse issues in the context of DUI (OWI) and driver’s license restoration cases, and in certain other criminal cases, as well.

In a 1st offense DUI case, for example, I use my clinical https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2017/01/SA1.1.jpgtraining to prevent a person who does not have a drinking problem from getting caught up in the court system’s inherent “alcohol bias” and wind up being treated like he or she does.  This means I work to prevent them from getting ordered into unnecessary substance abuse counseling, education and/or treatment.  By contrast, when a person with a 2nd offense DUI tries to explain, as many 2nd offenders do, that no matter how bad things look and how much the court system will “think so,” he or she doesn’t have a drinking problem, I have to make clear that, by law, that every 2nd offender is required to complete some kind of counseling.  I must also make clear that, clinically speaking, no matter how much the person does or does not drink, just by their record alone, there is obviously some kind of risky relationship to alcohol.  I have to help my client see that, at this point, labels don’t really matter anymore.  I deal with it all, from 1st time DUI offenders who quite obviously have a serious drinking problem to 2nd offenders who do not, and really are just unlucky, The same holds true for certain criminal charges, and particularly drug and even marijuana possession cases.

The court system is not (and does not have the resources to be) very nuanced or subtle about a person’s relationship to alcohol, operating instead from the position that, if you’re facing a DUI, you probably have some kind of drinking problem.  Lawyers typically line up to make their money by agreeing with and never challenging a client who say, “not me.”  From a business point of view, the customer is always right, so if a client with multiple prior DUI’s calls in and is looking for a lawyer who will echo that he or she doesn’t have problem, it’s a temptation that’s hard for many to resist.  After all, money talks and BS walks, right?  On the flip side, however, nobody really wants to hire some lawyer who thinks he or she is Ms. Sobriety or Mr. Rehab, either, and won’t fight to protect them.  Where, then, is the balance?  I think it’s fair to say that if we are going to be honest here, we need to acknowledge that a lot of the trouble people get into, especially those that result in DUI, criminal or drug possession charges, are the result of poor decisions made after drinking or using.  Imagine if you asked a law-abiding, non-drug using person, “Would you mind keeping these  Vicodin pills (or this cocaine, or whatever) in your pocket while as we drive around?”  They’d look at you like your nuts – but to a drug user, having them in their pocket as they travel around in a car doesn’t seem like such a stupid idea.  The point I’m making is that the court system doesn’t have it completely wrong about alcohol and drug problems and how they “ride in” with various cases, but that same system doesn’t always get it right, either.  Not every DUI driver has a drinking problem.  The lawyer must find the right balance between these seemingly competing positions in order to produce the best outcome possible for the client.  Here’s what I mean…

In part 2 of this article, we continued our inquiry into probation violation cases in Michigan criminal and DUI cases.  In particular, we tried to see how the whole violation thing is perceived by the Judge who sentenced you for a drunk driving offense or something like a drug (including marijuana) crime.  We also noted that although positive test results are the most common reason for being violated, missed tests come in a reasonable close second, with false-positive results a distant third.  Here, in our 3rd and final part, we’ll go into the courtroom itself and see how it is proven that a person has violated his or her probation and how that plays out in front of the Judge.

Decorative Scales of Justice in the CourtroomUp to this point, we’ve looked at the 3 most common reasons that give rise to a probation violation:  A positive result, a missed test, and a false-positive result.  Now, let’s look at how these are handled in court and what must be shown to prove that there was, in fact, a violation.  That “showing” is technically called the “standard of proof.”  Everyone knows that if you’re accused of a crime and go to trial, the prosecutor must prove your guilt beyond a reasonable doubt.  A probation violation is proven by a much lower standard, called a “preponderance of the evidence.”  The most common way this is explained is to imagine the scales of justice sitting even, or level.  As soon as you put something on one tray, it goes down and the empty side goes up.  Now, if you put something of equal weight in the other tray, the scales go back to even and level.  If you put something that weighs just a little more on one side than you do on the other, then the heavier side falls farther down, and the lighter side remains higher.  Surely you get this.  A preponderance of the evidence means just enough evidence to tip the scales from being exactly even, one way or the other.

Let’s consider an example:  Assume that Sneaking Sam has missed a test.  Now, picture the Judge on the bench, with the scales of justice next to her, and they’re level (even).  She looks at Sam and says, “I have a notice that you missed a test last week, Sam.” She then grabs a 5-pound weight and puts it on one of the scales, causing it to tip.  So far, the preponderance of the evidence weighs in favor of Sam having missed his test.  Next, the Judge asks what Sam has to say, and his lawyer explains that Sam’s boss called him in early the day of the missed test because there had been a flood at the workplace, and hands up a letter from the boss to that effect.  The lawyer also offers up a make-up EtG test taken the next day.  The Judge then takes a 2-pound weight for the letter and a 2-pound weight for the make-up test and puts them on the other scale, causing the missed test side to rise.  Still, the scale hangs a bit lower on the side of the missed test.  That’s because the preponderance (think of it as the majority) of the evidence supports the idea that Sam did, in fact, miss his test.  Sure, he has a relatively good reason for doing so and it’s true that he has a clean make-up test, but in terms of the simple allegation that he missed the test, Sam’s evidence does not outweigh that on the “missed” side.

In part 1 of this article about Michigan probation violations, specifically in the Detroit-area district and circuit courts of Wayne, Oakland and Macomb Counties, we began examining what happens when a person who is on probation for a criminal or DUI case either tests positive or misses a test altogether.  I pointed out that to the Judge, a violation of his or her order to not drink (and/or not use drugs) by either a positive or missed test can feel like either getting the middle finger from the person to whom a break was given.  The only other alternative to “screw you, Judge,” is that the person is suffering from an overwhelming and irresistible compulsion to drink (or smoke weed or whatever).  As we noted, however it plays out, a missed or positive test does not look good.  I certainly understand that people who do have a drink (and get caught) are not, for the most part, trying to “flip off” the Judge, nor are they caving into cravings of some sort, but rather just want to be normal, like everyone else.  An order to not drink, however, must also be seen as a part of one’s punishment for the original offense, and a missed test, even if it is followed by a clean make-up test (or there is a “good” explanation for missing the test) is a violation of the requirement that a person test when directed, on the schedule ordered, and not one that is “convenient.”  In other words, part of the penalty for a criminal or DUI conviction is that you don’t get to act normal by enjoying an adult beverage.  At the end of part 1, we were, figuratively speaking, standing in front of the Judge who was wondering if a person tested positive because he or she is hell-bent on NOT following the rules or is otherwise unable to cope with his or her urges to drink (or use drugs).  We concluded by pointing out that it’s that very spot where most people really get a sense of how bad their situation looks, and asking what can be said or done to make it better.

Plan-or-Growth 2.0There is no simple, one-size-fits-all answer to that question.  And to be perfectly honest, some Judges are “easier” than others.  You can call them more forgiving, lenient or understanding, but the plain fact is that there are some Judges who won’t really have much interest in your side of things if you test positive, and I can think of at least one Judge who will have about ZERO interest in anything you have to say once you’re caught drinking or smoking weed while on probation.  In that sense, as you look for a lawyer, you need to find one who really knows the Judge or Judges in the court where your violation is pending.  For example, that Judge who would probably have the least interest in anything you have to say is also (not surprisingly) rather short on patience, so it would not be a good tactic to go in there with an attorney who will drone on and on about kinds of stuff she DOESN’T want to hear.  Any chance to change her mind needs to come right out of the gate, not after torturing her by babbling on and on….

As we noted above, the goal in a probation violation case is to convince the Judge that you neither callously disregarded his or her orders to not drink (or use anything else) nor do you have an underlying problem with urges too strong to resist.  Of course, everyone’s first strategy is to say that very thing.  Part of the problem with such a plan is that, almost without exception, everyone does and says that same thing.  Over the course of my 26 years, I have read, quite literally, thousands of DUI police reports.  Ask any DUI lawyer or any police officer what people say when the officer asks if the person has been drinking, and you’ll learn that far and away, everyone gives about the same answer; “2 beers,” “2 drinks,” or “a couple of drinks.”  No one replies, “Hell yeah; officer, I drank a lot, and man, am I am really drunk right now!”  Likewise, everyone who stands before the Judge for drinking while on probation says that he or she didn’t mean any disrespect nor do they have drinking problem.  So if that’s not going to fix things, what do you do?

As a Michigan criminal defense and DUI lawyer, I get called upon to handle a lot of probation violation cases.  In fact, it’s quite likely that if you’re reading this, you or someone you care about is facing one.  In this article, I want to take a real-world look at the 2 most common reasons people wind up getting violated:  A positive urine or breath test result or a missed test for alcohol and/or drugs.  Sure, there are plenty of other ways that people violate an order of probation, and much of what we’ll look at here applies equally in those situations, but most of the calls I get follow a positive result or a missed test.  I want this installment to be candid and conversational, as if you were sitting in my office and we were speaking across my conference room table.  I’m sure that you’ve already come across plenty of lawyers with catchphrases about your freedom, your future, and/or control over your life, or who focus on how tough and aggressive they are.  By now, you’ve probably grown weary of all that, so we’ll change focus and use this article to examine how probation violations play out in real life, and how I handle them.  This article will be divided into 3 installments, and will really explore the goings-on in a probation violation case.

27777764-fresh-we-need-to-talk-symbol-background-with-space-for-own-text-Stock-Photo-300x300We’ll start by looking at the hard truth that a lot of people (including lawyers) want to dance around, rather than face head-on:  When you’re caught giving a positive test result, the first impression is either that you’re giving the finger to the Judge or you have a real problem with alcohol and/or drugsProbation is a break; an opportunity to stay out of jail by, amongst other things, showing up for all required tests and then passing them.  Of course the job of your lawyer in a probation violation case is to get the Judge to see what happened as being neither a disregard of his or her order nor as proof that you have some irresistible compulsion to drink or get high, and for everything else that can be said, this is the real crux of the matter.  It should be pointed out that although most Detroit-area courts use the term “probation violation,” some others call it a “VOP,” meaning violation of probation, or a “show cause,” which is a hearing that requires you to go before the judge and show cause (a good reason) why you shouldn’t be held in violation.  Whatever it’s called, it’s all the same thing.

We should also note, at the outset, that good reasons do exist for having missed a test, and that false-positive results do happen.  Sometimes, the simple truth is that a person misses a test because he or she forgot, or got real busy, or had to go to work, but was not to avoid a positive result.  In a perfect world, when that happens, a person will be timely notified of a positive result and have an opportunity to retest.  In the real world, however, it often works out that by the time a person learns he or she has failed a test, it’s too late to do anything about it.  Sometimes, a test result is wrong, but when a positive result is correct, meaning you did, if fact drink (or use drugs), you need the kind of lawyer who is a persuader, and who can explain things clearly.  In other words, if the positive test result is correct, it couldn’t matter less if your lawyer has a Nobel Prize in chemistry; that’s not going to make things better in front of the Judge.  Instead, you need to convince the Judge to not put you in jail or otherwise hammer you.  At the end of the day, while some cases do involve false-positive results, most arise because you simply got caught, and here, you need to go into full damage-control mode.  Let’s examine, in turn, positive test results (when you did drink or use), false-positive results, missed tests, and what has to be shown for you to be found guilty of a probation violation and how that all goes down in court.