Michigan Criminal Lawyer Blog

Sentencing is a critical stage of a criminal case. Every defendant is given an opportunity to speak at the time of sentence for a Michigan criminal case. At every sentencing, the attorney for the defendant is afforded an opportunity to speak on behalf of his or her client. This allows the attorney to summarize the positive aspects of the client and make suggestions regarding a client's unique circumstances and background. The Judge will also ask the defendant if he or she has anything to say. I am shocked at the number of people that have nothing to say at this critical stage.

We understand that a client is anxious, and sometimes afraid, at the time of his or her Michigan criminal sentence proceeding. It is the attorney's duty to prepare a client for this critical stage of his or her case.We work with our clients to assist them with a statement which is appropriate to his or her case and can be read at the time of sentencing. At the very least, it will show the Judge that our client is remorseful and has a good attitude. We know that a few words can make an impression on the court. We also may submit character letters or a sentencing memorandum to the court before sentencing.

Here is what we might have a client say at the time of sentencing for a Michigan drunk driving case:

"Your Honor, This has been the worst experience of my life. I am sorry to my family and the Court. I am most sorry to the person(s) that I have injured by my conduct. I will do everything that I can to avoid getting in trouble again. I have quit drinking and now go to counseling and AA meetings. I have learned a lot from my counselor and am following the 12 Step Recovery Program. I have an AA sponsor. I hope that the court will grant probation so that I can continue my counseling, AA meetings, remain working and going to school. I will abide by every term of probation 100%. Thank you for this opportunity to speak."

We also instruct our clients regarding courtroom demeanor and attire. In an extreme case, I represented a client for drug charge in Macomb County who was wearing a white leather jacket which had $$$ signs embroidered in green. I had him remove the jacket before setting foot in the courtroom.

We also recognize that there are situations where it is not appropriate for a client to speak at sentencing. When a client pleads no contest because of possible civil liability or lack of memory, an attorney may advise his client to decline speaking at the time of sentencing since a transcript may be used as a basis for liability in future civil proceedings.

There is a major provision of the Michigan Controlled Substance Act which is a vital tool for Michigan criminal attorneys representing drug offenders. The law is found at MCL 333.7411, also known as "7411" and applies only to persons charged with possession of marijuana, analogues or controlled substances. The law does not apply to persons charged with delivery, manufacturing, selling or trafficking drugs. Our Macomb county criminal defense attorneys have negotiated 7411 for numerous clients charged with "possession" drug crimes in the Michigan criminal courts which has the end result of a dismissal.

Sentencing pursuant to the Michigan Controlled Substance Act pursuant to 7411, allows for a first time offender involving "possession" of marijuana, analogues or controlled substances, such as heroin or cocaine, to have the proceedings deferred without entering a judgment of guilt. The probation terms will require that the offender comply with certain conditions including: remaining drug free, attending counseling and random testing. Upon compliance, the court shall discharge the individual and dismiss the proceedings. There may be only one lifetime discharge and dismissal under this section.

A criminal defense attorney can negotiate a 7411 plea at various stages of a criminal case. For misdemeanor drug crimes, 7411 is negotiated at the district court. However, in felony cases involving possession of drugs like cocaine, it is handled at the circuit court.

We have been representing persons charged under Michigan's Super Drunk law and drunk driving cases (OWI) in Macomb and Oakland County since its inception on October 31, 2010. The legal blood alcohol limit (BAC) for Operating while Intoxicated (OWI) is .08% will remain the same. Under Michigan's Super Drunk law, persons with a high BAC of .17% or greater will face harsh penalties.

Michigan Super Drunk Driving Penalties, High Blood Alcohol Content BAC .17% or Greater

• Hard suspension of license for first 45 days (no driving) and restricted with the requirement of ignition interlock for the remaining 320 days. Individuals who violate their restrictions will obtain another license penalty equal to the above; another 45 days hard suspension and another 320 days on ignition interlock.
• Fine of not less than $200.00 or more than $700.00
• Up to 180 days in Jail, Mandatory 1 year of alcohol/substance abuse rehabilitation
• Driver Responsibility Fee: $1,000.00 per year for 2 years

The Michigan Super Drunk law intends to sort out those with severe drinking problems and punish them accordingly. However, the law cannot accurately conclude that a person who has a BAC of .16% is a lesser risk than the person who has a BAC .17%, and visa versa. However, you can be proactive and will need some case strategy if you are charged with any drinking and driving offense, including prosecution pursuant to the Michigan Super Drunk Law

Hopefully, You Were Cooperative With The Police

If you are ever stopped by the police, you will do yourself a world of good by cooperating. The police will usually place notes in their report regarding your cooperation. Cooperation does not mean volunteering information or sucking up to the cop. Be polite, have your papers in order and stick to the questions which are asked by the officer. You will only make matters worse by arguing or challenging the officer. There may be an in-car and in-custody police video which your lawyer can obtain by demanding discovery. The video may also that a client was cooperative, able to perform field sobriety tests and capable of following instructions. An experienced drunk driving attorney will argue that this type of conduct is more consistent with sobriety, not intoxication or foolishness.

We Recommend that You Request a Second Test, Especially if the Test Results are Close

If you fail to take a breath test or other chemical test, the police may obtain a search warrant for your blood. You should understand that you also face suspension of your license if you refuse the chemical test offered by the police pursuant to Michigan's Implied Consent Law. In addition, you forfeit your right to obtain a second test of your own choice when you refuse the test which is offered by the police. I would implore anyone who has a very low result (.07% to .11%), or anyone whose tests on the low end of the Super Drunk range (.17% to .19%), to request a second test such as a blood test. Your second test may be lower which may justify a lesser charge.

Let Your Attorney Know If You Have Any Witnesses That Can Testify to Your Sobriety

We hope that our clients can produce witnesses who can testify that our client was not intoxicated prior to operating a motor vehicle. I have used witnesses with personal knowledge at trial to contest intoxication or to request a reduction in the charge especially in low BAC cases. At our initial consultation, we may ask for our client to provide written statements from persons that were companions of our client on the date of the incident. A witness may include friends that were at the bar or at a party with our client that can testify that our client was acting sober and coherent. A witness may also include the passenger(s) of our client's motor vehicle that can attest to our client's safe driving.

Begin Substance Abuse Counseling Before Your First Court Date

Many of our clients are asked to begin counseling and/or attend AA meetings if they have a substance abuse problem or are charged with high BAC Drinking and Driving cases which have come to be known as the Super Drunk Driving cases.

If you are charged with a criminal offense or drunk driving and sentenced to jail, you may lose various rights to your government benefits. Specifically, you may not collect Social Security or Supplemental Security Income (SSI) benefits while incarcerated under certain circumstances. Both of these programs prohibit payments to most prisoners. Social Security benefits are suspended while a person is confined in a facility like Macomb Couty jail, or a Michigan prison, or other penal institution for more than 30 continuous days due to conviction of a crime.

In addition to the above, benefits cannot be paid to someone who is confined in an institution at public expense in connection with a criminal case if the court finds that the person is: guilty but insane; not guilty of such an offense by reason of insanity or similar factors (such as a mental disease); or incompetent to stand trial for such an alleged offense.

Also, benefits cannot be paid to someone who, immediately upon completion of a prison sentence for conviction of a criminal offense (which involves sexual activity), is confined to an institution at public expense. The confinement must be based on a court finding that the individual is a sexually dangerous person or sexual predator. However, if a person is not confined in prison or other similar place, benefits may be paid to an eligible individual.

The vast majority of Michigan criminal cases, as well as Macomb County criminal and drunk driving cases, are handled by plea bargains.

1. What is a Plea Bargain?

A plea bargain in a Michigan criminal case is a "deal" made with a prosecutor and defendant's attorney. The defendant's attorney is skilled to seek the best bargain or agreement to a lesser offense or to receive a less severe punishment. In exchange, the defendant will plead guilty pursuant to the agreement and give up his or her right to a jury trial to defend himself against the original crime charged. For example, most first offense Michian Drunk Driving cases (OWI) can be plead down to Operating While Visibly Impaired (OWVI). This plea bargain is quite common and the vast majority of first offense drunk driving cases are resolved in this fashion.

2. What if No Plea Bargain Is Offered?

In some Michigan Courts, there may be a no plea bargain policy, or no reduction policy. Anyone who has been charged with an Oakland County criminal case can tell you that plea bargaining is not always an option. A criminal defendant may be faced with the decision to plead guilty as charged or take his chance at trial. The defendant will have to consider whether the facts are weighed in favor of the police and the defendant's case will actually sound worse to the Judge and Jury if the case goes to trial. In addition, if an injured victim is involved, a defendant may not want the Judge or Jury to see and hear the drama and extent of injury caused to a victim which is attributed to the defendant's drunk driving case. On the other hand, if a defendant pleads guilty, the police are usually not present and the Judge does not usually see and hear all of the aggravating circumstances and graphic details of the case. Michigan crime victims are always notified and allowed to be present and speak at the time of sentencing even if the defendant pleads guilty.

3. At What Stage of A Case is a Plea Bargain Made?

A plea bargain may be made at any time after someone is charged and even during trial before a verdict is reached. In Michigan, a plea bargain is usually discussed at the first pretrial conference at district court. However, the defendant's attorney will want to review all of the police reports and evidence before entertaining a plea bargain. A defendant's attorney has a duty to present all plea bargains and offers to his client. A defendant's attorney should never reject a plea bargain until it is fully explored and explained to his client.

4. Do Plea Bargains Expire?

A plea bargain can expire and you may lose your right to cut a deal. A plea bargain expiration date can be a game that your attorney knows how to play. As long as the expiration of a plea is not mandated by statute or court rule, a plea bargain or offer can remain open as long as the prosecutor is willing to keep it open. This means that in most cases, prosecutors can put an expiration date on a plea to attempt to force you to make a decision. The prosecutor may say that an offer is not available the day before trial, after the last pretrial conference or before any motions are filed. Your attorney may know how to play this cat and mouse game and allow a plea to expire which could result in the prosecutor coming back with a better deal. Of course, it could go bad for a defendant as well. Local defense attorneys have a better instinct of how much room might be left in any criminal or drunk driving plea bargain.

5. How do Attorneys Get Better Deals in Michigan Drunk Driving Cases?

Attorneys consider many relevant variables which may allow us to obtain a plea bargain in a drunk driving case. A case may have valid legal issues such as legality of the traffic stop and/or issues regarding administration of alcohol testing equipment. A client may have witnesses who will testify as to the defendant's sobriety immediately before operating his or her vehicle. I always review the strengths and weaknesses of every case and the benefits and burdens of a plea bargain. A plea bargain may occur at a pretrial conference. In many of my Macomb County drinking and driving cases, I have filed motions and scheduled one or more hearings to attack and weaken the prosecutor's case before trial. This strategy can work if there was an improper traffic stop or if there were errors in the administration of the breath test. When an attorney can procure a plea bargain to a non-drinking offense, such as careless driving, the defendant may want to cut his or her losses and take the deal rather than run the risk of an OWI conviction at trial.

Before entering any kind of plea it is highly recommended that you at least consult with an experienced criminal defense attorney.