Public Policy Reasons Make it Difficult to Get Domestic Violence Cases Dismissed

February 20, 2015,

IMAGE Criminal_justice_system1.jpg

This blog is long overdue. In this blog I will attempt to explain the reasons that make it so difficult to get a domestic violence dropped or dismissed.

The Prosecutor Represents the People of Michigan or Municipality Where the Offense Occurred

First of all, it is important to understand that once a criminal case is pursued, the prosecutor represents the people or public at large for a specific jurisdiction. County Prosecutors have authority to pursue criminal cases on behalf of the "People of Michigan". City or township prosecutors have authority to prosecute those that are accused of committing ordinance violations within their jurisdiction. Federal criminal cases are prosecuted by the District Attorney's Office. For this reason, the court title of any criminal case is:

• People of Michigan (plaintiff) vs. John Doe (defendant), or,
• People of Shelby Township (plaintiff) vs. John Doe (defendant), or,
• People of the City of Sterling Heights (plaintiff) vs. John Doe (defendant).
• For Federal cases: United States of America (plaintiff) vs. John Doe (defendant)

Every criminal case is pursued on behalf of the people within that jurisdiction by the appropriate prosecuting official or city attorney hired by a municipality or township. The victim of a criminal case is not named as the plaintiff or a party to the case. The victim is named as a witness and later can be subpoenaed as a witness to testify against a defendant in a case which is being pursued on behalf of the people.

Why Won't the Prosecutor Dismiss a Domestic Violence Case When the Victim Wants it Dropped

As I stated in another article, the party pressing domestic violence charges may immediately have regrets and want to get it dropped. Since most domestic violence cases start out with a frantic 911 call when tempers are flaring, the person making the call rarely knows or understands the ramifications to the other party until later. A domestic violence conviction can label the victim's spouse or significant other as a violent person which triggers legal entanglements and loss of valuable rights (inability to get a concealed weapons permit, inability to travel across international border to Canada). Unfortunately, getting the case dropped is not easy.

The policy to prosecute those accused of domestic violence/assault is something that has evolved over many years. In my opinion, the issue of domestic violence/assault became a national issue following the Michigan case of People of Michigan vs. Francine Hughes. Ms Hughes was charged with murder after setting her ex-husband's bedroom on fire in 1977. Her attorney argued self-defense. The jury, who was moved by her circumstances as a battered spouse and the victim of physical violence for several years, found her not guilty. In 1984, the case was profiled in a movie, "The Burning Bed", starring Farrah Fawcett, which is credited as being influential in the way domestic violence cases are handled.

Now, public policy is a strong factor in the prosecution of domestic violence cases. There are several governmental agencies involved in the criminal process when someone is charged with domestic violence/assault. The government agencies that I am referring to are the police, prosecutor and the judge. Behind the scenes, the government also employs victim's rights advocates and probation officers. The victim's rights advocate becomes involved immediately to promote the rights of the victim during a pending criminal case. The probation department becomes involved to make sentence recommendations and monitor a defendant after a guilty plea or verdict. All of these government agencies are usally located within the same building or government complex. All of these government agencies, with the exception of the court, are aligned on the side of law enforcement/prosecution; not on the side of the accused.

The Role of the Police in Domestic Violence/Assault Cases
Let's talk about the role of the police, or first responders, to a domestic violence call. Long gone are the days when the police made a domestic call to a residence and let the alleged perpetrator go to the corner bar to cool off. The police can no longer make judgment calls as to who is right and who is wrong when they investigate domestic violence cases. Once an allegation of an assault is made (any intentional touching of another without consent), an arrest will occur. There is no such thing anymore as getting the case dropped on the spot. The reason for this attitude is based upon several valid grounds. First of all, the function of the police is to investigate and report their findings to the prosecutor, not determine guilt or innocence. Second of all, the police fear that a serious injury or death may occur should they fail to take action by removing the alleged suspect from the premises. Lastly, the police face serious criticism and potential liability if they fail to act and a party is later injured or killed. Therefore, public policy favors an arrest and issuance of a "no contact order" as an interim bond condition.

The Role of the Prosecutor
The police take their investigative report to the prosecutor for review. It is the prosecutor that authorizes the criminal case against the accused party. The county prosecutors in Michigan are elected officials. As an elected official, it is in their best interest to show the public that they are tough on crime. Again, the public can be critical in situations when a prosecutor is weak on crime or easily drops cases. For this reason, prosecutors will object to a dismissal motion by defense counsel when a victim a victim fails to appear in court. Some prosecutors will go to great lengths to track down an uncooperative victim. Like the police, the prosecutor's office needs to avoid scandal and any scenario where someone is injured or killed because of a failure of the system to protect the public. Upon authorizing criminal charges, the case is turned over to the court system for criminal legal proceedings. Misdemeanor domestic violence/assault cases are handled in the district courts.

The Role of the Judge and Court
Once a case is in the court system, a judge is assigned to the case. Judges, like prosecutors, are elected officials in the State of Michigan. The judge's role in a criminal case is to keep order, control the proceedings make rulings on evidence and answer motions or requests by the parties. In theory, a judge is impartial and does not concern himself or herself with the dispute between the parties. In some cases, a defendant may want the judge to act as the trier of fact without a jury. This is called a waiver trial or bench trial. This would empower the judge, acting alone, to render a verdict of guilty or not guilty. However, a person charged with a crime may not have a choice in the matter because either the prosecutor or judge may force a jury trial even when a defendant is willing to waive the same. In my opinion, judges tend to favor jury trials in cases with strong public policy, the presence of the media or where a certain verdict (by a judge without a jury) could subject the court to disapproval.

The Role of a Lawyer in Domestic Violence Cases

If you have been following along, then you should realize:

The police pass the case up to the prosecuting attorney. The prosecuting attorney then passes the case up to the court. The victim's right advocate is a watchdog and acts as a voice for the victim. The court can decline to accept the role as the trier of fact the case and pass the case along to a jury. Nobody knows what a jury will decide. Should a defendant plead guilty or be found guilty, the court passes the case to the probation department.

The scales of justice are heavily weighted in favor of the prosecution in criminal proceedings. Police, prosecutors and judges want to avoid censure, avoid liability and remain popular in the eyes of the public. The people that are selected for a jury trial are not always who you think they are. If this sounds overwhelming and scary, it should. Only an experienced attorney can navigate someone in the criminal justice system and hope for a favorable outcome. A seasoned criminal defense lawyer knows when to work with the system, not against it. For starters, you may need answers to one or more of the following questions:

  • Can a no-contact order be lifted?
  • Can a domestic violence/assault case be dismissed without trial?
  • What happens if the victim in a domestic violence/assault case wants it dismissed?
  • What happens if the victim in a domestic violence/assault case fails to appear for trial?
  • Can I argue that I acted in self-defense in a domestic violence/assault trial?
  • Why am I charged with domestic violence/assault if I was only trying to avoid a fight?
  • Will the victim be charged with a crime if he or she changes the story?
  • *Will the victim be charged with contempt of court if he or she fails to obey a court notice or subpoena?
  • Can the victim file a supplemental report with the police or prosecutor?
  • What does it mean when a criminal case is dismissed without prejudice?
  • What does it mean when a criminal case is dismissed with prejudice?

*It is unethical for an attorney to advise anyone to ignore a court notice or subpoena.

We have written extensively about domestic violence cases and cannot go into detail answering all of the above questions without being repetitious with respect to other articles and blogs on the subject. Please browse through our blogs and articles which discuss various topics in relation to assault and domestic/violence assault crimes:

How Am I Being Charged With Domestic Violence / Assault When I Acted In Self-Defense?

Can I be charged with a crime if only one person says I did it and there are no other witnesses or evidence (commonly called "he said/she said" cases)?

Imposition of No Contact Orders for Persons Charged with Michigan Criminal Offenses; Assault, Stalking, Domestic Violence

When a Misdemeanor Assault or Domestic Violence Case Escalates to a Felony

Part 1: Domestic Violence Cases in Macomb and Oakland County, Michigan, Investigation, Arrest and Statements by the Accused

Part 2: Domestic Violence Cases in Macomb and Oakland County, No-Contact Orders, Dismissals for First Offenders

Part 3: Domestic Violence Cases in Macomb and Oakland County; Court Process, Victim Failing to Appear in Court, Victim Providing a Contrary Statement

When a Misdemeanor Assault or Domestic Violence Case Escalates to a Felony Charge

February 20, 2015,

IMAGE assault-with-a-deadly-weapon.jpg

ABC's of Assault and Domestic Violence Cases

In Michigan, the crimes of "assault and battery" or "domestic violence/assault" are classified as misdemeanor offenses, or minor criminal offenses. The offense of "assault and battery" means that the defendant made intentional (non-accidental) physical contact with another person and without consent to do so. Any touching of the other party, however slight, is sufficient to constitute an assault and battery. Domestic violence/assault is charged when a close relationship exists between the parties. Some of the cases that we see involve minimal physical contact or physical contact for a specific purpose or intent other than to cause harm. For example:

-Taking the car keys or other property from another person.
-Jostling the other party to escape from a volatile environment
-Making physical contact with the instigating party while trying to avoid confrontation.
-Trying to defend oneself from another person (self-defense).
-Restraining another person from causing physical harm to others or to himself/herself.
-Restraining another person from causing physical damage to property.

We have seen every single one of the above scenarios result in criminal charges.

Assault or Domestic Violence Case Don't Go Away Once they are in the System

The class of assault crimes that involve close relationships, particularly domestic violence cases, rarely involve extreme circumstances or injuries. In a large percentage of these cases, the party who made the 911 call has regrets and may want to drop the charges. When this is the case, the alleged victim may claim that the incident was a misunderstanding or that the police did not report it accurately. However, once an arrest is made and a criminal file is officially in the "system", it is not easily dismissed. The system consists of several governmental organizations (police, prosecutor, court, victim's rights advocate, probation department) that are required to follow protocol in the handling of a criminal case. The police pass the case off to the prosecutor and prosecutor passes it off to the courts. In another blog, I explain why it is so hard to get domestic violence/assault cases dropped.

Most Domestic Violence/Assault Cases Begin with a 911 Call to the Police

It merely takes a 911 call to the police that can be the start of an agonizing legal process. After the 911 call, the police are summoned to go to the location of the alleged crime. The police are prepared to deal with parties that may be under the influence of alcohol/drugs and in a frantic emotional state of mind. Once present, they begin their investigation by separating the parties. The alleged victim will be examined for any possible injuries and the need for medical attention. Any injuries, however slight, such as red marks, bruises, cuts or the presence of blood, will be noted and photographed as possible future evidence. As I said, the police will separate the parties to gain order at the alleged crime scene, defuse the episode and to take statements from the parties. Keeping the parties at a distance makes it harder for them to fabricate statements. The police will attempt to get an admission/confession from the suspect confirming that physical contact was made upon the alleged victim. The victim is also given an opportunity to explain the incident. First the police like to obtain an oral statement. Then the police will ask the victim to provide a consistent written statement. An angry spouse or ex may introduce extraneous details in the statement which may not be completely honest or don't tell the whole story. Any aspects of self-defense are often left out when a victim talks to the police. Unfortunately, missing details, embellishments or untruthful statements to the police may be enough to escalate a simple assault or domestic violence from a misdemeanor to a serious felony.

Felony Assault Crimes in Michigan

Let me start out by providing an example of recent felony related assault case which was handled by our firm in Macomb County:

Example: Our client said that his wife was blocking his attempt to leave the house after an argument ensued. She suffered a bloody nose in the process when he was trying to restrain and calm her down. She called 911 and told the police that it looked like a murder scene in her kitchen and that there was blood everywhere. The police photos showed blood on her face and on the floor which made the situation look more egregious. She said she was strangled by her spouse. She never obtained medical attention. The police arrested our client and the prosecutor charged our client with a felony that could carry up to ten (10) years in prison, assault with intent to strangle or suffocate.

The above example is one of many possible ways that actual or alleged assaultive conduct can result in a felony charge. The following is a list of assault related offenses in Michigan that may be charged in the context of a domestic altercation as a felony:

Assault with a deadly weapon (gun, knife, chair, bottle, phone)
Assault with intent to commit sexual contact
Domestic violence/assault 3rd offense
Assault with intent to maim
Assault with intent to commit sexual penetration
Assault with intent to do great bodily harm
Assault by strangulation or suffocation
Assault with intent to murder
Assault against a pregnant individual causing miscarriage

The maximum penalties for the above listed felony cases range from 4 years up to life in prison. The above offenses are linked to the appropriate Michigan statutes for further information about the offenses and related criminal penalties. Sentencing for felonies is governed by the Michigan Sentence Guidelines.

A Few Words about Felony Assault with a Dangerous Weapon

The offense of assault with a dangerous weapon is charged more often than any of the other felony assault related charges. The offense, assault with a dangerous weapon (ADW or felony assault), does not require any physical contact. In addition, the offense does not require the use of a conventional weapon such as a gun or knife. Michigan Criminal Jury Instruction, 17.10, defines how a jury is required to determine whether an instrument is a dangerous weapon:

A dangerous weapon is any object that is used in a way that is likely to cause serious physical injury or death. Some objects, such as guns or bombs, are dangerous because they are specifically designed to be dangerous. Other objects are designed for peaceful purposes but may be used as dangerous weapons. The way an object is used or intended to be used in an assault determines whether or not it is a dangerous weapon. If an object is used in a way that is likely to cause serious physical injury or death, it is a dangerous weapon. You must decide from all of the facts and circumstances whether the evidence shows that the instrumentality in question here was a dangerous weapon.

In recent months, we have seen several domestic violence/assault cases charged as felony assault with a dangerous weapon. I cannot attribute this to anything in particular but feel that prosecutors are becoming more aggressive to authorize a felony charge even when the facts are not compelling and the victim does not want to prosecute. Fortunately, there are legal means to get a case under control.

Please browse through our blogs and articles which discuss various topics in relation to assault and domestic/violence assault crimes:

Public Policy Reasons Make it Difficult to Get Domestic Violence Cases Dismissed

How Am I Being Charged With Domestic Violence / Assault When I Acted In Self-Defense?

Can I be charged with a crime if only one person says I did it and there are no other witnesses or evidence (commonly called "he said/she said" cases)?

Imposition of No Contact Orders for Persons Charged with Michigan Criminal Offenses; Assault, Stalking, Domestic Violence

Part 1: Domestic Violence Cases in Macomb and Oakland County, Michigan, Investigation, Arrest and Statements by the Accused

Part 2: Domestic Violence Cases in Macomb and Oakland County, No-Contact Orders, Dismissals for First Offenders

Part 3: Domestic Violence Cases in Macomb and Oakland County; Court Process, Victim Failing to Appear in Court, Victim Providing a Contrary Statement

A Criminal Defense Lawyer's Perspective of Michigan Victim's Rights Laws: Has the pendulum swung too far?

January 9, 2015,


When a person commits a crime that involves a victim, a number of laws apply that provide the victim with several rights. Some of these rights allow for the victim to collect restitution, speak at sentencing, be afforded a victim's rights advocate and confer with the prosecutor. In every respect, these are important rights.

Article 1, Section 24 of Michigan's Constitution
provides as follows:

Crime victims, as defined by law, shall have the following rights, as provided by law:

  • The right to be treated with fairness and respect for their dignity and privacy throughout the criminal justice process.
  • The right to timely disposition of the case following arrest of the accused.
  • The right to be reasonably protected from the accused throughout the criminal justice process.
  • The right to notification of court proceedings.
  • The right to attend trial and all other court proceedings the accused has the right to attend.
  • The right to confer with the prosecution.
  • The right to make a statement to the court at sentencing.
  • The right to restitution.
  • The right to information about the conviction, sentence, imprisonment, and release of the accused.

Michigan's Constitution gives powerful rights to a crime victim which can mean that a victim can block a plea agreement or have an impact on sentencing. Courts and prosecutors must abide by a rigid set of rules to include the victim in the criminal process and make an inquiry regarding the victim's losses or injuries. Some courts utilize a checklist to insure that the victim's rights are protected. In many cases, the victim can actually be sympathetic to the defense. It always helps when the victim does not obstruct the plea bargaining process and does not ask for jail or other unjustified harsh punishment at the time of sentencing.

However, as a criminal defense lawyer, it is far better to represent someone when a victim is not involved or when a victim does not take a position against the defense with respect to the plea bargain or sentence. The worse case scenario occurs when an alleged victim acts overly victimized, exaggerates a loss, requests inflated or spurious restitution or actually savors the drama of criminal court proceedings. In situations such as these, most judges know when a victim is seeking punishment that is cruel or is just taking advantage of the system. Unfortunately, some judges will give the victim too much latitude which makes the entire criminal process difficult for criminal defense lawyers.

a. is a good idea
b. is abused by victims
c. involves a flawed process
d. all of the above

Another vital tool that has been afforded to victims is the ability to request restitution at the time of sentencing and thereafter. A restitution hearing can be held to verify or contest a restitution claim. A person, business entity or third party (such as an insurance company), that suffers a loss because of the defendant's conduct can request restitution. Michigan's restitution statute and laws give the victim and the judge numerous powers including:

  • When sentencing a defendant, the court shall order defendant to make full restitution to any victim of defendant's course of conduct.
  • Court must not consider defendant's ability to pay.
  • Restitution may include any individual or entity that suffers direct physical or financial harm as a result of an offense. Insurance company as a victim.
  • Restitution may include any victims of the defendant's course of conduct even though the losses are not attributable to the factual foundation of the charge that resulted in the conviction.
  • A co-defendant or co-conspirator may be held jointly held liable for the entire amount of the loss.
  • A defendant who plead guilty to home invasion was properly ordered to pay restitution for damage caused by accomplices who caused a fire after defendant left the premises.
  • If conduct causes serious bodily injury, serious impairment of bodily function or death, court may order triple restitution.
  • Victim's loss may include prejudgment interest.

Restitution is commonly addressed at the time of sentencing. In my opinion, it is a flawed process because at the same time that the defendant is asking for a lenient sentence; the victim is asking for compensation. Whenever money is involved, most defendants that have the wherewithal will pay when they feel that it will appease a victim or save them from jail or prison. This usually means that the defendant usually consents to restitution which is rarely questioned by the prosecutor or judge assigned to the case. I have seen more than my fair share of abusive restitution claims where a victim is allowed to profit at the expense of a defendant who is facing incarceration.

Case 1: The victim was seeking restitution in a case where the defendant was charged with home invasion. The victim had old photographs of jewelry and recent appraisals based upon the old photographs to seek and obtain substantial restitution. She did not have any receipts or any recent documentation or photographs. In some of the photographs, she was wearing the jewelry but in others, she was not. There was no way to know whether she really ever owned the jewelry or the real value.

Case 2: A business entity claimed several thousands of dollars in accounting costs to investigate a defendant charged with embezzlement. There was no way to prove or disprove whether the accounting costs were actually necessary or just linked to this case.

Case 3: Co-defendants were convicted of taking equipment from a facility. The equipment was recovered. Although the equipment was old and in need of repair, the victim claimed and received in excess of $20,000.00 restitution for alleged damage to the equipment.

Civil Lawsuit or Criminal Restitution Hearing?

In my opinion, it was a far better system when a victim of a crime was required to file a civil lawsuit for damages arising out of a criminal offense. In civil lawsuits, the aspect of criminal punishment does not exist. A civil lawsuit is not based upon emotion, sympathy or the "hang em high" mentality that exists in criminal cases. A jury trial is permitted in civil proceedings and there is a process to establish or refute damages which includes depositions, discovery, expert witnesses and motion practice to refine the case. The prosecutor and victim rights advocate do not exist in the civil process and the judge does not have to placate a victim based upon the politics or media exposure which is more prevalent in criminal cases. The civil lawsuit, or civil process, is designed to require a party to prove a loss by verifiable evidence. Whereas, in the criminal arena judges and prosecutors may yield to the "get tough on crime" philosophy which may have an influence on decisions regarding restitution.

The criminal process is not designed to deal with restitution or damages claims efficiently and fairly. When a restitution claim is asserted, there is nobody in the criminal process that is likely to give credence to the defendant or cast aspersion on a victim.
Prosecutors and judges may raise their eyebrows when faced with incredulous restitution claims but neither will rarely put a victim's integrity in dispute. The odds are in favor of the victim since it is assumed the accused in the criminal process is lying and the victim must be telling the truth.

When confronted with restitution claims, we make recommendations to our clients on a case by case basis. There may be situations when we recommend settlement of an allegedly inflated restitution claim. Our recommendation may be based upon the economics or legal fees associated with a long drawn out restitution hearing. In addition, the payment of restitution, or making a victim whole, is often viewed favorably by the prosecutor and judge.

Computer Crimes: Peer to Peer (P2P) - File Sharing Risks on the Internet

January 8, 2015,


What does Peer to Peer (P2P) Mean?

File sharing sites on the internet allow the access of digital content from other computers connected on a peer to peer (P2P) network. A peer (personal computer user) may copy the contents such as videos, music, photographs or books of a peer (another personal computer).

Risks Associated with P2P Networks - File Sharing

Some of the risks associated with P2P file sharing are as follows:
• Exposing your hard disk to others
• Contracting computer viruses
• Infringing copyright
• Others using the P2P can obtain files from your computer's hard drive

Usually, many P2P file sharing programs have inferior security. This can pose a danger for all the contents stored in a hard disk which are exposed to other users. In addition, the computers of P2P users can contract computer viruses because file's are downloaded from an unknown source. P2P programs may also contain viruses and worms, which prevent users' computers from functioning properly.

Crimes Associated with File Sharing

The Federal Bureau of Investigation has issued warnings regarding the dangers of P2P activity. The warnings caution users regarding the potential threats of Peer-to-Peer networks, the legal consequences of copyright infringement, illegal pornography and computer hacking. Since P2P networks allow access to anyone, law enforcement agencies at both the federal and state level have become actively involved in searching out cyber criminals or those that may possess or distribute child pornography.

How Does Law Enforcement Know Someone is Involved in File Sharing on P2P Network?

Law enforcement officers conduct surveillance within P2P networks by searching databases for incriminating files. When a P2P user downloads a file, the program places it into a shared folder. In addition, the user may also provide files from a computer to the shared folder for others to obtain. The FBI has a program which allows it to see all of a user's shared files. The FBI will track an IP address of a computer and eventually obtain the owner's name and physical location from an Internet Service Provider (ISP). This is followed by a search warrant for computer equipment, electronic storage devices and any other material which may contain illegal content such as child pornography.

Child Porn: Worldwide Problem

A variety of laws contained within United States Code make it a federal crime to advertise, distribute (traffic), produce, transport, receive or possess child pornography. The internet has made child pornography more accessible than at any time in history. A recent study, Child Pornography on the Internet, provides an excellent resource regarding the problems associated with child pornography in the age of electronic transferring and digital imaging. Quoting from the article:

"It is difficult to be precise about the extent of Internet child pornography, but all of the available evidence points to it being a major and growing problem. At any one time there are estimated to be more than one million pornographic images of children on the Internet, with 200 new images posted daily. One offender arrested in the U.K. possessed 450,000 child pornography images. It has been reported that a single child pornography site received a million hits in a month. As noted above, one problem in estimating the number of sites is that many exist only for a brief period before they are shut down, and much of the trade in child pornography takes place at hidden levels of the Internet. It has been estimated that there are between 50,000 and 100,000 pedophiles involved in organized pornography rings around the world, and that one-third of these operate from the United States.

Macomb County Retail Fraud Update

November 28, 2014,

This is an updated article in our series about retail fraud cases which are handled extensively by our criminal defense lawyers in Macomb County. We have posted several other articles relating to retail fraud that are referenced at the end of this article.

Places/courts where retail fraud cases are prevalent

Retail fraud cases seem to be on the rise in every court where we appear. Retail fraud cases are always one of the most frequently charged misdemeanor offenses in the Macomb County District Courts. While every court in Macomb and Oakland County sees its fair share of retail fraud cases, the courts which are located in jurisdictions with shopping malls, mega strip centers and major shopping corridors have the greatest number of retail fraud cases on their dockets. A list of the courts that would fall in this category are as follows:

Retail fraud penalties: Prior record of offender may increase penalty

Retail fraud crimes can be charged as a felony or misdemeanor and are classified by the value of the property taken or whether the offender has a prior record. A prior record for larceny, false pretenses or a prior retail fraud may result in enhanced penalties.

Retail fraud usually involves the act of taking property from a retail establishment without paying for it. It may also involve attempting the change price tags or paying less than the actual price by some act to defraud the establishment. The degrees and penalties for retail fraud are as follows:

Retail fraud 1st Degree, felony: Value of property stolen: $1,000.00 or more
Maximum penalty: 5 years imprisonment and/or a fine of not more than $10,000.00 or 3 times the value of the difference in price or property stolen, whichever is greater.

Retail fraud 2nd Degree, misdemeanor: Value of property stolen: $200.00 to $999.99
Maximum penalty: 1 year in jail and/or a fine of not more than $2,000.00 or 3 times the value of the difference in price or property stolen, whichever is greater.

Retail fraud 3rd degree, misdemeanor: Value of property stolen: less than $200.00
Maximum penalty: 93 days in jail and/or a fine of not more than $500.00 or 3 times the value of the difference in price or property stolen, whichever is greater.

Some reasons that someone commits shoplifting or retail fraud

There are some reoccurring reasons as to "why" a person commits a retail fraud offense. Our clients are usually the kind of people that have never been in trouble and are faced with personal difficulties. However, shoplifting is not limited to those that are downtrodden and underprivileged. Some of our clients are well off or suffer from a compulsive shoplifting disorder. It is our job to work with our clients to understand why he or she engaged in risky behavior so that we can provide effective legal representation and solutions.

Financial distress: The number 1 reason that is given for committing retail fraud is because of family financial turmoil. In cases such as this, we find our clients taking things to maintain the household such as food, household goods and children's clothing. I attribute this to the meltdown of the economy which hit middle class families the hardest.

Impulsive behavior: Impulsive conduct, or acting before you think, is also high on the list of reasons that a person engages in the offense of retail fraud. Impulsive conduct is almost always tied to some other life problem or stressor which we try to identify. Impulsive behavior is more common with youthful offenders. However, impulsive behavior is also present when someone has a psychological disorder such as ADHD, anxiety disorder or recent stressful event such as a death, retirement or marital problems.

Prescription medications and drug addiction
: Prescription medications for psychological disorders can sometimes cause irrational behavior which leads to a person to commit retail fraud. In these cases, we recommend that our client get a current medical examination and consider engaging the services of a counselor. Drug addicts may commit retail fraud because of financial reasons or to resell goods to fund a drug habit. Again, getting as much background as possible and taking proactive measures before court can make a vast difference in the outcome of a case.

What to expect in the Macomb County District Courts

The outcome of a retail fraud case in the Macomb County Districts Courts will depend upon various factors including:

  • The prior criminal record of the offender.
  • The value of the property stolen can make a minor retail fraud offense into a felony.
  • The proactive measures taken by the offender prior to the first court date.
In a recent Wall Street Journal Article regarding misdemeanor offenses, Judge Thomas Boyd, who handles misdemeanor cases in Ingham County, Michigan, said "he sometimes finds himself arguing with defendants who seem too eager to admit wrongdoing without consulting a lawyer."

While retail fraud cases do not usually involve jail, they can be devastating on a person's permanent criminal record. A retail fraud offense can label an individual as a "thief" or "dishonest" person.

When a client has never been convicted of a crime, we may be able to advocate for a plea bargain to obtain a first offender program (such as HYTA) or petition for a delayed sentence which can result in dismissal of the offense. When someone is charged with felony retail fraud in the first degree, our goal may be to seek a reduction of the felony to a misdemeanor and avoid jail. Our experience has been that most retail fraud cases are resolved favorably by knowing our courts, knowing our clients and taking action prior to the first court date to address underlying problems associated with risky behavior.

Retail Fraud Sterling Heights, Shelby Township, Utica, Macomb Township
Handling Shoplifting Cases in Clinton Township
Most Prevalent Misdemeanor Cases in Macomb County District Courts

The Science of Blood Alcohol Levels: Alcohol Absorption & Elimination

September 26, 2014,


Blood alcohol levels are related to the amount of alcohol consumed. The passage of time may mean that some of the alcohol has been eliminated from the body. A consultation with someone charged with drunk driving invariably will involve questions which pertain to these factors:

  • How many drinks were consumed?
  • What was the alcohol percentage (proof) of the beverage consumed?
  • How big were the alcohol containers/glasses, shot, 12 oz, 16 oz?
  • What time did drinking begin and when did it end?
  • What was the result of the test administered by the police (breathalyzer)?

The answers to these questions, and others, allow our attorneys to explore the accuracy of the chemical or blood test result and explain the processes of alcohol absorption and elimination to our prospective clients. This article contains a description of these processes along with various useful charts.

Alcohol absorption and elimination are processes that occur when a consumes an alcoholic beverage. Absorption refers to the passage of alcohol through the blood, while alcohol elimination is the rate at which alcohol leaves the body.

Blood alcohol content

Shot, Beer, and Wine.png

Blood alcohol content (BAC), or blood alcohol level (BAL), refers to the amount of alcohol in the body. Numerous factors have an influence on BAC levels. These include consumption of food, percentage of alcohol, body weight, sex, and physical activity. Furthermore, every person digests alcohol in a different way, which leads to varying absorption and elimination rates.

Alcohol absorption

Through a process known as diffusion, alcohol is absorbed through the stomach and small intestine. The rate of absorption occurs more rapidly when a person consumes a beverage with a higher proof, or percentage of alcohol.

Absorption occurs faster when a person drinks alcohol on an empty stomach because the alcohol goes directly into the stomach lining, without a barrier of food. An individual may attempt to control alcohol absorption by slowing down the ingestion of alcoholic beverages and by drinking water in between alcoholic beverages. It should be noted that recently consumed alcoholic beverages would not necessarily show up on a breath test because the process of absorption takes time to occur.

Ordinarily, it takes about 30 to 60 minutes for alcohol to be absorbed in the body. However, it may take up to two (2) hours for complete absorption to occur when someone engages in binge drinking within a short period of time. Binge drinking refers to an individual's consumption of multiple alcoholic beverages in two hours. Generally, the amount of drinks per two hours varies between men and women; men must consume five (5) or more drinks, while women must only consume four (4) or more drinks to meet the level of binge drinking.

Alcohol elimination

Alcohol is eliminated from the body via excretion and metabolism.
Most alcohol is metabolized, or burned, in a manner similar to food; this process results in production of carbon dioxide and water. A small portion of alcohol is excreted through the individual's breath, leaving the body as alcohol. This process allows for a breath alcohol test, or more commonly referred to as a Breathalyzer test.

Average rate of elimination


First, it must be understood that everybody eliminates alcohol from his or her bloodstream at different rates. The factor playing the most significant role in the elimination of alcohol is the passage of time. Over time, alcohol is eliminated from the body in the same manner that other toxins are eliminated. Scientific studies, however, have been able to ascertain an average rate of elimination for individuals. According to Forcon, a well-known forensic consulting firm, individuals may see a decrease in their BAC by 10-20% within the first hour, while most will only see a 13-18% decrease.

Multiple criminal charges do not always mean multiple criminal convictions!

August 29, 2014,

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Above image is an actual court disposition resulting in dismissal of multiple offenses.

This blog is based upon our experience representing clients that are charged with multiple criminal offenses. Multiple criminal offenses may be brought even when there is a single intent involved. When confronted with multiple criminal charges, our objective becomes one of untangling the mess, isolating what really occurred and attempting to get charges reduced or dropped.

In certain situations, a person may obtain multiple criminal charges arising out a single incident, single intent or criminal episode. An evening of alcohol consumption with friends, or the escalation of a domestic altercation, sometimes ends poorly. In other cases, multiple criminal charges may be the result of an over-zealous prosecutor or police agency seeking to hit an offender with every offense in the Michigan Penal Code. In our experience, multiple criminal charges arising out of a single incident is usually "over-kill" on the part of the prosecutor or cops and seldom results in multiple convictions when approached with a sound legal strategy.

Over Zealous Prosecution, Over-Charging

As I mentioned, multiple criminal charges may occur when a prosecutor is over zealous. Multiple charges give the prosecutor an unfair edge in the plea bargaining and jury process.

Plea bargaining: A prosecutor has leverage during the plea bargain stage of a criminal case when a defendant has multiple criminal charges arising out of the same conduct. In a multiple charge scenario, a defendant may not want to risk fighting multiple criminal charges at trial. The prosecutor may offer to dismiss some of the charges upon a defendant pleading guilty to 1 or 2 of the offenses in a multi-charged complaint.

Jury process: In addition, prosecutors have an advantage with juries in cases where multiple charges are pursued. The advantage is a psychological one where the jury feels that a defendant facing multiple criminal charges must have done something wrong to deserve it. Also, jurors may feel that they can satisfy both the prosecutor and defense by spitting the verdict and finding a defendant guilty of some of the charges while dismissing others.

Examples of Cases Involving Multiple Criminal Charges

Example #1: Our firm represented a spouse charged with domestic violence, preventing use of telecommunications equipment, disorderly conduct and resisting/obstructing the police. Our client tried to leave the residence because of a heated argument with his wife. His wife blocked the doorway and he pushed her aside to leave the residence. The police report said that our client attempted to grab the phone from his wife when she first tried to call the police during the argument. He then left the residence but returned shortly thereafter while the police were present. The report stated that our client was loud and uncooperative when he tried to give his side of the story to the police. Our client did not have any prior record and was hardly someone we would qualify as a trouble maker or violent person.

The above scenario (Example #1) is not uncommon. Improperly handled, the defendant may have wound up being convicted of several offenses (domestic violence, tampering with telecommunications equipment, disorderly conduct and resisting/obstructing police). That was not the case. Our job was to separate the wheat from the chaff. In other words, we were able to negotiate dismissal of several offenses (misdemeanors and felonies) which did not pertain to the underlying purpose of police intervention. The prosecutor and police both agreed that the person did not deserve multiple convictions. His wife was also helpful because she admitted that she was complicit and contributed to the physical contact when she obstructed her husband's mobility as he attempted to vacate the residence. The final outcome was a plea to the offense of disorderly conduct which was taken under advisement pursuant to MCL 771.1 by the court and dismissed after one (1) year of good behavior.

Example #2: Our client was pulled over for suspicion of drunk driving. He failed the field sobriety tests and tested positive for alcohol on the preliminary breath test (PBT). He was arrested. The police did an inventory of the vehicle and found a small quantity of marijuana and a "one-hitter" pipe. He had a suspended license because of an unpaid traffic ticket and did not have proof of insurance although the vehicle was insured. His charges consisted of drunk driving (OWI, .08% or greater), possession of marijuana, possession of narcotics paraphernalia, driving while license suspended and no proof of insurance.

In this scenario (Example #2), we were able to have the no proof of insurance offense dropped because our client produced valid insurance at the pretrial conference. The driving while license suspended offense was also dropped because our client provided proof that he paid the ticket which resulted in his license suspension. Our client agreed to plea to a reduced charge of "impaired driving" and the offense of possession of marijuana was taken under advisement pursuant to MCL 333.7411 which was dismissed upon good conduct after 1 year. The offense of possession of narcotics paraphernalia was also dropped at the pretrial conference.

We hope that this blog is useful to anyone facing multiple criminal charges. As I stated, a sound legal strategy and the ability to negotiate effectively can often lead to favorable results with minimal consequences. Knowing how to deal with the prosecutorial arm of government can mean getting a huge break without serious criminal convictions.

Links to other popular blog pages:

Pretrial conference

Domestic violence, Part 1

Domestic violence, Part 2

Domestic violence, Part 3

Should you cooperate (snitch) with the police?

Shotime's 'Shameless' Accurately Portrays Experience of a First-Time Offender

March 11, 2014,


A recent storyline on the Shotime series 'Shameless' has focused on the show's protagonist being charged with a crime for the first time. Fiona Gallagher, Shameless' lead played brilliantly by Emmy Rossum, is charged with narcotic possession and child endangerment when a child in her care accidentally ingests drugs at her home. In my opinion, the portrayal of the indignities she suffers and choices she is faced with are for the most part realistic depictions of a first time offender's interaction with the criminal justice system. I think this storyline is laudable, because it is an aspect of the law often overlooked in popular culture (TV shows and movies tend to focus on corporate legal proceedings and capital crimes it seems).

When Fiona is arrested, she is brought to jail awaiting her arraignment. Shameless unflinchingly outlines the discomfort and invasion of privacy one endures in jail. Something I hear almost every day in my office is 'One night was enough, I will never go back.' The arraignment is shown next, accurately so as well. Fiona is unable to retain counsel so her bond ends up being set high. Bond, for those who don't know is an insurance policy that you will return to court for future dates. I've found that people who retain counsel have a better shot at getting a reasonable bond, even where they are charged with a felony.

Fiona then struggles with her public defender. While the public defender seems very well versed in nuances of Fiona's charge, she's spread thin. This can certainly happen in real life. Public defenders can get very large caseloads that they have to stay competent on and split their time between. There are a lot of capable public defenders, much like Fiona's, but access to them can be a real issue as shown in Shameless.

Subsequently, Fiona struggles with whether or not to take a plea deal. She thinks that the State has her dead-to-rights on the possession issue but feels that she didn't do anything to endanger the child in her home. Nonetheless, she is offered a plea disposition that likely takes jail off the table. A big part of criminal defense is negotiating pleas and advising clients on their merits. In Shameless, Fiona probably had a losing trial. She was guilty, there were a lot of witnesses, and she didn't have a viable defense. Given that jail was certainly on the table, a deal was at least worth a conversation. Clients and lawyers have to weigh the probability of success at trial versus the sure thing before them. Fiona hems and haws over this, and ultimately cops a deal admitting guilt before the judge.

Fiona is sentenced to 3 years probation with a conditional house arrest tether. For a felony this seems more or less on point for what I see in the court system. For a felony conviction it's normal, in Michigan, to receive 12 to 36 months probation. Her reporting, three times a month, struck me as steep but that may be the standard in Illinois. Personally, we see Fiona struggling with her loss of freedom and diminished role in her family. Probation serves different objectives. It is designed both to punish and rehabilitate. Probationers often become dejected over the enormous infringement of freedom they endure. Nonetheless, courts almost universally view probation as a favor being granted in lieu of straight jail time.

Overall, I commend Shameless for its largely accurate depiction of this difficult and oft-neglected topic in pop culture. Fiona's experience as a first time offender is something we deal with regularly in our practice. We attempt to identify and sympathize with the frustration, fear, uncertainty, and anger our clients experience when they find themselves in a similar position.

Everything that you wanted to Know about the HYTA Law in Michigan

January 21, 2014,

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In Michigan, the Holmes Youthful Trainee Act, commonly known as HYTA, is covered by statute, MCL 762.11. The essence of HYTA is that it allows for dismissal of eligible criminal offenses committed by youthful offenders. This statute applies only to offenders that are age 17 to 20 years old. HYTA is not available for juvenile offenders; those under age 17. In Michigan, a person is considered an adult for their crimes at age 17 and beyond. The dismissal of a criminal offense pursuant to HYTA is tantamount to an expungement. The benefit of getting HYTA means that the offender avoids the stigma and label of a criminal conviction. Subject to some exceptions, HYTA is available for most felonies and misdemeanors. A person applying for a job or filling out an employment application would be able to exclude an offense dismissed pursuant to compliance with HYTA.

Key aspects of a HYTA case: Conviction is not entered and records are sealed!

A person who seeks HYTA is required to formally plead guilty to the offense or offenses which are being considered for a HYTA plea. However, once the court accepts someone on HYTA status, the court does not enter a judgment of conviction and the court and Michigan State Police records become closed to the public view. The records remain sealed unless the person violates his or her HYTA status.

A person who is awarded HYTA status may be incarcerated. This is usually not the case unless there are compelling or aggravating circumstances. HYTA usually entails a term of probation with whatever conditions that the court deems appropriate for the youthful offender. If the offender violates any of the terms of probation, the guilty plea may be abstracted as a conviction. Should this occur, the conviction becomes a public record and the offender faces punishment and possible incarceration up to the maximum period of time allowed for the particular offense. However, if the person complies with the terms of probation, the case is dismissed at the end of probation and the record remains sealed. A sealed record means that it is not accessible to public access or by any member of the public who makes inquiry at the court or to a law enforcement agency.

How does someone get HYTA status?

HYTA status is not guaranteed and may be accepted or rejected in the judge's discretion. HYTA is obtained by an attorney negotiating this favorable disposition with the prosecutor and petitioning the court to accept the same. Since HYTA may be rejected by the court, it is vital that an attorney be retained in order to gain the best advantage in subsequent criminal proceedings.

HYTA status may also mean the imposition of probation, random testing for alcohol and drugs, counseling and payment of restitution. Restitution may be ordered in cases involving damage to property (home invasion, malicious destruction of property) or economic crimes (larceny).

HYTA is not available for some crimes and traffic offenses

HYTA is available for most criminal offenses including felonies and misdemeanors. However, the HYTA statute lists various offenses which are not eligible for HYTA status as follows:

  • Traffic offenses, including Operating While Intoxicated
  • An offense which carries a maximum penalty of life in prison
  • Major controlled substance offenses
  • Most criminal sexual conduct crimes

Creative legal solutions to get HYTA for ineligible crimes and offenders

Ineligible offenses: Sometimes, we are called upon to defend a client that is charged with an offense that is not eligible for HYTA. In such a case, we may attempt to seek a plea bargain to have the prohibited HYTA offense amended to an offense which is compatible with a HYTA disposition.

Offenders over age 20: When an offender is over age 20, HYTA is not applicable. In rare situations, our attorneys have been able to have the occurrence date of the crime amended to an earlier date when the offender's age would be under age 21.

HYTA Facts

  • There is no limit on the number of cases which may be placed on HYTA status.
  • An offender under age 17 or over age 20 is not eligible for HYTA.
  • HYTA is not guaranteed and may be rejected by the judge.
  • HYTA is not available for traffic violations or drunk driving.
  • HYTA may include jail, probation, counseling and restitution to any victims.

Other Michigan provisions which are similar to HYTA

There are other criminal cases which can be resolved by laws which are similar to HYTA. They are as follows:

The above provisions may only be utilized once in a person's lifetime. On the other hand, HYTA can be applied on an unlimited basis provided the offense and the offender are eligible and the judge accepts HYTA as part of the disposition. However, the likliehood of getting HYTA when someone has a prior record is remote.

In theory, with the right lawyer, a person can have several offenses dismissed in his or her lifetime by knowing how to petition the court for application of these alternative sentencing provisions of law.

Indecent Exposure and Urinating in Public

January 12, 2014,

pee in public.jpeg

In Michigan, the crime of public urination is not included in the Michigan Compiled Laws. However, many towns, villages and cities have ordinances against such behavior and offenders may be arrested for violating the ordinances. For example, Delta Township (west of the City of Lansing) has such an ordinance, which makes urinating in public illegal. The maximum penalty for this misdemeanor is up to 90 days in jail.

Because Michigan doesn't have a specific crime related to urinating in public, an individual may be charged pursuant to state law under the Indecent Exposure statute, under MCL 750.335a or the Disorderly Conduct statute. This crime has negative connotations which are associated with deviancy or sexual misconduct. A conviction on a person's record leads to undeserved misunderstandings and possibly labels the person as a weirdo or trouble maker.

Unfortunately, many persons who engage in the conduct of urinating in public are those who leave taverns or bars after consuming alcohol. We see a greater number of persons charged with this crime in places like Royal Oak, St. Clair Shores or downtown Utica where many bars are located within a confined geographical area. The police tend to be on the lookout for misconduct such as urinating in public, disorderly conduct and public intoxication in areas where bars are close to residential areas as well.

Medical Emergency

In some cases, individuals may be suffering from a medical emergency, and that is why they urinate outside of their home. This is especially true for older people, or those with prostate gland problems, who risk serious health complications. One such example is a bladder stone which forms when the bladder is not properly emptied.

The Mayo Clinic provides information regarding the adverse health effects of "holding it."

Embarrassment and Stigma Associated with the Crime Indecent Exposure

Our goal, as Macomb County criminal defense lawyers, is to avoid a conviction for any crime which can cause lifelong embarrassment and misconceptions. Indecent exposure or urinating in public (misdemeanor crimes) certainly qualify as crimes which nobody wants on their record. Whenever appropriate, we may argue "medical emergency" for a person who gets caught urinating in public. In some jurisdictions, we have been able to have the offense amended to a harmless civil infraction such as "impeding traffic". Other dispositions allow for dismissal of the offense after a period of compliance when we can convince the court to grant a delayed sentence pursuant to MCL 771.1 or HYTA for offenders who are age 17 but under age 21.

Written by: Samuel Bennett,
Abdo Law, Central Office Intern

sam bennett.pngSamuel is a third year law student at Thomas M Cooley Law School who has been an office intern with the Abdo Law Firm for three years. Currently, he is working as a Student Public Defender in Washtenaw County, where he represents clients charged with felonies. Sam was formerly with the Wayne County Prosecutor's Office as an Intern in the Child Abuse Unit, where he aided the Lead Prosecutor with a plethora of cases. As a student, Samuel received the Certificate of Merit for Trial Skills and served as a Teacher's Assistant for Trial Skills. He will graduate in May 2014, and will be sitting the July 2014 Bar Exam.

Have You Had Your Dose of Whiskey Today? Prescriptions for Booze Were Available During Prohibition

December 16, 2013,


From 1920 until 1933, the sale, production and use of alcoholic beverages was illegal in the United States. This was known as Prohibition. What I didn't know was that a doctor could prescribe alcohol for medicinal purposes pursuant to the National Prohibition Act during this era. The image which is located at the top of this article was obtained from an actual scanned prescription which was issued on December 20, 1928 to a resident of Washington, D.C. The prescription was for 1 pint of whiskey. The prescription contains the pre-printed words, "Prescription Form for Medicinal Liquor." Perhaps the person who obtained the medicinal liquor had a cough due to cold or was just stocking up before New Years!

Prescriptions for alcohol were actually quite common during prohibition. The substance whiskey was also prescribed under the label of "spiritus frumenti" as the image below illustrates.
Thumbnail image for RX for Booze.jpg

Does this resemble the course of action which we are now seeing regarding the medicinal use of marijuana?

Michigan Drunk Driving Cases; Frequent Consultation Topics

November 29, 2013,

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The nature of this publication will be dedicated to the frequent talking points which arise during our consultations with clients that are charged with a Michigan drunk driving case. We admit that the drunk driving laws are convoluted. All or one of the following laws can be applicable to a person who is involved in a drunk driving traffic stop, charge or upon conviction:

Criminal laws which empower the court to impose incarceration and other penalties.
Civil infractions, such as refusing the Preliminary Breath Test (PBT).
Search and seizure laws which allow a court to issue an order for a blood test.
Implied consent laws (when a breath test or other test for alcohol or drugs is refused) which can result in points and license sanctions.
Administrative laws which empower hearing officers that are employed by the Secretary of State to conduct implied consent and license appeal hearings.
Appellate laws which allow a person to appeal an administrative decision to circuit court.
Insurance laws which allow insurance companies to rate individuals that are convicted of traffic tickets and drunk driving.
Immigration laws in countries such as Canada that prohibit persons from entry that have been convicted of a drunk driving or impaired driving.

We hope that you will find this publication informative.

Drunk Driving Terminology and Abbreviations: OWI, DUI, OUIL, OWVI, OWPD

Michigan's drunk driving laws have evolved over the past 30 years. When the laws change, so does the terminology which is utilized by practitioners and the public. Our Macomb County lawyers find ourselves explaining the complex legal terminology to our clients that are faced with a drinking and driving offense.

Drunk Driving: Under present Michigan law, the offense of drunk driving or driving under the influence of alcohol is known as "Operating While Intoxicated" (OWI). Under prior law, the act of "driving" a vehicle, as opposed to simple operation, was necessary to sustain a conviction of Driving Under the Influence (DUI). However, the abbreviations and terms OWI (Operating While Intoxicated), DD (Drunk Driving), DUI (Driving Under the Influence) and OUIL (Operating Under the Influence) are often used interchangeably to refer to the Michigan drunk driving offense of OWI (Operating While Intoxicate). When someone is charged with Operating With the Presence of Drugs, the abbreviation most often utilized is OWPD.

Impaired Driving: The abbreviation OWVI applies to the lesser drinking and driving offense of Operating While Visibly Impaired or Impaired Driving. Under prior law, we referred to impaired driving as an OWI (Operating While Impaired). As I mentioned, the OWI abbreviation is now used to refer to the offense of Operating While Intoxicated.

Actual Intoxication is irrelevant when blood alcohol content is greater than .08%

When a person is arrested for any driving under the influence (by alcohol or drugs) in Michigan, the police will ask the person to take a chemical test to determine the extent of alcohol or presence of drugs within the blood. A person's blood, urine and breath may be tested to determine the person's blood alcohol content (BAC) or drug consumption upon request by the arresting law enforcement agency. The test results are admissible in court proceedings to establish legal intoxication should the person be charged with operating while intoxicated or impaired driving. In Michigan, a person is considered to be legally intoxicated (OWI) if the blood alcohol test is .08% or greater. Elevated blood alcohol of levels of .17% or greater will support enhanced criminal charges known as "high blood alcohol content" or "super drunk".
The legal intoxicated limits in Michigan are:

Offense Legal Limit
Zero tolerance (under age 21): .02% or greater
Operating while intoxicated: .08% or greater
High BAC or Super Drunk: .17% or greater

Blood Alcohol Content (BAC) Charts and Graphs

Alcohol_chart men and women.gif

Blood alcohol content (BAC) charts are a worthy source of information to calculate the amount of alcohol consumption that is required to be considered legally intoxicated. These charts provide a fairly accurate estimate of the amount of alcohol within a person's blood based upon two key variables; body weight and the number of drinks consumed. However, the charts do not take individual metabolism rates into consideration. Metabolism can be affected by several factors, such as body temperature, the type of alcoholic beverage consumed, and the amount and type of food consumed.
BAC Reference Chart

ESTIMATION: How long to eliminate alcohol from your system?

The normal body will metabolize alcohol between .012 percent and .016 percent BAC per hour. Numerous other variables can influence the elimination rate of alcohol in the human body. Most charts that I have seen apply an elimination rate of .015 per hour. Therefore, a male weighing about 175 pounds who consumes 6 beers, containing 4.5% alcohol, within 3 hours would register a blood alcohol content of .08. It would take approximately 1 hour after he quit drinking to register less than .08 and it would take approximately 5 hours (0.0) to be completely sober.

Impaired or Drunk Driving May Be Charged When Test Results falling Below .08!
There is no automatic presumption that a person is "impaired" or "intoxicated" when the test results fall below .08. However, when the test results are less than .08, the police officer, or other witnesses, may provide testimony at trial regarding any conduct or objective signs of impairment or intoxication. Objective signs of impairment may include the following: odor of alcohol coming from the driver, red, watery eyes, erratic driving (weaving) and slurred speech. In addition, the police assess a driver's ability to perform various field sobriety tests. Field sobriety tests are designed to test a driver's balance and motor skills. Police may ask a driver to perform tasks such as walking heel-to-toe in a straight line, standing on one leg, or reciting the alphabet backwards. In addition to the testimony of the police or witnesses, the BAC test results are also admissible in evidence at trial to show alcohol consumption.

Should I refuse the blood alcohol test if I am arrested for a drinking and driving offense?

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Based upon the above information it may seem prudent to refuse any test which the police ask you to take following an arrest for operating while intoxicated. However, a person that refuses a chemical test in connection with a valid arrest faces license suspension and is also subject to a compulsory court ordered blood test. The following is a summary of consequences when someone refuses to take the chemical test offered by the police:

1. The person loses his right to have an independent blood alcohol test.
2. The police may obtain a court order for a blood sample.
3. The person faces 6 points and license suspension for 1 year.
4. The person may be eligible to appeal the refusal in a circuit court proceeding.
5. Drunk driving charges will depend upon the results of the blood tests.
6. Additional license sanctions are imposed upon conviction for OWI or OWVI.

Michigan Implied Consent Law (Michigan Compiled Law 257.625c)

Michigan's Implied Consent law provides that a person arrested for operating a vehicle while intoxicated or impaired by an alcoholic liquor, a controlled substance, or other intoxicating substance or a combination thereof is considered to have given consent to chemical tests of his or her blood, breath, or urine for the purpose of determining the amount of alcohol or presence of a controlled substance or both in his or her blood or urine or the amount of alcohol in his or her breath.

Police May Obtain a Court Order for Blood Test

The police may obtain a court order for a blood test when confronted with a suspect that refuses a chemical test offered by the police.

Suspect's Right to a Secondary or Independent Test

The right to take an independent test of your own choice (blood, breath or urine) is conditional upon first submitting to the test which is offered by the police. The right to an independent test is lost should a person that is arrested for operating while intoxicated refuse the test offered by the police.

Implied Consent Hearings: Sanctions for Unreasonable Refusals

As I already mentioned, the police may obtain a court order for a blood test when a person refuses to voluntarily submit to a breath, blood or urine test. This means that the person will still face operating while intoxicated criminal charges when the blood test result is returned to the police from the testing facility. In addition, the person who has refused an alcohol test faces license sanctions by the Secretary of State.

A person that refuses the chemical test offered by the police is given an opportunity to an administrative hearing (aka: implied consent hearing) before a Secretary of State referee to explain the circumstances of the refusal. MCL 257.625f limits the issues appealable at a hearing to the following:

1. Whether the peace officer had reasonable grounds to believe that you committed a crime described in MCL 257.625c(1).
2. Whether you were placed under arrest for a crime described in MCL 257.625c(1).
3. If you refused to submit to a chemical test upon the request of the officer, whether the refusal was reasonable.
4. Whether you were advised of your rights under MCL 257.625a

Refusals based upon failure to understand the law are not considered reasonable since we are dealing with an "implied consent" law. Again, the implied consent law means that you consent to the test by accepting the privilege to operate a vehicle in the State of Michigan. Other common refusals are known as technical refusals. A technical refusal usually means that the suspect gave an insufficient sample. An insufficient sample may occur when someone tries to fool the machine by not placing their lips tightly on the breathalyzer straw or by providing a soft or side blow into the machine.

An attorney should be retained for representation at the implied consent hearing to fully explore all possible defenses. If the police officer fails to appear or did not follow the testing protocol and procedure, the implied consent hearing will be resolved in favor of the petitioner.

A person that loses his or her implied consent hearing faces license suspension for a period of 1 year and 6 points is placed on the driving record. A second refusal within 7 years results in a suspension of 2 years. This is a separate consequence from any subsequent convictions resulting from the traffic stop.

Implied Consent Suspension May be Appealed in the Circuit Court Based Upon Hardship or Legal Grounds

Appeals based upon hardship: As I mentioned, you face suspension of your license for 1 year upon losing first implied consent hearing. A person facing a first time implied consent suspension has the right to file a circuit court appeal to request a restricted license based upon need or "hardship". A hardship appeals requires a showing that a person needs to operate a vehicle for employment or education and both of the following exist:

-A mass transit system is not available to provide the necessities of transportation, and,
-No other person with in the household of the petitioner can supply transportation.

Upon winning a hardship appeal, a restricted license is granted for remaining duration of the implied consent suspension. Hardship appeals are filed in the circuit court where the underlying offense occurred. In addition, most circuit court judges require a substance abuse evaluation for the hardship appeal.

Appeals based upon legal grounds: Any person may appeal an implied consent suspension based upon legal grounds. An appeal based upon legal grounds means that you are asking a circuit court judge to overrule the decision of the Secretary of State referee because:

-Made upon unlawful procedure resulting in material prejudice to the petitioner.
-Not supported by substantial, material, and competent evidence on the whole record.
-Arbitrary, capricious, or clearly an abuse or unwarranted exercise of discretion.


There are numerous laws which apply when someone is charged with operating while intoxicated in Michigan. Even more laws kick in when there is a refusal of a chemical test. If you have refused the breath test, you may still be eligible for a restricted license based upon hardship. If you find yourself in this position, hire a lawyer that can navigate these complicated laws and get you the best results.

Macomb County Juvenile Court, Juvenile Delinquency Cases: Closely Related to Adult Criminal Cases

November 24, 2013,

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Technically, juvenile cases are not considered criminal. However, juvenile cases, along with the responsibilities of an attorney representing a juvenile, are akin to criminal cases in many ways. The Michigan Penal Code applies to juvenile conduct. This means that juvenile crimes are labeled as a felony or misdemeanor which can become part of a permanent record. In addition, a juvenile may be detained or placement may be ordered. However, a juvenile may not be placed in an adult prison institution unless tried as an adult under certain circumstances. Even when tried as an adult, the juvenile is not housed with the adult inmates.

The main focus of this publication will pertain to "juvenile delinquency cases" with emphasis on our firm's experience in the Juvenile Division of the Macomb County Circuit Court.

Crimes by Persons Age 16 or Younger Treated as Juveniles

At age 17 and beyond, a person is treated as an adult for his or her criminal conduct. In our website, we explain the availability of HYTA for Macomb County offenders that are age 17 but under age 21.

Generally, someone under age 17 who commits a crime is treated as a "juvenile". Juvenile cases which involve criminal activity are referred to as delinquency cases and are handled in the juvenile court. In certain cases, a juvenile case may be waived to the adult criminal court.

Younger Offenders, More Drug Crimes and Sex Crimes

In the past, society was able to resolve many juvenile related infractions outside of the court system. For example, if a juvenile broke a neighbor's window, the police might try to make contact with the juvenile's parents to pay restitution without court intervention. However, we are now seeing a greater number of cases instituted as formal juvenile delinquency cases than we did in the past. In addition, our Macomb County attorneys have seen an increase in drug related crimes that involve juveniles. I believe this is due to the accessibility of marijuana and prescription medications in our culture. Offenses which are labeled as sex crimes are also more prevalent in the juvenile system. Perhaps this is because children are exposed to sexuality at a younger age via the internet and television programming.

Drug Crimes and Traffic Offenses Result in License Sanctions

When a juvenile is charged with a drug crime, any traffic or driving offense and alcohol crimes, the Secretary of State will take action against the juvenile's driving privileges. A drug crime will result in license suspension for a minimum of 6 months.

The State of Michigan places new drivers on a probationary license for a period of 3 years. A traffic offense during this time frame can result in an extension of probation, warning or license suspension.

Police May Attempt to Obtain a Confession

Prior to the issuance of a petition within the Macomb County Juvenile Court, the police may attempt to obtain a confession or statement from the juvenile suspect. The juvenile has all of the rights as an adult and would be urged to remain silent until an attorney can be secured. An attorney can often make recommendations as to whether or not cooperation with the police is an appropriate course of action. It may not always be plausible to have an attorney on hand when the police confront a juvenile since the police prefer to catch a suspect off balance.

Juvenile Cases Begin With a Police Report and a Petition

If criminal activity of a juvenile is brought to the attention of the police or authorities, a report is generated and submitted to the prosecutor. If the conduct of the juvenile supports a criminal offense, the prosecuting attorney can file a petition in the juvenile court. In Macomb County, juvenile cases are evaluated by the Macomb County Prosecutor's Office. If the petition is approved, the juvenile may be detained pending an arraignment.

Our firm represented a juvenile that made a bomb threat directed at his elementary school. Upon petition for charges of making a bomb threat, the juvenile was arrested and held in the Macomb Juvenile Detention Center on a one-million dollar bond. Later, our firm was able to have the bond removed. The juvenile was eventually placed on probation when the court realized that the threat was not credible.

Juvenile Cases are Filed in the County Where the Juvenile Resides

Unlike adult criminal cases which are filed in the jurisdiction where the offense occurred, juvenile cases are filed in the county where the juvenile resides. Thus a juvenile that is a resident of Shelby Township or Washington Township would have his or her case heard in the Macomb County Juvenile Court even if the alleged criminal offense occurred in Oakland County or elsewhere. Our firm handled a case which involved a juvenile who was car hopping in counties outside of Macomb County. We were able to delay the proceedings for the purpose of joining all of the offenses in Macomb County for a consolidated plea agreement and disposition.

Juvenile Division of the Macomb County Circuit Court

The Juvenile Division of the Macomb County Circuit Court is located at 40 North Main, Mt. Clemens, Michigan 48043. When a case is filed, it is assigned to one of the referees. Presently, the following individuals serve as Macomb Juvenile Court Referees:

  • Linda Harrison
  • Deborah Brune
  • George Keller
  • Diane Femminineo
  • Karen Transit

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The job of a referee involves working with the attorney, the juvenile, the family, the prosecutor, the case worker and the victim. Although the referee is not the same as a judge, they are attorneys and empowered to conduct trials. My experience with the Macomb County Juvenile referees has been positive whereby reasonable dispositions are often achieved.

Right to Jury Trial

The juvenile is entitled to a trial if a case is not resolved by a plea bargain. Trials may be heard by the referee or by the Judge that is assigned to the case. However, the juvenile in a delinquency matter has a right to a jury trial pursuant to the United States Constitution. Trials in the juvenile system are handled pursuant to the Michigan Rules of Evidence.

Text Messaging, Photographs and Social Media Sites May Be Incriminating

Upon being retained, we will invariable advise our juvenile clients to refrain from drawing any negative attention. By this, we may insist that our client refrain from texting or posting anything on social networks such as Facebook. In addition, we may advise our client to remove any incriminating or unbecoming photographs which are posted on the internet. We may even recommend that our client shut down any social media internet sites while under investigation or the subject of a delinquency case.

Juvenile Case Dispositions

There are a wide range of dispositions which may be imposed in juvenile delinquency cases. The following is a list of possible dispositions:

  • Warn the juvenile and parents and terminate jurisdiction
  • Order in-home probation with monitoring and home visits by case worker
  • Place the juvenile in foster care
  • Order community service
  • Place the juvenile in a private or public institution for treatment and rehabilitation
  • Order youth home detention
  • Place the juvenile in boot camp
  • Order the parents to participate in relevant treatment
For minor infractions, the court may impose a mere warning. Where the facts are egregious, long term detention and placement can be ordered. Rarely does a case involve detention at the Macomb County Juvenile Justice Center when a juvenile is not a risk to the community, resides in a stable environment and is attending school.

macomb juv justice center.jpg

Many of our cases in the Macomb County Juvenile Court have been dismissed outright upon compliance with a diversion program or consent calendar. To achieve a dismissal, the court may require a juvenile to complete counseling, a substance abuse program and comply with drug testing. A juvenile that fails to abide by the terms of the court's disposition may be detained within the Macomb County Juvenile Justice Center.

Ferndale Follows Trend of Marijuana Reform in Michigan

November 12, 2013,

ferndale marijuana legalization.jpg

As of last week, Ferndale voted to join Detroit, Grand Rapids, Flint, Ypsilanti, and Kalamazoo in restructuring their marijuana laws to allow for personal use in the homes of consenting adults. Ferndale, neighbor city of Royal Oak, Detroit, Hazel Park, and Pleasant Ridge, approved an ordinance that will permit personal marijuana use. Similar measures were passed in Lansing and Jackson. The ordinance was passed by nearly 70%. This may indicate possible future widespread acceptance of marijuana by the electorate as a whole. Lansing's Mayor stated that "the public is far ahead of most politicians on this issue, as evidenced by the overwhelming support for medical marijuana when it was on the statewide ballot several years ago, as well as decriminalization of small quantities of marijuana in cities like Ann Arbor, Detroit, Flint, and Grand Rapids." This may be a bellwether of things to come as Mayor Bernero went on to say "My personal view is that marijuana prohibition has been a complete failure that has mainly succeeded in filling up our prisons with minor drug offenders at an extremely high cost to the taxpayers of this state. Our police officers and courts have more important things to do than pursue and prosecute these violations."

So what exactly did Ferndale's voters approve? The language on the ballot was as follows;

"Amend city code to allow anyone 21 or older to use, possess or transfer less than 1 ounce of marijuana on private property?"

There is no indication of a licensing requirement and moreover nothing indicating that the use must be for a medical purpose. The use, possess, or transfer language is similar to that in the Michigan Medical Marijuana Act, the specifics of which are still being sorted out. Practically, what this most likely means is that Ferndale's police and courts are taking a hands off approach to private personal marijuana use.

That's not to say it's a free-for-all.

This writer suspects there will be pitfalls. In our Office's experience, the loosening of one law often results in the tightening of another. For example, when the medical marijuana act was passed there seemed to be an uptick in people prosecuted for driving under the influence of marijuana. In this instance, while some marijuana use may be permitted by the City of Ferndale, it is still illegal under state and federal law. Without becoming a lecture on federalism, you can still be prosecuted by Oakland County and United States of America. Moreover, neighboring cities, such as Royal Oak, may choose not to adopt this position and crack down on people leaving Ferndale possessing marijuana or operating a vehicle intoxicated under its effects. Further, as we have seen with the medical marijuana law, there seems to still be a State interest in prosecuting the delivery of marijuana. This is a serious felony with prison as a sanction.

Nonetheless, this suggests progress for those in support of ending the marijuana prohibition. Everything written here is just our speculation. We cannot stress enough how important it is to be in compliance with city and police officials before deciding whether or not to have marijuana in your home. While this is definitely a step forward, the State of Michigan is still a long way from outright legalization. As best said by Walter White, "tread lightly."

2013 License Restorations, Abdo Law Winning Upwards of 90% of Its Appeals

November 1, 2013,


2013 has been a year of continued success with our Firm taking on license restoration cases. This year alone we have won 80 - 90% of our cases (we are still waiting on some results). Losing your license can be a very embarrassing and demoralizing process. You either have to inconvenience your friends or risk driving under threat of the possible penalty of a DWLS. With a DWLS you wait at least another year until you can get your license back. Oftentimes, people who have had their license revoked find themselves unable to find or advance at work. Other times, it is just a stinging reminder of a person's past they are working hard to move forward from. We truly understand and identify with these concerns; we discuss them with our license clients every day. Our Firm specializes in and excels at license cases, it is one of the only areas of law in our practice where we can actually make our clients' lives better. There is nothing more rewarding for us than bringing the process full circle and helping a client restore their full driving privileges.

It seems that people in revoked status often procrastinate in dealing with getting their license back. Many people falsely feel that they have a bad case and it just simply "isn't worth it." Why do we win just about all of the cases we take on? We know how to identify cases that are strong and cases that are weak. When a case is weak, we normally just advise that you wait a little while to build some more sober time. Usually 6 months or so can make a weak case a strong case. We want to win and will always give you our honest assessment, free of charge, of whether your case is strong or weak. The bottom line is that if you have 12 months of sobriety you most likely have a good case.

That's primarily all that the State asks, that you be a year sober and have a plan for staying sober. However, filing for the appeal and presenting the proper evidence is difficult. Many people become overwhelmed with all of the letters and substance abuse evaluation process. When you let us help you, we organize everything for you, take care of all the filings, and advise you every step of the way. We have sample letters we can provide you with, we can point you in the direction of skilled counselors, and will fight for you in the hearing room. We will demystify the process for you. According to the most recent numbers I could dig up, it appears that the overall win rate is about 50%; meaning that you are betting your future on a coin-flip. Stakes are high, because when you lose you have to wait an entire year before going back for another appeal. Moreover, you will be locked into your testimony from the previous hearing. If you are anxious or poorly advised, it is easy to trip up and make statements that haunt you for many hearings to come. Going unrepresented or poorly represented can turn a 2 year process into a 5 year process. Don't risk it!

If you let us help you, we can add value by 30-40%. Moreover, in many instances we are charging a flat fee of $1,500.00 for restoration cases. Year-over-year, our Firm has a strong winning record on license cases and it's our goal for that trend to continue in 2014. If your license is revoked we're asking that you invest the small amount of time it takes to call our Firm, free of charge. Your case is probably better than you think and we're going to help you find a way to win.