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,

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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,

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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,

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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.
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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

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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.

Summary

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.

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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,

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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,

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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.

Notable Cases in 2013: Abdo Law Gets the Results

October 14, 2013,

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Abdo Law Firm prides itself on empathy, understanding, personal service, and striving for the optimal resolution of all legal matters that we take on. We are entering our fourth year with Matthew as a partner, and are continuing to grow. We always looking to hone our skills and engage challenging issues. This year we have had hundreds of satisfied clients, each case is very important to our Firm. The 'Notable Cases" series is intended to share with readers cases that had complex legal and factual questions. 'Winning' in law is not always black-and-white concept. In some cases, a win is helping a guilty client reach a best-case-scenario disposition of their case (reductions, keeping charges off their record, and reducing jail/minimizing probationary terms). In other instances, a win is a dismissal or NG verdict. With every new case, we sit with our clients and determine exactly how we can win and the best means of reaching that objective. Read below to learn more about some our Firm's more demanding cases and the tactics we employed defending our clients.

Sterling Heights: Moving Violation Causing Death

In the summer of 2012, we were approached by a client who was being charged with Moving Violation Causing Death. The client was in a situation where a criminal misdemeanor would have cost her job, and moreover harsh severe license sanctions. The facts were as follows. The client was backing from her driveway when her car made contact with a bicyclist, the bicyclist died as a result. Nonetheless, our client maintained she was backing up slowly and never saw the bicyclist until she heard contact. There were no third-party eye witnesses and all of the evidence corroborated the client's rendition of the facts. There was no exterior damage done to the car.

Pretrial negotiations went on for almost a year. The prosecution, an office we work with regularly, could not reduce the charge. The client had no choice but to take the case to jury trial. Prior to the trial we engaged prosecutor's office to streamline the case and spare the jury, and more importantly the victims, any graphic evidence. The Judge, Judge Weigand, was very amiable to letting both sides tell their story and giving all parties involved a fair trial. Though they both have litigation experience in their own right, this trial was the first that Cy and Matt, father and son, had done together. Matt focused on jury selection and arguments. Cy used his 30-plus years of veteran defense experience to question the defendant. In his closing, Matt stated "To find our client guilty is to find that accidents, true accidents, cannot happen."

The prosecution put on a very thorough case, bringing in their own expert and arduously cross-examining ours. After the prosecution and defense gave their closing arguments, the jury was left to deliberate. Deliberations went into the next morning. When they emerged from chambers, the foreman read the verdict, "Not Guilty." The victim's family hugged the defendant. Abdo Law was given a must-win situation and delivered a not guilty verdict for our client. One year and hundreds of man-hours later, the just result was achieved.

Armada: False Report or Threat of Domestic Terrorism

In the spring of this year, we were approached by a family who wanted us to represent their son who was being charged with False Report or Threat of Domestic Terrorism, a 20 year felony. The allegations were that the client made threatening statements to coworkers over social media amounting to terrorism. The charge was taken very seriously by the court and prosecution. Initially, the defendant was held on a half-million dollar bond.

From the onset, Abdo Law had a tall hill to climb. We were faced with a staggering bond and moreover media scrutiny. On top of fighting the case in the court, we had to tastefully represent the client and his family to the media, who were contacting our office regularly while the case was pending. As soon as we were hired, Matt visited the client in the Macomb County Jail. He struck Abdo Law as a very decent, intelligent, and goal driven young man. We always maintained to the court that these allegations just did not comport with our client, his upbringing, or his background.

Early on, we had a big victory getting the bond reduced pursuant to a motion promptly filed by our Firm. When the case was bound over to the Macomb County Circuit the bond was lowered to $100,000.00 (10%). The client was finally released after having spent the previous weeks incarcerated. The next phase was a thorough and protracted pretrial conference. After multiple motions and conferences on the matter, nothing favorable was being offered.

At this point, it is always the client's choice if he or she wishes to pursue a trial. The client here did not feel it was a good idea to let this play out before a jury. He opted to plea. The Guidelines in his case were unforgiving; he was potentially looking at a minimum sentence resulting in lengthy incarceration. However, Abdo Law filed a detailed sentence memorandum to the court. The memo outlined how the court had the legal authority to sentence our client without imposing incarceration. Pursuant to arguments at the sentence hearing, our client was given probation and moreover HYTA status, meaning that the conviction will not show up on his record.

Matt visited with the client after the case and was able to meet many members of his family. He is a good person with a bright future. He has a big support group and everyone was glad that the client didn't have to spend his formative years in jail, and moreover have a charge of terrorism on his record. It would have ruined this young man's life. Our client made a mistake, and he owned up to it. Pursuant to our advocacy and the client following our advice to a T, our client was able to avoid jail time and has the opportunity to keep a 20 year felony off his record.

Federal Child Pornography Crackdown; Don't Talk to the Police

August 21, 2013,

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Our law firm is seeing a wave of cases which involve the criminal offense "possession of child pornography" in both the State of Michigan and Federal Court system. The increase in child pornography arrests is related to the Federal child porn crackdown which involves several law enforcement agencies.

The Macomb Area Computer Enforcement (M.A.C.E.) is a unit of the Macomb County Sheriff Department which is dedicated to the investigation of computer crimes. This unit also cooperates with Federal authorities in the investigation and prosecution of child pornography cases.

How law enforcement operates to catch child porn offenders

Federal agents and local law enforcement officers track individuals who may possess, distribute, produce or promote child pornography based upon internet histories, searches or activity on file sharing sites. Peer to peer, or P2P, programs allow the agents to see computer content and download inappropriate material. The culmination of an investigation involves the issuance of a search warrant followed by seizure of any computers, hard drives, thumb drives, images, smartphones or any other evidence that will support an indictment or state criminal charge involving the illegal possession, distribution, promotion or production of child pornography. The suspect may be arrested and detained or released pending further investigation and technical computer forensic analysis.

What happens after the police execute a search warrant

After execution of a search warrant, the agents will attempt to obtain a detailed confession and get the alleged perpetrator to provide specific details of internet activity and the location of images on computers or hard drives. The subject may also be arrested and detained in jail whenever the police find any evidence indicating communications with minors or predatory conduct beyond mere possession of child pornography. Whenever a suspect is arrested, the police will need to charge the person within a reasonable time and have the assigned court set bond. In some cases, the suspect is released pending criminal charges. It can take several months for the actual charges or indictment to occur. This is especially true when images are difficult to find or have been deleted or when the computer devices are turned over to technicians for forensic analysis. A suspect later will be formally charged when deleted or encryted child pornography images are recovered.

In a recent case following a search and seizure, the Feds were able to get a warrant compelling a person to disclose his passwords for the purpose of gaining information from encrypted drives. Attorneys argued that this violated the person's 5th Amendment rights (privilege against self-incrimination). However, the issue has not been addressed by the higher courts. In other cases, the law enforcement agency will use computer technicians to recover deleted images.

Why are some child pornography cases prosecuted under Federal law and others under state laws?

Possession of child porn can be prosecuted under Federal or state laws. Even a single photo or image may be sufficient to press charges. The Feds may take control of a case involving child pornography or turn it over to the local authorities (state) for prosecution. When a case involves several hundred images, involves production or distribution of child pornography, our experience is that the Feds will retain the case and prosecution will occur in the Federal District Court. However, the Feds may turn a case over to local authorities for prosecution when there are minimal images involved.

Offenders may be prosecuted in both federal and state courts!

A prosecution at the state level does not preclude another prosecution at the federal level pursuant to the doctrine of dual sovereignty. The Double Jeopardy Clause of the 5th Amendment does not preclude both state and federal prosecutions under the doctrine of dual sovereignty. The dual sovereignty doctrine has been upheld by the USSC in U.S. v. Wheeler, 435 U.S. 313 (1978) and numerous federal appellate courts.

How does the government prove that a person knowingly possessed child pornography?

A criminal defense lawyer will assert every possible factor in defending child pornography cases including: lack of control, whether the person was seeking out (searching) for the images, knowledge, and whether the images were deleted. The following is a brief explanation of these factors which may formulate a defense or be utilized by the prosecutor:

1. Control of an image: Various factors are relevant which the court can consider regarding "control" of an image, including whether the image was saved, copied , printed, forwarded or deleted.

2. Seeking the image(s): Seeking the image is the process that one undertakes to find or obtain child pornography. Clues of a person's actions to seek child pornography can include visits to child pornography websites, subscription to child pornography websites, or use of search words related to child pornography.

3. Knowledge: Any statement made by a person under investigation for child pornography can be used to prove knowledge. In an actual case, the court held that an inference of knowledge can be drawn when someone said, "I don't have too much" in response to an investigator's question about the presence of child pornography images on his computer.

4. Deletion: A defense attorney will invariably advocate any actions by a defendant who has deleted child pornographic images. This is a strong factor which may be argued especially when the images are not manually saved to a special file, there are minimal images or when a person has limited or unspecific search activity pertaining to pornography.

Our source and in depth analysis of these factors can be found in a Florida Law Review article, "Possession of Child Pornography: Should You be Convicted When the Computer Cache Does the Saving for You?"

Child pornography crackdown leads to numerous arrests and convictions

There has been a flurry of arrest activity pertaining to child pornography crimes which verifies the aggressive efforts by Federal and State of Michigan law enforcement agencies . Links to some recent these cases can be found here:

Shelby Township man charged with child porn

Chesterfield Township man charged with child porn possession

48 Year Old Woolwich Township man indicted in federal child porn case (faces 15 to 30 years and fine of $250,000.00 per count)

Port Orange man pleads to federal child porn charges, faces up to 20 years in federal prison

14 Years in Federal prison for man convicted of possessing 56 child porn images

Pleasant Hill man sentenced to 15 years in prison for distributing child porn

Avoid making any statements to the police or agents, even a denial, and retain an attorney as soon as possible!

Anyone who is the subject of a criminal investigation or has been arrested involving child pornography should remain silent. An excellent resource on the topic of one's right to remain silent can be found on YouTube video, "Don't Talk to the Police". This video has has had approximately 3,000,000 views and has been prepared by sources that our firm deems reliable. As I mentioned in this article, any statements that are made can be used to prove knowledge. Alternatively, if a person makes statements of denial and is later found to be less than forthright, the person may face charges for making a false police report of lying to a Federal agent. Willfully making false statements or concealing information, in "any matter within the jurisdiction" of the federal government of the United States, even by mere denial, can carry 5 years in prison. When a person has made incriminating statements or a confession, there may be grounds to have the statements suppressed under certain circumstances.

In addition to remaining silent, a person under investigation or arrest should immediately consult with an attorney for further attention. An attorney will make recommendations and do damage control if a client has made incriminating statements to the police or Federal agents. Proactive case management and recommendations may include engaging the services of a counselor and obtaining medical reports if a person is under doctor's care for a past or present mental illness. Whenever appropriate, an independent team of computer forensic technicians may be employed as part of the defense team.

Resources:

Federal Child Pornography Law

State of Michigan, Child Pornography Law: MCL 750.145c


Keep Your License After a DUI 2nd Offense: Michigan's Sobriety Court Program

August 16, 2013,

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Under Michigan Law, if you are convicted of 2 or more drinking and driving offenses within 7 years (or 3 within 10) your license is revoked indefinitely. A revocation, unlike a suspension, will not automatically expire or terminate. There is a mandatory one-year waiting period before the suspension can be reviewed. Moreover, if the first appeal is successful there is an additional one-year monitoring period where you must install a "blow 'n go" device in your automobile. Any serious violations of the device will result in another license revocation. Therefore, when convicted of a second DUI in most circumstances you are looking at a MINIMUM of two years before you have a full license again. A DUI 2nd, for this reason, is a dramatic and life changing event. You're put in a position where you are slapped with fines, fees, costs and court requirements yet have no way to drive to make a living or attend probation obligations. However, the State of Michigan has recently enacted a sobriety court program that allows individuals who would otherwise lose their license to sidestep the mandatory one-year waiting period. Our office believes this is an outstanding program as it helps to promote lasting sobriety through its license incentive.

What is Sobriety Court?

Sobriety court is a highly structured term of probation, which places its emphasis on encouraging sobriety. Normally this will involve graduated phases and mandatory AA attendance. With the new sobriety court legislation, offenders with a DUI that would normally lose their license are eligible for a restricted license before waiting the mandatory one-year period. However, if participants of sobriety court violate the terms, they are most likely looking at jail time.

How does Sobriety Court Work?

When a candidate is eligible and the sobriety court program has openings they will be screened prior to acceptance. This is normally done after the pretrial/acceptance of plea but prior to sentencing. Candidates must show a willingness to accept the terms of the program and be serious about their sobriety before they're allowed to enter the sobriety court program. After starting the program, participants have their license revoked for 45 days. After the 45 days you must install a BAIID (also known as an "interlock ignition" or "blow n' go" as stated above). The breathalyzer device has to remain on your car for a minimum of 320 days after the suspension. During this period driving is restricted for purposes of school, employment and court obligations. When you fulfill the mandatory revocation period by the state (often one-year) AND complete your sobriety court program, you will be eligible to petition the State for a full license. However, failure while attending the sobriety court program will not only result in a revocation of your driver's license, but may also include time in jail.


Where is Sobriety Court Available?

Our Firm has assisted clients getting admitted to Sobriety Court in the following jurisdictions;
Warren District Court
Roseville District Court
Clinton Twp. District Court
Royal Oak District

Nonetheless, because this is a new program many districts are just now implementing it. We can advise you if the court for the city/township in which you've been charged offers a sobriety court program.

Can Sobriety Court be Transferred if My District Doesn't Offer It?

YES. We have been able to assist clients with the transfer of their probation, from the original court to one that offers this program.


Continue reading "Keep Your License After a DUI 2nd Offense: Michigan's Sobriety Court Program " »

Everything you wanted to know about drug paraphernalia

July 12, 2013,

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Possession or sale of drug paraphernalia is a criminal offense in Michigan. A person may be charged with the offense "possession of drug paraphernalia" even though there are no drugs or marijuana involved. Most items the law considers drug paraphernalia are harmless and not otherwise illegal. However, when the items are associated with past or present illegal drug use, criminal charges may be pursued.

Drug paraphernalia, or narcotics paraphernalia, is the umbrella label given to describe the equipment utilized for the purpose of using or dealing in controlled substances and marijuana. A marijuana pipe, a triple beam scale, needles and bongs are all considered drug paraphernalia.


In Michigan, the definition of drug paraphernalia is found at MCL 333.7451:

"Drug paraphernalia" means any equipment, product, material, or combination of equipment, products, or materials, which is specifically designed for use in planting; propagating; cultivating; growing; harvesting; manufacturing; compounding; converting; producing; processing; preparing; testing; analyzing; packaging; repackaging; storing; containing; concealing; injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance...

Defending Drug Paraphernalia Cases

In Michigan, possession of drug paraphernalia is a crime which is classified as a misdemeanor. In Michigan, misdemeanor cases are handled in the district courts; such as the 41-A District Court in Sterling Heights or the 41-B District Court in Clinton Township. A drug case involving possession of marijuana will have a second charge added whenever the police also find paraphernalia. The problem that we find is that many individuals do not take these charges seriously. Actually, many wind up just pleading guilty without knowing their options. Once a guilty plea is accepted by the court, a permanent criminal record is created, which contains the stigma of a "drug crime." Later, the individual realizes that this offense shows up on a public criminal record and must be disclosed as a conviction on applications for employment, education and state licenses.

Our Macomb County lawyers can assert various defenses to drug crimes as well as drug paraphernalia cases including:

  • Lack of identification with items claimed to be drug paraphernalia

In addition, our attorneys can advocate for a deal to have a drug paraphernalia charge dismissed after a period of probation pursuant to various provisions of Michigan laws. These provisions of law allow the court to take a case under advisement and grant a dismissal to an offender who proves himself or herself to the court. Youthful offenders, age 17 but under age 21, are eligible to have the matter dismissed without entering a judgment of conviction.


Drug Paraphernalia Charges May Support Other Charges Such as Possession of Controlled Substance When Residue is Present

In the war on drugs, our lawmakers have made it a crime to possess peripheral items, namely those items that are associated with used for the ingestion, sale or manufacture of drugs.

Possession of Controlled Substance: The police may seek additional controlled substance criminal charges for possession of a controlled substance whenever drug residue can be found within the paraphernalia or in the person's possession. Possession charges (cocaine, marijuana, heroin) can be supported even though miniscule particles of drugs are derived from the paraphernalia. For example, this occurs when the police can scrap marijuana or cocaine residue from a pipe or bowl. Possession of cocaine and heroin are charged as a felony, even when the quantity obtained is hardly measurable.

Maintaining a Drug House or Vehicle: This is just another possible charge when the police can obtain paraphernalia and other drugs from an individual. Click here for a link to our website page for information regarding maintaining a drug house or vehicle.

Cooperation or Snitching: In addition, the police may attempt to persuade someone caught with drug paraphernalia to engage in undercover drug deals.

We recommend that anyone facing criminal drug charges hire an experienced criminal defense attorney to discuss all possible options, defenses and alternative provisions of law which can lead to dismissal.


Should you cooperate with the police, aka snitch, when faced with possible drug crimes?

June 21, 2013,

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Cooperation, Undercover Drug Deals, Snitching: Using the little fish to get the big fish.

We have found that our clients charged with drug crimes experience a state of insecurity and despair when it comes to doing undercover work or cooperating with the police. This is something that is outside of the comfort zone for nearly everyone, especially the family members of our clients faced with this dilemma.

The classic predicament: Should a person engage in undercover drug deals or hire a lawyer for advice and face the criminal charges in the court system?
Whether someone charged with a drug crime should cooperate with the police to get a favorable deal is a delicate and controversial topic. It is necessary to obtain legal advice should anyone be charged with a drug crime and asked to cooperate. Consultation with a criminal defense attorney is crucial - time is of the essence.

We have successfully defended clients charged with drug crimes since our firm's inception without taking the precarious route of "cooperation" with the police. This is especially true for clients who do not have a prior criminal record, and those that are caught with a small quantity of drugs or marijuana.

Some Facts about Cooperation with the Police

  • There is no guarantee that you will avoid criminal charges when you cooperate with the police!
  • The police will not be able to guarantee your safety if you engage in undercover drug deals!
  • Cooperation with the police ends when the police say it ends!
  • Cooperation may mean engaging in drug deals that not only involve much higher quantities than you had in your possession, but may also include buying other types of drugs!

What is the Purpose of Cooperation?

The need for inside information is a dynamic law enforcement tool in the war on drugs. A minor drug offender who is used by the police to get the 'bigger fish' is justified on the grounds that drugs are a dirty business. This issue necessitates the need for undercover informants. The end result is another drug bust which nets the police additional sources to gain information. Should the drug bust bear fruit, others will be implicated, assets forfeited and prosecutions will occur.

Retain a Lawyer to Protect Your Rights and Discuss Your Options

When someone is arrested for a drug crime, the arresting agency will attempt to get a suspect to cooperate, or snitch. This is usually followed an offer of possible preferential treatment in the criminal justice system. Unfortunately, I hear from my clients far too often that they are told by the police that they do not need a lawyer in this scenario. This is absurd and dangerous. Whenever someone forgoes his or her 6th Amendment Constitutional right to a lawyer, he or she can wind up doing risky undercover drug deals without ever knowing all of the possible options. In addition, we found that police dictate the level of cooperation that is required. In other words, cooperation is not over until the police say it is over. This may mean that someone who is not faced with serious drug charges is coerced, or persuaded, to participate in risky undercover drug transactions without ever getting sound legal advice.

Here is what the police do not tell you:

  • Pursuant to the 6th Amendment of the US Constitutional, you have a right to an attorney.
  • Pursuant to the 5th Amendment of the US Constitution, you have a right to remain silent.
  • Your attorney can petition for deals to have your case dismissed pursuant to MCL 333.7411 or HYTA (Youthful Trainee Act), even if you do not cooperate with the police.
  • You may have defenses to the drug charges. For example, illegal searches and lack of actual possession.
  • You may not be facing jail.

We have made references to an excellent You Tube video, "Don't Talk to the Police", in other internet posts. We found the video to be extremely informative, as well as objective.

Cooperation in the Federal Court System

Federal criminal prosecutions are handled in a much more formal manner. In the Federal court system, the issue of cooperation is much different than what we see at the state court level. In the Federal system, special formalities and agreements exist. They involve both the District Attorney and at least one law enforcement agency; usually the Federal Bureau of Investigation (FBI) or the Drug Enforcement Agency (DEA). In the Federal arena, cooperation is prevalent and can be a factor to avoid a mandatory minimum sentence. The following language is contained within a Plea and Cooperation Agreement:

"If the defendant commits any crimes or if any of the defendant's statements or testimony prove to be knowingly false, misleading, or materially incomplete, or if the defendant otherwise violates this Plea and Cooperation Agreement in any way, the government will no longer be bound by its representations to the defendant concerning the limits on criminal prosecution and sentencing as set forth herein."

Don't do it alone. Our attorneys can help you determine the best course of action when it comes to dealing with your drug charges in the court system or the route of cooperating with the government. At times, cooperation with law enforcement may be a viable option. In the Federal system, it is routinely utilized in the plea bargaining and sentencing process. However, cooperation needs to be explored for each case on an individual basis by an experienced criminal defense attorney. Keep in mind that it is the client makes the ultimate decision whether to engage in cooperation or undercover operations with law enforcement officers. An attorney will look at the case from every angle, including the prospect of cooperation and whether drug charges can be fought and won. In addition, various Michigan statutes enable qualified offenders to obtain plea agreements for dismissals.


Possession of Heroin Cases on the Rise!

June 18, 2013,

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A recent article in the Detroit Free Press, "Troubling heroin addiction trend grips southeast Michigan", verifies what our law firm sees on a regular basis. The article points out that the prescription drug abuse is a precursor to heroin use. Heroin becomes the drug of choice when a user can no longer supply his or her drug habit with analogue drugs such as Vicodin and OxyContin. The article states, "Our 18- to 25-year population has exploded" in recent years.... The prescription medication problem is pushing this heroin problem. Anybody who tells you anything different doesn't know what they're talking about. I could poll every kid who comes in our clinic, and it's a broken record. It's the Vicodin and OxyContin, and then it goes to the heroin."

In my opinion, this article is long overdue and right on point. On a daily basis, our criminal defense lawyers deal with new and existing clients who are charged with drug crimes in Macomb County ranging from possession of marijuana, possession of analogues or possession of heroin. We are also seeing a greater number of cases which involve the drugs ecstasy (MDMA) and methamphetamine. Drug offenses are consistently high on the list of prevalent misdemeanor and felony cases which we handle. From a legal point of view, the drug user who is charged with a crime must address a drug problem while going through the formal court process.

Sterling Heights is also facing a problem with heroin use, as evidenced by a recent article found on WDIV's website. "Police say many children are switching from prescription pill abuse to heroin because it's cheaper."

Drug Crime Penalties Link

The defense of drug crimes such as possession of heroin are unique from a criminal defense attorney's point of view. We first start out by determining whether there is a defense to the criminal charges. The most common defenses which are advanced on behalf of individuals charged with drug crimes are "lack of possession" or "illegal search and seizure". Secondly, we need to determine the extent of a client's substance abuse problem and make recommendations accordingly.

Legal & Personal Issues for Drug Users Charged with Drug Crimes

Our legal consultations with clients that are charged with drug crimes are akin to an "intervention" with the offender and his or her parents present. Since drug charges such as possession of analogues or heroin are felonies, we invariably are discussing the possibility of a criminal felony record and incarceration. The "intervention" aspect of the consultation covers the reality of drug addiction and urgency to gain control of the problem before it is too late. According to the recent article posted in the Detroit Free Press, "The fatal overdoes in recent years often involve young men and women -- some just teenagers -- who are working and going to school "and who get caught up in it."

I like to think that the legal process for someone charged with a drug crime can be the "turning point". When we can reach someone at this juncture, the chances of managing a drug problem are huge. However, the drug user cannot do it alone. I consider family members to be the most important component in the overall plan to remain abstinent. A parent may consider keeping very close tabs on a child with a drug problem. This may mean taking away the car keys and privileges. In extreme cases, we recommend that the drug user enter an in-patient program for detoxification and monitoring depending upon the circumstances. Other components of rehabilitation include Narcotics Anonymous meetings and intensive out-patient programs. Once in the court system, we may petition for "Drug Court" or other recognized programs that are favored by a particular Judge. A successful abstinence plan also necessitates lifestyle changes such as engaging in healthy activities, diet and spirituality.

Dismissal of Criminal Charges Upon Compliance & Abstinence

Our vast experience handling drug crimes and proactive stance towards these cases can lead to an excellent outcome in the court system and a viable recovery plan. We often utilize a special statute which is found in the Controlled Substance Act (MCL 333.7411) to obtain a dismissal of drug charges which involve use or possession. However, dismissals are not available if the offender is convicted of delivery or manufacturing. Earning a dismissal pursuant to MCL 333.7411 means staying drug free, random drug testing and not getting any other arrests. We have found that courts will impose greater restrictions and requirements upon individuals that cannot manage themselves. For this reason, our strategy when representing drug offenders is to outline a long term drug-free plan.

Relapse Prevention

A reality of drug addiction is the aspect of relapse. Understanding that relapse is a process and having the tools to avoid relapse are essential. A relapse is often discovered when someone who is already in the court system fails a drug test or obtains another drug related criminal charge. This only compounds the existing legal problems and may mean incarceration or other penalties. Approaching the court in these situations requires the offender to implement Plan B. In other words, the offender may need to enter an in-patient program or take additional substance abuse recovery measures. In some cases, we can ask to delay the underlying court cases while the offender is an in-patient. Although not guaranteed, most courts will work with us to schedule court dates after the offender completes a residential treatment program. It is our function to provide the court with the details of our client's relapse prevention plan in these situations. Since the courts know that a relapse is an inevitable aspect of recovery, we can often avoid the harsh criminal sanctions on behalf of a client that experiences a relapse while in the court system.

Drug cases can result in a felony record and prison. Fortunately, the court system has some safe havens which are designed to give a drug user a second chance. The ABDO LAW FIRM can make recommendations and work closely with family members to achieve the ultimate goal of getting a drug problem under control. In addition, proper management of a criminal drug charge may mean avoidance of jail, avoidance of a felony conviction and possible dismissal for eligible clients.

For other information regarding drug crimes, view our post on cooperating with police when charged with a drug crime.