Michigan Criminal Lawyer Blog

The Sixth Amendment to U.S. Constitution guarantees that defendants shall "be informed of the nature and cause of the accusation against them." The criminal arraignment is where this Amendment is enforced. A criminal defense attorney can advocate many things on behalf of a person at a Michigan criminal arraignment including: reducing high bonds, limiting bond conditions and strategic scheduling of subsequent court dates

Arraignment is the first stage of a criminal proceeding where the defendant is officially called before a court and informed of the charges in the complaint or other charging document. A defendant may be brought in court for arraignment after being arrested or notified of a pending charge or warrant. At arraignment, the Judge or Magistrate will ask the defendant to enter a plea of guilty, not guilty, or stand mute. In Michigan, the Judge or Magistrate will determine whether the accused will be required to be released only upon payment of bond or allow release of the defendant on his or her own recognizance. A personal recognizance bond does not require the payment of any money unless the defendant fails to appear at his or her court hearings.

A criminal defense attorney plays a vital role at arraignment. For example, we are familiar with the district and circuit courts in Macomb County, Oakland County and Wayne County. We are often able to persuade a Judge or Magistrate to set a lower bond or relax certain bond conditions. For example, if someone is charged with a drunk driving offense (OWI), we may be able to convince the arraigning Judge that our client does not need to be randomly tested as a condition of bond. In cases involving stalking or flight risk, the court may be inclined to impose extreme monitoring which would require a person to submit to Global Positioning Monitor. A criminal defense lawyer at an arraignment in these situations may be able to save his client from these conditions which limits valuable freedom and mobility.

It is at the arraignment where the court will advise a defendant of his right to counsel and allow the defendant to request a court appointed attorney if he or she cannot afford to hire an attorney. Michigan courts have an application for court appointed counsel which includes financial information and resources of the defendant.

Lastly, if the defendant is charged with a felony, the court will schedule the defendant's preliminary examination at the arraignment. In Michigan, a preliminary examination must be scheduled within 14 calendar days following the arraignment (felony cases only). There is no right to a preliminary examination for misdemeanors.

In Michigan, the court may allow a person to waive arraignment for a misdemeanor charge. After arraignment or waiver of the same, the court will schedule a pretrial conference.

There are different statutes of limitations for misdemeanors, felonies and offenses which can carry life in prison such as murder. The Michigan statute of limitations for criminal misdemeanors is 6 years, Michigan Compiled Laws 767.24. If you are charged within the period of 6 years, there is not a statute of limitations issue. However, if you were not notified, you may have your attorney argue for a dismissal based upon several theories including "due process". You may also argue for a dismissal if the case was not authorized for a long period of time after it occurred, such as 2 years, based upon due process issues even though the statute of limitations has not expired. This argument is weak and less effective if you failed to appear in court or made yourself unavailable. However, if the case was not authorized within 6 years, your attorney could file a motion to dismiss based upon the statute of limitations. There is no statute of limitations for murder, criminal sexual conduct in the first degree and terrorism and these offenses may be filed at any time. An indictment for kidnapping, extortion, assault with intent to commit murder, attempted murder, manslaughter, or first-degree home invasion may be found and filed within 10 years after the offense is committed.

There is an interesting statute of limitations for identity theft which is as follows: An indictment for identity theft or attempted identity theft may be found and filed as follows:

a. Except as otherwise provided in subdivision (b), an indictment may be found and filed within 6 years after the offense is committed.

b. If evidence of the violation is obtained and the individual who committed the offense has not been identified, an indictment may be found and filed at any time after the offense is committed, but not more than 6 years after the individual is identified.

Michigan's Implied Consent Law pertains to the chemical test offered by the police when you are arrested for a drinking and driving offense, such as "operating while intoxicated" or "impaired driving: Commonly, the police ask you to take a breath test. You may ask for a second test of your own choosing and expense if you first take the test which is offered by the police. If you refuse the chemical test offered by the police, the police may obtain a search warrant for a blood test and blood will be drawn or you will be transported to a facility, such as a hospital, for a blood draw by a qualified person.

Again, if arrested for drunk driving in Michigan, you will be required to take a chemical test to determine your blood alcohol content (BAC). Under Michigan's Implied Consent Law, all drivers are considered to have given their consent to this test and face sanctions for refusal.

Sanctions for Refusal: If you refuse a test, six (6) points will be added to your driver record license will be suspended for one year. A suspension of a license, or non-resident operating privilege, is automatic for any refusal to submit to the test. This is a separate consequence from any subsequent convictions resulting from the traffic stop or drinking and driving charge. If you are arrested a second time in seven (7) years and again unreasonably refuse the test, six (6) points will be added to your driver record and your license will be suspended for two years. If you refuse to take the test under the Michigan Implied Consent Law, or if the test shows your BAC is 0.08 or more (Operating While Intoxicated) your Michigan driver's license will be destroyed by the officer and a 625g paper permit to drive will be issued until further action by the State of Michigan as to your license.

Appeal Rights: The Implied Consent suspension may be appealed to the Driver Assessment and Appeal Division (DAAD). The request for hearing must be mailed within 14 days of the date of arrest or your operator's or chauffeur's license and vehicle group designation or operating privilege will be automatically suspended without a hearing. You are entitled to have an attorney present for this hearing. However, if you lose at this hearing, you have a right to appeal a first time implied consent suspension to the circuit court where the offense occurred and request a restricted license based upon hardship and need. You may also appeal based upon the merits of the decision of the DAAD hearing officer.

Expunging your Michigan criminal record means that your prior conviction is set aside. If you have a conviction expunged, you are considered not to have been convicted for most purposes. Your conviction can only be used for very limited purposes, such as increasing your sentence if you are convicted of a new offense. An expunged conviction is not supposed to appear on your rap sheet. Even after a case is expunged, the Michigan State Police continue to maintain a non-public record. In addition, there have been circumstances where a case is expunged but continues to show up on the internet by independent companies who compile and market information.

Setting aside a conviction removes a criminal conviction from the public record of the Michigan State Police, and is sometimes referred to as an expungement. The law that allows a person to apply to have a conviction set aside provides that the record be made nonpublic so that any criminal record check, made by someone other than those agencies specified in the law, would reveal no conviction.

Eligibility: A person may apply to have a conviction set aside for any crime except: 1) a conviction of a felony or an attempted felony punishable by life imprisonment; 2) a violation or attempted violation of criminal sexual conduct under MCL 750.520c, MCL 750.520d, or MCL 750.520g; or 3) a traffic offense. A person who has had more than one conviction for any offense cannot apply. A person may have only one conviction set aside. A person who has been convicted of a nontraffic offense that is reported to the Secretary of State may apply to have the conviction set aside, but if the application is granted, the court cannot order the removal of the offense from the Secretary of State's records. A person may apply to have a conviction set aside when 5 years have passed since the date he or she was sentenced for the conviction, as long as he or she was not imprisoned. If the person was imprisoned, he or she may apply to have the conviction set aside when 5 years have passed since being released from the term of imprisonment for that conviction.

You may want to consult with an attorney to determine if you are eligible for expungement and to represent you before the court. Ultimately, your case will be heard in the same court that handled the underlying case. An application will be filed with the court, attorney general, prosecutor and state police. In addition, a mandatory record check must be completed and your attorney will instruct you to obtain fingerprints from a law enforcement agency. The Attorney General of the State of Michigan reviews each application to determine whether it qualifies. Both the attorney general and the prosecuting official are given the opportunity to contest the application at the hearing. In addition, the prosecuting official will notify the victim of a crime and the victim has the right to appear at the hearing on the application and/or to make a written or oral statement. The Michigan State Police receives the application so that it can prepare a report for the court from its records and the records of the Federal Bureau of Investigation as to any pending charges against you (the applicant). The court cannot act upon your application until the Michigan State Police has submitted its report to the court. Hearing Required: The court will schedule the hearing date for you when you file the application. The hearing cannot be held until the court receives the Michigan State Police report required by MCL 780.621(5). Because it can often take a bit of time for the report to be prepared, it will not be uncommon for the court to schedule the hearing to be held on a date several months after you file the application.

On the hearing date, any of the following may happen: 1. The prosecuting official and/or a representative from the Attorney General's Office may attend the hearing to contest the application. In that case, the court will hear what each has to say before making its decision. 2. If neither the prosecuting official nor the attorney general attend the hearing to contest the application, the court will make its decision based on the report from the Michigan State Police and the court's own records. 3. If the charge for which you were convicted was an assaultive crime or a serious misdemeanor, and the victim of that crime attends the hearing and/or provides an oral or a written statement, the court will consider that statement before making its decision. 4. If you do not appear, the case will be dismissed. The hearing will usually take place at the court where the application was filed. The court may require the filing of affidavits and taking of proofs. If the judge determines that your circumstances and behavior from the date of your conviction to the filing of the application warrant setting aside the conviction, and that setting aside the conviction is consistent with the public welfare, the court may enter an order setting aside your conviction.

The process to seek an expungement can be overwhelming and an attorney can provide valuable legal services to avoid any problems.

The following procedure will guide you to search for your criminal history records for expungement, employment/education applications, visa, immigration, personal records check or adoption (fingerprints are required). Individuals requesting their own criminal history receive all data (public and nonpublic):

-If you are a Michigan resident, go to your local Michigan law enforcement agency and ask to be printed on a Michigan Applicant Fingerprint card (RI-8). Complete the card entirely.

-If you are not a Michigan resident but require a Michigan criminal history record check, go to any law enforcement agency in the state where you reside and ask to be printed on a FBI Applicant Fingerprint card (FD-258). In the "Reason Fingerprinted" block of the card write in "Michigan Record Check". Complete the card entirely. Include a cover letter explaining the reason for the fingerprint submission. Requirements are the same as Michigan residents.

-If more than one original certified or notarized response is required, there will be an additional fee of $1.00 each added to the processing fee.

-Provide a return address in block F of the form.

-Submit the card and a $30.00 processing fee in the form of a money order or check made payable to the State of Michigan. You may want to call the State Police to inquire about fee changes!

Mail the above information to:
Michigan State Police
CRD, Identification Section
P.O. Box 30634
Lansing, Michigan 48913
Phone (517) 241-0606

Fax: (517) 241-0866

-Allow 3 to 5 weeks for processing and mail delivery for the Michigan criminal history record search.

-If you require a national criminal history record check for a visa, immigration, personal records or adoption, you must ask the local law enforcement agency to be printed on a FBI Applicant Fingerprint card (FD-258) or a similar card. The card, fee and a letter explaining your requirements must be sent directly to the FBI. Details regarding the FBI requirements can be found at www.fbi.gov. Select the link titled "More Services" and follow the instructions for "Requesting your FBI Identification Record/Rapsheet" or you may phone their office in West Virginia at (304) 625-5590 and speak with a Customer Service Representative.

It is falsely believed that you cannot be charged with drunk driving unless you are over the legal limit. How many drinks are OK before driving? You can be impaired due to consumption of a single drink even though your Blood Alcohol Content (BAC) is under the legal limit.

The Chemical Test Drunk Driving, Blood Alcohol Content (BAC)

Under Michigan Drunk Driving Laws, you are considered to be "PER SE" intoxicated/drunk if your test result BAC (blood, breath, urine) is .08% or greater regardless as to whether you are actually drunk! A BAC result of .08% or greater will support a charge of Operating Under the Influence (OWI). In 2010, Michigan added another law to punish high blood alcohol content cases which has been called the Super Drunk law. Super Drunk offenders who have a BAC of .17% or greater face harsher penalties including no driving for 30 days and the requirement of a restricted driving for 320 days with the ignition interlock device installed on the vehicle.

There are various drink/weight index charts on the internet which give an approximate blood alcohol level for drinking and driving cases. These charts are informative but approximate at best. There are several considerations which the charts do not take into account such as an individual's own tolerances, lapse of time, body metabolism etc.

Impaired Driving

In Michigan, you are considered to be "per se" intoxicated if your BAC is .08% or greater. However, there is no statutory minimum BAC which constitutes "per se" impaired. In other words, a person who has 2 drinks and a BAC result of .04% may be charged with impaired driving in Michigan if the person's driving, conduct and actions is consistent with being impaired due to the consumption of alcohol. The BAC result would be admissible in evidence along with the testimony of the police or witnesses to establish impairment of the driver. The prosecutor will argue that even a low BAC results in diminished responses/impulses/actions compared to someone who did not drink anything at all.

Operating While Intoxicated Due to Medications

In Michigan, you may also be charged with operating a vehicle while intoxicated or impaired if you have taken medications even though the medications were prescribed by a doctor! Again, if the medications cause you to be impaired or intoxicated, the police or witnesses may testify as to your condition and blood test results can used against you at trial. Legal prescriptions such as pain killers, sleeping pills and various psychological medications contain warnings which must not be ignored and the warnings may be admissible in evidence! In my opinion, the legislature will adopt specific laws to cover driving under the influence of prescribed medications. It is just a matter of time.