June 2011 Archives

Probation: Modification of Conditions or Early Termination In Macomb County District and Circuit Courts

June 30, 2011,

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In Michigan, when an individual is sentenced for a crime, the Court may place the person on probation for a specified term. The maximum term of probation that may be imposed for a misdemeanor is 2 years and 5 years for most felony cases. All persons convicted of a felony are monitored by the probation office assigned by the Circuit Court. In Macomb County, the probation department is located at 32 Market Street, Mt. Clemens, Michigan. Some of the District Courts, including the 40th District in St. Clair Shores, the 38th District in Eastpointe, the 41-A District which covers Sterling Heights and Shelby Township, the 41-B District in Clinton Township, have their own probation departments.

Typically, the terms of probation after sentencing include regular meetings with a probation officer, alcohol testing, drug testing, and counseling. Probation can be disruptive to one's daily routine and compliance with numerous conditions can interfere with home, school and employment.

Our firm receives calls almost daily from clients who are on probation and want to get out of the system. I find myself using a line from the movie Jerry Maguire when someone calls our law firm and wants to get off probation; "HELP ME HELP YOU." The following will explain what I mean.

Our firm will go to bat for the person who has substantially complied with the terms of probation. A probation order can only be modified or amended by the sentencing Judge. This means that a motion and a hearing must be scheduled to request relief from probation conditions. It is up to the client to supply positive information which will be included in a motion and advocated at a hearing. Your probation officer may be your best witness at a hearing to modify probation. A client wishing to get out of the system must impress the probation officer by being punctual, completing all programs and having a good attitude. Don't be the person who is late for probation meetings, fails drug tests and gives the probation officer a hard time and then expect the probation officer to get on board with your plight to have your probation modified. Remember the movie Jerry Maguire, life improved for the aspiring pro football player (Cubba Gooding, Jr.) when his attitude improved.

We usually like our clients to have served at least ½ of the total term of probation before we will file a motion to terminate probation. In other words, if someone gets two (2) years of probation, a motion to terminate probation may be considered after one (1) year of compliance. The Court may entertain outright termination of probation, amending probation from reporting to non-reporting or modification of conditions.


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BUI: Boating Under the Influence, Operating a Watercraft, Jet Ski or Sail Boat While Drunk or Impaired In Macomb County

June 29, 2011,

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Lake Saint Clair, a major border along the eastern side of Macomb County, is a popular destination for boating, hunting (waterfowl) and fishing for many Metro Detroit residents. The shoreline of Macomb County, including St. Clair Shores, New Baltimore and Harrison Township, are dotted with marinas, docks, parks and restaurants. Lake Saint Clair has one of the greatest number of recreation watercraft registrations in the United States.

The Macomb County Sherriff's Department, along with the United States Coast Guard, patrol Lake Saint Clair to insure compliance with State and Federal laws.

In Michigan, a person who is caught operating his boat, watercraft or jet ski while intoxicated or impaired will face criminal charges. These laws are similar to the drunk driving laws which pertain to motor vehicles. The jurisdiction for a case will depend on the location of the violation in proximity to the shoreline where the offense occurred. A person charged with operating a watercraft while intoxicated or impaired could be prosecuted in the 42-2 District Court in New Baltimore, the 41-B District Court in Clinton Township (which has jurisdiction for offenses which occur in Harrison Township) or the 40th District Court in St. Clair Shores.

A person who operates a boat or personal watercraft with a blood alcohol concentration of .10% or greater for boating may be charged with a watercraft drunk driving offense. A person may be charged with operating a watercraft while impaired if his blood alcohol concentration is .07% to .09%. Felony charges could be imposed if the incident results in a serious impairment of a bodily function or death.

A first offense for operating a watercraft while drunk is a misdemeanor which carries penalties of up to 93 days in jail, 45 days community serviced, and a fine up to $500.00, plus court costs. The court may also order that the suspension of boating privileges. The penalties for a second offense within 7 years after being convicted of a first offense are increased to a maximum penalty of 1 year in jail and mandatory suspension of boating privileges for 1 to 2 years.

Our firm has represented many persons charged with watercraft violations. Most of the time, the person charged with a watercraft violation is someone who is responsible and is looking for a day of recreation and relaxation. Unfortunately, alcohol can ruin an otherwise good time. The annual event, Jobbie Nooner, where boaters converge at Gull Island, often results in watercraft violations involving alcohol.

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

June 19, 2011,

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In this 3 part series, I describe different scenarios and possible outcomes for domestic violence cases in Macomb and Oakland County. When our attorneys get a call for a domestic violence case, we know that the incident involves a relationship or marriage. Domestic violence cases also arise when an assault occurs between siblings or between parents and children. There is strong public policy associated with domestic violence cases in Michigan which places a great deal of pressure upon law enforcement and the courts. When someone is charged with domestic violence, the government takes over the case, the court can enter a no-contact order and there are numerous obstacles to getting the charge dismissed even with the victim's consent. The penalties and stigma associated with a domestic conviction are huge.

Most domestic violence investigations or charges are initiated when a spouse or girlfriend calls 9-1-1 and reports that they were physically assaulted. A case can also be initiated when the person who was allegedly assaulted contacts the police within a few days after the incident. The police will take a statement and photographs if there are any visible bruises or injuries. The police may arrest the suspected party based upon the statement of the alleged victim or contact the suspect to for an interview. In most cases, the police will press charges even if the suspect denies the incident or claims self-defense.

A person suspected of domestic violence should refrain from making a statement to the police. First of all, the person making the statement is probably in an angry and emotional state of mind. This rarely lends itself to a rational statement. Second of all, the suspected party may admit to incriminating conduct such as intoxication or an argument which can be used against the suspect at trial. There is also the risk that the police will write a report which misinterprets or is contrary from the suspect's statement. Lastly, most of our clients charged with domestic violence are first time offenders who have never been charged with a crime and do not comprehend law enforcement interrogation tactics. For these reasons and more, our law firm routinely advises our clients to exercise their 5th Amendment right to remain silent, hire a lawyer and have the lawyer contact the law enforcement agency.

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

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

Retail Fraud - Shoplifting Cases In the 41-A District Court, Sterling Heights, Utica and Shelby Township, Michigan

June 10, 2011,

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The M-59 corridor in the City of Sterling Heights has several retail establishments, shopping centers which include Lakeside Mall. The Lakeside Mall gets its fair share of shoplifters (retail fraud offenders) with several major retail department stores that include Macy's, Sears, JC Penney and Lord and Taylor. Shelby Township and Utica are home to several retail chains on the north side of M-59 which include Gander Mountain, Art Van Furniture, Borders, Best Buy, Costco and Sam's. In Michigan, the crime of shoplifting is known as retail fraud. This blog will focus on retail fraud cases which our firm handles in the 41-A District Court in Sterling Heights, Utica and Shelby Township.

Hire a lawyer immediately if you are accused of retail fraud.

If a someone is caught shoplifting (charged with misdemeanor retail fraud second or third degree), the police are called to the scene and the person is arrested, booked and released on bond until a court date is scheduled. However, most cases which involve shoplifting at the Lakeside Mall in Sterling Heights do not involve the immediate arrest of the suspected person. Our experience is that the person caught shoplifting (at Lakeside Mall) will be released after identification is obtained. Approximately 30 days after the incident, the person will be notified by mail to appear at the Sterling Heights Police Department for intake and booking. This process saves the police department valuable law enforcement man hours which would otherwise be imposed each time that an officer was deployed to formally arrest someone for shoplifting. However, if the charge involves retail first degree (felony punishable by up to 5 years in prison), the arrest and court process will occur according to felony rules. Do not hesitate to hire a lawyer immediately if you are accused of retail fraud.

Penalties for retail fraud

Retail fraud is a crime of dishonesty which could result in a permanent criminal record. Thus, a person who faces retail fraud charges should hire a lawyer as soon as possible even though the case may not formally be in the system for approximately 30 days. A lawyer can provide invaluable sound legal advice and a strategy which could keep result in a dismissal of the offense, depending upon the circumstances and the prior criminal record of the offender. The penalties for retail fraud are:

Retail Fraud First Degree: If the value of the merchandise is $1,000.00 or more, the punishment is up to 5 years in prison and/or fine up to $10,000.00, or 3 times the value of merchandise.

Retail Fraud Second Degree: If the value of the merchandise is $200 but under $1,000.00, the punishment is up to 2 years in prison and/or fine up to $2,000.00, or 3 times the value of merchandise.

Retail Fraud Third Degree: If the value of the merchandise is under $200, the punishment is up to 93 days in jail and/or fine up to $500.00, or 3 times the value of merchandise.

In almost every case, a person who is charged with retail fraud is required to pay the retail store for cost recovery. Cost recovery can be demanded as civil damages by the merchant. Michigan Law provides that a person who commits an act for which he or she could be charged with retail fraud is liable to the merchant for the full retail price of un-recovered property or recovered property that is not in salable condition, and civil damages of 10 times the retail price of the property, but not less than $50.00 and not more than $200.00.

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Zero Tolerance for Bomb Threat Cases In Michigan

June 7, 2011,

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Bomb threats are a serious matter as recently illustrated in a Macomb Daily article, "Shelby Township man arrested in bomb threat at Mount Clemens DuPont plant." In that particular case, a 43 year old man apparently made a bomb threat at a DuPont plant and said, "If you care about your employees, get them out. There are two bombs set to go off." Although no bomb was found, the person was still charged. Bond was set at $10,000.00 and a preliminary examination is scheduled in the 41-B District Court in Clinton Township on June 13th.

In Michigan, bomb threat cases are felonies which fall under the category of false reporting or crimes/threats and can be punished by up to 4 years in prison and/or $2,000.00 fine pursuant to MCL 750.411a. A second conviction for making a bomb threat can carry up to 10 years in prison.

The financial cost of a bomb threat is enormous given the need for deployment of specialized law enforcement equipment and personnel along with the cost of business interference. These costs can be imposed against a person convicted of making a bomb threat in Michigan. First of all, the convicted person can be ordered to pay the state or local government for the cost to respond to the false threat. This can include all police and emergency responders which become involved to inspect the premises and provide security. In addition, the convicted person can be ordered to pay the victim restitution for the costs associated with the false threat. According to the above mentioned Macomb Daily article, the DuPont plant was forced to close while the bomb threat was investigated. Under the circumstances, the Company would be entitled to request restitution for costs and losses associated with the temporary shutdown. The insurance company for the victim may also be a party who would be able to claim restitution.

A Judge would more than likely require a person convicted of making a bomb threat to undergo a psychiatric examination and be required to attend counseling. In addition, the Judge could order global position monitoring so that the offender's movements could be tracked.


Part 5 of 5: Michigan Driver's License Restorations; The Decision of the Hearing Officer and Appeal Rights

June 3, 2011,


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If a revoked driver (habitual violator of Michigan drunk driving laws) meets the burden of proof by clear and convincing evidence and wins at the first Driver's License Appeal Division (DLAD) hearing, he or she will be allowed to drive a vehicle subject to restrictions and with an ignition interlock device. The driver will be able to drive on a restricted basis during certain designated hours or for a designated purpose, such as employment and/or education. In addition, the ignition interlock device must be installed for a minimum period of 1 year on the vehicle which is operated by the person. The ignition interlock is an alcohol monitoring device which requires breath samples of a person while one is operating a vehicle. The purpose of the ignition interlock device is to measure the bodily alcohol content (BAC) of an intended driver and to prevent the motor vehicle from being started if alcohol is detected.

If a revoked driver loses at the DLAD hearing, he or she will have 2 options: wait until he or she is eligible for another hearing before the DLAD (which is usually 1 year) or appeal the decision by the DLAD to the circuit court. Neither option is as satisfying as winning, yet there is hope that the person will improve his or her case for the next hearing and get back on the road.

If the party feels that the decision by the DLAD was erroneous, he or she may file an appeal in the circuit court in the county where the person resides. The circuit court judge cannot hear any new evidence and is required to limit the appeal based upon the transcript and evidence submitted at the DLAD hearing. A circuit court appeal can occur no sooner than 60 days after the DLAD hearing because a copy of the transcript must be ordered and provided to the circuit court judge. The DLAD is represented at the circuit court appeal by a representative from the Michigan Attorney General's Office. A circuit court judge can overturn the decision by the hearing officer if it is: not supported by competent, material and substantial evidence on the whole record, and/or, arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion. In addition, a circuit court judge may deny your appeal or remand your case to the DLAD for an earlier hearing.

Continue reading "Part 5 of 5: Michigan Driver's License Restorations; The Decision of the Hearing Officer and Appeal Rights" »

Part 4 of 5: Michigan Driver's License Restorations, The Hearing at the Driver License Appeal Division

June 3, 2011,

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The final step in the Michigan driver license restoration process is the appearance at the hearing with your lawyer. The revoked party will be required to provide sworn testimony before the hearing officer. We like to meet with our clients at least 15 minutes prior to the hearing to review pertinent questions and become comfortable with the surroundings.

The hearings are held in many locations throughout the State of Michigan. Our firm regularly appears at the DLAD hearing locations in Clinton Township, Livonia and Port Huron. The hearings held at the Livonia DLAD are "live" hearings while the hearings in Port Huron are closed circuit video conference hearings. A party can present additional documentation-evidence on the day of the hearing at the Livonia location but not at the Port Huron location. All evidence must be submitted before the hearing at a location which employs video conferencing.

A hearing will be held in a small office with your attorney and a hearing officer in attendance. The hearing officer is an attorney who works for the Michigan Secretary of State. For all purposes, the hearing officer is the judge and jury. It is our job to present all of the evidence and testimony in an organized and persuasive manner. In addition, a closing argument to sum up the evidence and testimony presented at the hearing is often made after all of the proofs are presented. The hearing officer cannot award a restricted license to someone unless the burden of proof is satisfied by clear and convincing evidence.

Continue reading "Part 4 of 5: Michigan Driver's License Restorations, The Hearing at the Driver License Appeal Division" »

Part 3 of 5: Getting Organized and Reviewing Questions Prior to the Hearing Before the Michigan Driver's License Appeal Division

June 3, 2011,


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ATTORNEY - CLIENT CONSULTATION, CASE PLANNING:
When we meet with someone for the first time to discuss a new license restoration case, we take our time to review their substance abuse history, driving record, counseling history, lifestyle changes and plan for continued sobriety. Each person has distinctive circumstances and we handle driver license restorations on a case by case basis. Given that each driver license restoration case is one-of-a-kind, we may decline to represent a client who does not have a sufficient period of sobriety or advise the person to make specific improvements before we will go forward. If necessary, we may advise our clients to become involved in a relapse prevention program, attend AA or counseling for a few months before he or she obtains a substance abuse evaluation and other documentation.

After being retained for persons that we feel will meet the burden of proof, we will advise our client to get a substance abuse evaluation, drug test, character letters and other important documentation. In addition, we provide our clients with a template for the required character letters and recommend local licensed counselors who are best suited to provide the required substance abuse evaluation.

SCHEDULING A DLAD HEARING:
Our job is to provide the documentation to the Driver License Appeal Division which will be used as evidence in the case and prepare our clients for the actual hearing stage of the case. In my opinion, the documents which are strategically selected provide an organized foundation for the hearing that will follow. When we receive all of the requested documentation/evidence, we will request a hearing. It usually takes 30 to 60 days for our clients to gather all of the required documentation.

The hearing date is scheduled by the DLAD from 4 to 6 weeks after it is requested. A notice of the hearing date will be provided by mail to the petitioner and attorney.

Continue reading "Part 3 of 5: Getting Organized and Reviewing Questions Prior to the Hearing Before the Michigan Driver's License Appeal Division " »

Part 2 of 5: Initial Preparation, Documents and Planning for a Michigan Driver's License Appeal Division Hearing

June 3, 2011,


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Our attorneys place a great deal of emphasis on the planning and preparation stage of a Michigan driver's license restoration case. We prepare a driver's license restoration case based upon several factors including one's substance abuse history, diagnosis and prognosis. A large part of planning is organizing the evidence and prioritizing documents which will be submitted to the Driver's License Appeal Division (DLAD). The evidence which is utilized will vary depending on whether a person is diagnosed as an alcoholic/dependent or an abusive drinker. It is important that a person understand that all evidence submitted for the purpose of a DLAD hearing, including all testimony, will be retained and recorded by the DLAD, and may be used in future hearings.

We are often able to find past documentation that may seem useless such as random alcohol/drug testing results, prior substance abuse evaluations or verification of counseling. On the other side, inappropriate documents or letters which are submitted to the DLAD can cast doubt on the case and devastate any chance of a license restoration for several years. Initially, our firm will ask for certain documentation to prepare for a DLAD hearing, including the following:

1. MASTER DRIVING RECORD:
We need to obtain the lifetime history of drinking and driving cases along with all prior substance abuse offenses of the person seeking a license restoration. Therefore, obtain a master driving record from a Michigan Secretary of State office along with any other documentation pertaining to past criminal convictions which involve alcohol or drug crimes before you meet with an attorney. The DLAD will question a revoked person about all prior substance abuse convictions, including non-driving offenses such as minor in possession of alcohol (MIP) or possession of marijuana.

2. OTHER DOCUMENTS: Save all documentation from prior court cases, probation departments, counseling records, AA sign-in sheets and letters from the Secretary of State. We are usually able to find positive documentation which we will use as evidence in one's case.

3. PRESCRIPTION MEDICATIONS:
If you take prescription medications for sleep, depression or pain, we will ask for you to obtain a letter from your doctor regarding your ability to drive safely upon use of these medications.

4. SUSTANCE ABUSE EVALUATION:
A substance abuse evaluation is required and is the cornerstone of a DLAD hearing. The evaluator is required to include many variables relating to a person's substance abuse history, diagnosis and prognosis for continued sobriety. The evaluator must also comment as to whether the offender's likelihood for continued sobriety is poor, fair, good or excellent.
The evaluator may perform some tests before the report is finalized. One of the tests utilized is called the Michigan Alcohol Screening Test (MAST). Click here for a look at the MAST testing questions.

5. DRUG SCREEN: A 10 panel drug screen is also required for a DLAD hearing. The evaluator is often is able to obtain a urine sample and provide the drug screen along with the Substance Abuse Evaluation.

Part 1: Michigan License Restorations, Building A Mountain With Positive Evidence
Part 2: Michigan License Restorations, Initial Preparation
Part 3: Michigan License Restorations, Getting Organized, Reviewing Questions
Part 4: Michigan License Restorations, The Hearing
Part 5: Michigan License Restorations, The Decision By The DLAD and Appeal Rights

Part 1 of 5: Introduction; Michigan Driver's License Restorations, Building a Mountain of Positive Evidence

June 3, 2011,

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This is part 1 of a 5 part series which is dedicated to the topic of driver's license restoration cases in Michigan. In this extensive series, I provide insight as to how our attorneys build a strong foundation of positive evidence which will moderate or diminish the bad choices that resulted in a license revocation. In Part 2, I explain some preliminary matters and documents which are necessary in a driver's license restoration case. In Part 3, I discuss the stage where we will organize documents, schedule the hearing and review pertinent questions which will be asked at the hearing. In Part 4, the hearing stage of a Michigan driver's license restoration case is examined. In Part 5, I discuss the possible decisions by the hearing officer and the appeal option to circuit court for a person who loses a Driver License Appeal Division (DLAD) hearing. Our Macomb County lawyers are able to provide this information after many years of representing clients before the DLAD who have a license revocation due to multiple drinking and driving convictions.

The process to restore a license in Michigan is complicated. Most of our clients have waited several years before taking the first step in the Michigan driver license restoration process. In addition, we know that they have paid thousands of dollars to the courts, attorneys, substance abuse counselors and to the State of Michigan. Many others avoid the appeal process altogether because of misconceptions, financial problems or other obstacles. All too often we meet clients who are eligible for a Michigan license restoration but they continue to drive illegally resulting in extended periods of revocation. This is why a person who is eligible for a hearing before the DLAD should consult with a qualified lawyer to discuss his or her rights. Often, our firm will take on proactive clients several months before the eligible hearing date. We use this time to provide a client with relevant advice, planning and a strategy so that we are well prepared when the minimum revocation period expires.

Continue reading "Part 1 of 5: Introduction; Michigan Driver's License Restorations, Building a Mountain of Positive Evidence" »