July 2011 Archives

Detroit Free Press Articles Regarding Michigan Drunk Driving Raise Sentencing Issues

July 25, 2011,

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You should read the series in the Detroit Free which began on July 24, 2011 pertaining to drunk driving laws and sentencing in Michigan especially if you are someone that has a few drinks before operating a motor vehicle in the Metro Detroit area. In Michigan, a conviction for drunk driving can occur if the offender's blood alcohol content is .08% or greater, regardless of intoxication. The prosecutor is only required to prove that the offender had operated a vehicle with an illegal blood alcohol content. Ignorance of the law is not a defense. In addition, it is not a defense to a drunk driving case that the offender was sober or able to operate his vehicle safely.

I can say the articles are long overdue which warn offenders that jail is a possible consequence in some jurisdictions for a first offense involving drunk driving (DUI). The articles also cover the financial side of drinking and driving which can run up to $10,000.00 after factoring in attorney fees, fines, court costs, financial responsibility fees, substance abuse counseling and motor vehicle insurance.

On July 24, 2011, the Detroit Free Press reported that "Arrest location could determine the outcome for a drunken-driving penalty." As a criminal defense attorney with representative cases in Macomb and Oakland Counties, I can say that this article touches a nerve with the criminal defense bar. The article fairly depicts Judge Kim Small (48th District Court, Oakland County) as a Judge that will invariably impose at least 2 weeks in jail for a first offender convicted of drinking and driving. In contrast, Judges in Clinton Township (Macomb County) and Clarkston (Oakland County) agree that jail is not always the answer and will use substance abuse counseling extensively when someone is convicted of drinking and driving. In my experience, the imposition of jail is reserved by most Judges for offenders who violate probation or commit repeat offenses. Judge Small is not in this camp.

There is really no way to say if Judge Small is motivated by politics or really believes that she is doing the right thing when she gives a first time offender jail for impaired driving. (See Detroit Free Press article on July 25, 2011, "Oakland County judge among toughest in nation on 1st-time drunken driving offenders." On the political side, she presides in one of the highest net worth jurisdictions in the United States. Her voters may believe that she is keeping them safe and preserving their property values by taking a tough stance on drinking and driving. On the other hand, many of the individuals sentenced in her Court are residents in the community where she presides. Clearly, she gains no votes or political advantage by incarcerating her own constituents.

You would be hard pressed to find any criminal defense attorney that is in favor of strict uniform sentencing that fails to consider the unique case facts and circumstances of the individual who is convicted of a criminal or drinking and driving offense. At least one attorney is quoted in the Detroit Free Press article who will not represent clients who are charged with drunk driving in Judge Small's court.

The real question is whether Michigan should adopt uniform sentencing for offenders convicted of drunk driving. While Michigan has adopted Sentencing Guidelines for felony cases, there are no such guidelines for misdemeanors. The Sentence Guidelines take an offenders prior criminal record along with aggravating/mitigating offense variables into consideration. In addition, the Michigan Sentence Guidelines provide that a Judge may depart from the guidelines sentence range only where there are substantial and compelling reasons to do so. The Michigan Sentence Guidelines favor individualized sentencing with some limitations and confines.

The very nature of the legal system in the United States depends upon fairness and due process, not strict liability, uniform sentencing or mandatory jail for drinking and driving convictions. A private criminal defense lawyer remains the only advocate for the rights of the accused versus the vast financial resources and manpower of the government to prosecute an individual. The very idea of uniform sentencing puts more power in the hands of the government and lawmakers and removes power from individuals and their private attorneys.

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Handling Shoplifting - Retail Fraud Cases in Clinton Township

July 20, 2011,

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On October 18, 2007, the Mall at Partridge Creek opened in Clinton Twp. A sprawling open air complex, Partridge Creek quickly became the premier shopping destination in Macomb County, as it was the first large retail establishment to open since Lakeside Mall in 1976. The facility features a variety of high end chains, including an Apple Store, Nordstrom, Express, and Parisian (amongst others). Typically, large commercial establishments such as Partridge Creek become targets for theft. Usually these high end retailers have in-house loss prevention departments and actively push to prosecute shoplifters.

In Michigan, the crime of shoplifting is prosecuted as an offense known as "retail fraud". The crime of retail fraud can be charged as a criminal misdemeanor or felony, depending upon the dollar amount of property involved. If the value of the property stolen is under the value of $1,000.00, it is a misdemeanor.

What can those being prosecuted for a theft crime (retail fraud) in Clinton Twp. expect? Our office's experience with retail fraud cases in Clinton Township's 41-B District Court is as follows. The 41-B District Court is located at 22380 Starks Drive, Clinton Twp and is presided over by the Honorable Judges Davis, Lucido, and Fuca. Typically these cases can be handled in one appearance, and our goal is always record preservation. First time offenders are eligible for Michigan's delayed sentence law, MCL 771.1. Under this provision, violators will have their criminal record cleared of a retail fraud/shoplifting offense so long as they comply with the terms of their probation. This is particularly important for those searching for jobs or applying to school. A theft crime in the eyes of many employers and educators is indicative of dishonesty, and thus is important to have cleared from one's record.

Often times those being charged with retail fraud are ashamed, afraid, and embarrassed. In many instances people being charged procrastinate to hire an attorney. However, it is advised that those facing theft charges employ the counsel and representation of an attorney immediately. These offenses, especially first offenses, are very manageable. First time offenders in Clinton Twp. are likely looking at the following terms of probation

- 12 month reporting probation
- Attendance of a theft program
- Community service
- Fines and costs

Our office keeps an open mind and a recurring theme from our previous blog about retail fraud is that we understand that people make mistakes. For all retail fraud cases we have three main objectives;

- Eliminate jail time
- Minimize the terms of probation
- Keep the offense off client's record

Our office believes those to be realistic goals when representing clients in the 41-B District Court and always advocates diligently to that end. If you are being prosecuted for retail fraud call the Abdo Law Firm today to set up a free consultation, 586-412-5555

Criminal and Traffic Jurisdiction of the 42-2 District Court, New Baltimore, Michigan

July 20, 2011,

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The 42-2 District Court located at 35071 23 Mile Road, New Baltimore, MI 48065. Judge William H. Hackel III is the presiding Judge for the Court. The Court has jurisdiction to handle traffic tickets which include all civil infraction and misdemeanor violations of the Michigan Motor Vehicle Code. In addition, the Court has jurisdiction over criminal misdemeanor cases which include drunk driving (DUI) and retail fraud. The Court also handles the initial stages of felony cases for purpose of arraignment and preliminary examination. Criminal felony cases are handled in the Circuit Court after preliminary examination.

The Court's physical jurisdiction includes the City of New Baltimore, Chesterfield Township, New Haven and Lenox Township. The water-front City of New Baltimore is located in the heart of Anchor Bay. The 42-2 District Court gets an interesting blend of criminal violations and infractions in connection with water-related activities such as boating while intoxicated, watercraft violations and alcohol related crimes. Chesterfield Township is the largest land mass for this jurisdiction and has several high traffic thoroughfares including Gratiot Avenue, I-94 and 23 Mile Road which net a fair share of drinking and driving (DUI) and traffic tickets. The corner of 23 Mile Road and Gratiot Avenue is a major retail shopping area where incidents such as retail fraud (shoplifting) wind up at the 42-2 District Court.

Our firm has handled criminal, drunk driving (DUI) and traffic matters in the 42-2 District Court. I would say that the goal of the 42-2 District Court is to discourage behavior that threatens the enjoyment of its roads, retail establishments and waterfront community. However, it is my experience that this Court will listen to reason and give most offenders a second chance. This means that our attorneys have negotiated dispositions for our clients to have many first offenses for traffic and criminal matters dismissed. Usually, the offender will be required to earn the dismissal by complying with conditions ordered by the Judge. If the offender does not comply, all bets are off and the offender faces sentence which can include jail and a criminal conviction.

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41-B District Court Lists Points, Fines and Costs for Criminal and Traffic Offenses

July 6, 2011,

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The 41-B District Court is located at 22380 Starks Drive, Clinton Township, Michigan 48038, phone: 586-469-9300. It has jurisdiction to handle civil, traffic and criminal cases arising in Clinton Township, Harrison Township and Mount Clemens. Clinton Township has its own police department while Harrison Township and Mount Clemens are policed by the Macomb County Sherriff's Department. This Court gets a fair share of traffic with M-59 bordering the north end and Gratiot Avenue bordering the east end of its territory. The Court is served by Judge Sebastian Lucido, Judge Linda Davis and Judge Carrie Lynn Fuca.

As a Macomb County law firm, we have practiced extensively in the 41-B District Court and can say that all of the Judges have their own policies and practices. As far as fines and costs for traffic and criminal cases are concerned, the 41-B District Court has a website link which contains a partial list of points, fines and costs. For the most part, the 41-B District Court Judges will impose similar fines and costs. The fine for the traffic offense "impeding traffic" is $160.00. The offense of "impeding traffic" carries 0 points and does not appear on an offender's record. The offense of "limited access speed, 1-5 over" is $120.00 and does not carry any points but will appear on the offender's record. While both offenses carry 0 points, an offense appearing on a driving record can be used to for insurance purposes.

The website does not list fines and costs for many misdemeanors or drunk driving. However, my experience is that the fines and costs for a first offense drunk driving (OWI or DUI) or impaired (OWVI) will be approximately $1,200.00 to $1,400.00. This is not the total cost for a drunk driving offense in the 41-B District Court. Other approximate costs will include probation oversight expenses of $20.00 per month for 1 to 2 years, substance abuse counseling, driver responsibility fees ($2,00.00 for operating while intoxicated and $1,000 for operating while impaired), driver license reinstatement fee, random alcohol testing fees and sobriety monitoring fees. Under certain circumstances, the Court may consider non-reporting probation for a first offender that does not have a substance abuse disorder and is not likely to commit a crime in the future. An attorney can argue to lessen some of the programs and costs which I have mentioned.

Click here for 41-B District Court Home Page

Click here for map to 41-B District Court

Click here for 41-B District Court list of fines, costs at points

Click here for list of all links to all Macomb County District Courts

Click here for map of Macomb County Michigan


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Fireworks that Explode or Leave the Ground are Illegal in Michigan; Offenders Face Criminal Prosecution, ATF Crimes and Lawsuits by Injured Parties

July 1, 2011,

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If you live in Shelby Township, you can see firework displays in residential areas that are on par with the shows sponsored by major cities. This is especially prevalent in the subdivisions with small lakes and retention ponds. On the 4th of July, the homeowners who live around the small lakes and retention ponds engage in a fireworks competition by launching major league shells and Hurt Locker quality explosives that set off car and house alarms.

You would not know by reading the prior paragraph, but Michigan has strict fireworks laws which prohibit most fireworks that leave the ground (rockets) or explode (firecrackers). In fact, Shelby Township has adopted the state of Michigan law on fireworks that allows the use of sparklers, cone and cylinder fountains, snakes and smoke devices with not more than 1.4 grams of pyrotechnic composition per tube. The Michigan State Police say that if it leaves the ground or makes a loud bang, its illegal.

In addition to the local police, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has the authority to regulate fireworks. In this regard, anyone flirting with the commercial grade fireworks without a permit can face serious federal criminal charges for possession of explosives.

In Michigan, the offense for possession of illegal fireworks is a misdemeanor. Our firm has represented clients charged in Macomb County with possession of illegal fireworks. These cases are usually resolved with a period of probation followed by a dismissal upon compliance. However, if a person or child is injured because of a fireworks mishap, the Court will not be sympathetic and the offender could face criminal charges and a possible civil lawsuit by the injured party for monetary damages.

Fireworks are a dangerous instrumentality. It is impossible to make them 100% safe. They cause serious burns, blindness, scars, disfigurement and death. Anyone using legal or illegal fireworks is on notice that they have a duty to the public at large. Anyone injured by fireworks should consult with an attorney.