September 2011 Archives

Imposition of No Contact Orders for Persons Charged with Michigan Criminal Offenses; Assault, Stalking, Domestic Violence

September 26, 2011,

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A NO CONTACT ORDER can be ordered in virtually any criminal case including retail fraud/shoplifting cases. In Macomb County, courts will invariably enter a NO CONTACT ORDER against an offender as a bond condition or upon conviction of retail fraud/shoplifting at the time of sentencing. In Michigan, courts routinely impose a NO CONTACT ORDER as a condition of being released or bonded for personal criminal offenses such as domestic violence, stalking, sex crimes and assault. For these offenses, the offender is prohibited from contacting the alleged victim.

Contact, for purpose of NO CONTACT ORDERS, is broadly defined to embrace any direct or indirect contact or communications by the offender or by using third parties to contact the victim. Contact also includes the use of all electronic media (phone, fax, cell phone, computer) to make contact. Therefore, contact can occur if the offender sends a text or email, posts something on the internet or uses a friend to make a phone call. A violation of the NO CONTACT ORDER may result in revocation of bond and jail.

An offender may unwittingly be the victim of a NO CONTACT ORDER violation when the offender responds to an email or text message from the victim or someone associated with the victim. It may very well be a violation even though the offender did not initiate the contact. Anyone who is under the jurisdiction of a NO CONTACT ORDER must be vigilant and prudent.

A NO CONTACT ORDER may be lifted under certain circumstances. In many domestic violence and assault cases, the offender and the victim may want to maintain their prior relationship. The offender cannot just start calling the victim or return to the residence without court approval. The single best way to insure that a NO CONTACT ORDER is removed correctly is to have an attorney file a motion and schedule a hearing. Motions are legal written requests made to the court. The motion is scheduled for a hearing before the court and the victim will be notified of the hearing date.

An attorney plays a vital role at a hearing to lift a NO CONTACT ORDER. A criminal defense attorney knows that the court's priorities will be for the preservation of public peace and the protection of the victim. The attorney may need to obtain proof regarding the offender's involvement in a substance abuse or anger management program. The victim will also be notified and questioned by the Judge at a hearing to remove the NO CONTACT ORDER. If the court feels that the victim was threatened or has any reservations about the well being of the victim, the NO CONTACT ORDER will remain in force.

Part 1: Management of Felony Criminal Cases In Macomb County

September 16, 2011,

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Our attorneys have handled numerous felony offenses including all of the top 50 felony cases in Michigan. Without a doubt, we know that a person who is investigated or charged with a criminal felony offense will feel agony and despair during this process. I have prepared this blog to dispel some of the myths about felony cases and to clarify some of the realities. In Part 2, I explain various possible outcomes for felony cases based upon our firm's experience in the Macomb County Courts.

According to Wikipedia, a felony is generally considered a crime of high seriousness. In the federal system, a felony is a crime punishable by death or imprisonment in excess of one (1) year. If punishable by exactly one year or less, it is classified as a misdemeanor. The classification for felony and misdemeanor offenses is similar in Michigan. However, Michigan laws contain offenses which are known as "high court misdemeanors" that can carry up to two (2) years imprisonment.

The word "felony" can make an otherwise healthy person feel sick and conjure up images of concrete prisons with barbed wire fences. A person charged with a felony may experience disturbing physical and psychological symptoms including upset stomach, headaches, restlessness, depression, dizziness, confusion, isolation and panic. Once charged with a felony, an individual may automatically think about the worst case scenario until he or she has a consultation with an experienced criminal defense lawyer. I like to compare this to a person who thinks he is having a heart attack until he goes to the doctor only to discover that he has indigestion.

After the first consultation, an experienced criminal defense lawyer is often able to set realistic goals and provide a fairly accurate prediction regarding the outcome of the case. However, attorneys are bound by the Professional Code of Responsibility. While an attorney may make a prediction or render an opinion, he or she is prohibited from making a guarantee regarding the outcome of a criminal case. This means that an attorney cannot say, "I guarantee that you will not go to jail" or "I guarantee that that the charges will be dismissed." However, an attorney may provide a prediction or estimate regarding the outcome of a case based upon prior experience.

Almost anyone charged with a felony is mostly concerned about their criminal record and the possibility of jail time. First of all, let me say that a felony conviction does not automatically mean jail time. In fact, most felony crimes can be managed where the person will be placed on probation. This is especially true for offenders who do not have any prior criminal record. Similarly, based upon our experience, our firm knows when there is a good chance that a felony can be reduced to a lower offense or a possible misdemeanor to avoid the stigma of a felony conviction. Lastly, we are familiar with various Michigan laws that can be used to gain dismissals of felonies under certain circumstances as I will discuss in Part 2. Of course, every client has a Constitutional right to a trial pursuant to the 6th Amendment and should never plead guilty to an offense which he or she did not commit.

You should retain a lawyer if you are the subject of a criminal investigation or believe that there is a felony warrant for your arrest. An attorney can provide prudent legal advice and proactive legal services in many respects including:

-Advising a client to remain silent or consenting to a police interview
-Arranging a court date to avoid an arrest on a felony warrant
-Gathering witness information before charges are filed
-Negotiating the case before charges are filed
-Hiring a private investigator or forensic expert (examine computer, bank activity)
-Being present at arraignment to address bond and release of a client

Click here for Part 2: Management of Felony Criminal Cases In Macomb County


Continue reading "Part 1: Management of Felony Criminal Cases In Macomb County" »

Part 2: Management of Felony Cases In Macomb County

September 16, 2011,

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There are many possible outcomes for a criminal felony charge which will depend upon numerous variables that an attorney will need to examine. Since the great majority of our business is in Macomb County, Part 2 of this blog will focus on recent felony cases which our firm has handled in Macomb County, Michigan.

A felony case may be resolved at any stage of the proceedings prior to a finding or plea of guilty. The criminal proceedings which are relevant to felony cases in Michigan are as follows:

1. Criminal Investigation
2. Warrant, Arrest and Booking
3. Arraignment (district court)
4. Preliminary Examination (district court)
5. Arraignment (circuit court)
6. Pretrial Conference, motions, negotiations, evidentiary hearings
7. Trial (circuit court)
8. Pre-sentence Investigation (Conducted by Probation Department)
9. Sentence

There are two (2) recent cases which come to mind that our firm was able to resolve during the criminal investigation without felony charges.

Sterling Heights: The first case involves a person who had authority to handle her friend's financial affairs. The friend died and his family members were seeking criminal charges against her for larceny and/or embezzlement as a trustee. However, our firm spoke with the detective regarding her relationship and explained that she had authority to pay bills and have access to the finances of her friend. Criminal charges were not filed.

Roseville: A landlord contacted our office about a possible criminal charge which was being investigated the Macomb County Prosecutor's Office. Apparently, the landlord took a deposit on a rental property but rented out the property to another person after difficulty with the person who made a deposit. Although there were many misunderstandings in this case, our recommendation to our client was to provide a total refund of the deposit to avoid a felony charge, legal fees and potential guilty verdict.

Here are some examples of cases which our firm resolved at the preliminary examination stage:

Shelby Township: An exceptional result was achieved for our client who was charged with home invasion in the 41-A District Court. Since this case involved a victim of a crime, our client needed to show appropriate remorse. In addition, we were able to make full restitution to the victim for before the Court date. The felony charge was reduced to a misdemeanor which will be dismissed if our client stays out of trouble for one (1) year.

Clinton Township:
Our client was charged with felony drunk driving (3rd offense). In 2010, we were able to reduce the drunk driving felony, which could carry a maximum of 5 years in prison, to a misdemeanor offense in the 41-B District Court with no jail. The Court was impressed with the fact that our client was proactive by attending a substance abuse counseling program and several AA meetings.

Warren: In 2011, our client was charged with resisting and obstructing after he consumed various drugs and was confronted by the police. On the date of the preliminary examination in the 37th District Court, we negotiated a reduction of the felony to a misdemeanor, attempt fleeing and eluding. The court agreed to delay the sentence and dismiss the offense if the person complies with the terms of his probation which include random drug testing.

St. Clair Shores: Our client was a precious metals dealer who was charged with tampering with evidence, a felony which can carry up to 4 years in prison. The prosecutor's case, along with our possible defenses, had some weakness. We eventually negotiated a misdemeanor plea in the 40th District Court with no probation; thereby meeting our client's goal to avoid a felony conviction.

All of the above mentioned cases could have resulted in felony convictions. However, in each of these examples, legal strategies were employed to reach desired goals. An experienced criminal defense lawyer will know how to make opportunities for his or her client.

As I mentioned in Part 1, there are special provisions of law available to criminal defense lawyers which can result of dismissals of felony cases. Youthful offenders who are charged with a felony who are age 17 but under age 21, may be eligible to have a felony dismissed pursuant to the Holmes Youthful Trainee Act (HYTA). In addition, first time offenders of felony drug charges (heroin, cocaine, analogues, ecstacy) involving "possession" may be eligible to petition for alternative sentencing pursuant to MCL 333.7411 which will result in dismissal upon compliance with a term of probation. Our firm has utilized both of these provisions of law in every Macomb County Court.

Sometimes the options for a person charged with a felony are limited by the person's criminal history or facts of the case. It is always more challenging for an attorney to overcome obstacles such as a client with a prior felony record or extensive criminal history or when crime involves a victim who is injured, or a minor child. There are also policy cases in Macomb County where the prosecutor's office is precluded from negotiating a plea bargain absent countervailing reasons to relax their policy and grant a deviation.

Our firm has managed several felony cases where the criminal charges could carry life in prison such as terrorism (40th District Court - St. Clair Shores), armed robbery (37th District Court - Warren) and criminal sexual conduct in the first degree (37th District Court - Warren). Plea bargains were achieved in the above mentioned cases for reduction of the charges and avoidance of prison because the odds were against us in winning at trial. These results did not just fall from the clear blue sky but were achieved after the cases languished in system, hearings were scheduled and fierce negotiations transpired.

Management of a felony may mean seeking a reduction in the charges, an agreement regarding sentencing, obtaining a deviation of policy from the prosecutor's office or all of the above. These options, along with trial, should be explored by the criminal defense lawyer.

Continue reading "Part 2: Management of Felony Cases In Macomb County" »

Underage Drinking and Driving in Macomb County, Myths and Facts

September 15, 2011,

cop car.jpgMYTH #1: Underage drivers cannot be charged with a DUI unless they are above the legal limit.

FACT: False! Underage drivers on the road with ANY presence of alcohol may be charged with a drinking and driving crime. This type of charge is known as a zero tolerance. Repercussions can be severe, including;

- 30 day driver's license suspension,
- $125.00 reinstatement fee,
- 4 points on master driving record,
- Community service,
- Court fines,
- Probation,
- And state fees of $500.00 for 2 years.

Repeat offenders typically face stiffer penalties. This includes a longer license suspension, additional fees, and additional points. Further, when underage drivers are above the legal limit they can be charged with an OWI. OWI's, as we have explained in detail, can be onerous in terms of the subsequent fines, punishment, and probation.

If you find yourself as a minor being charged with a drinking and driving offense seek legal representation. Our office has specialized in drinking and driving crimes for over 30 years. With each of these cases we always seek a sentence that is most favorable for our clients. Our office will always fight to eliminate jail time and advocates terms of probation that will be manageable for our clients. Do not let these cases linger, retain aggressive legal assistance and fight the charges.

MYTH #2: You can only get charged with an MIP for drinking alcohol.

FACT: False! Mere possession alcohol is sufficient to be charged with an MIP. Further, you can be charged with an MIP for transporting alcohol in your car (even if it's the passenger's). The meager act of holding a beer without taking a sip is sufficient for someone to be charged with a MIP. Further, we would like to remind you that the following is illegal;

- Allowing an intoxicated person to use your vehicle,
- Purchasing alcohol for anyone under 21,
- Providing a fake identification to anybody under the age of 21,
- Allowing minors to use alcohol in your home,
- And providing alcohol to minors.

Once again, we recommend anyone being charged with an MIP retain the help of an attorney. Especially when it is a first offense, our office usually can procure an arrangement where the charge will come off the client's record. With these cases we aim to preserve the records of our young clients, keep them out of jail, and minimize any terms of probation.

Continue reading "Underage Drinking and Driving in Macomb County, Myths and Facts" »

Part 1: First Offense Drunk Driving Cases In Macomb County, Michigan

September 7, 2011,

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This blog will focus on first offense drunk driving (DUI) cases which our firm handles extensively in all of the district courts in Macomb County, Michigan including the 38th District (Eastpointe), the 39th District (Roseville, Fraser), the 40th District (St. Clair Shores), the 41-A District (Sterling Heights, Shelby Township, Macomb Township, Utica), the 41-B District (Clinton Township, Mt. Clemens, Harrison Township), the 42-1 District (Romeo, Washington Township) and the 42-2 District (New Baltimore and Chesterfield Township).

A life can spin out of control the moment a police officer says, "you are under arrest for drunk driving." For most of our clients that are charged with drunk driving (OWI or DUI), it will be the first time that they have seen the inside of a jail cell. This experience alone will be traumatic and stressful. Upon being released from jail, the person will be given certain documents which include: ticket, temporary license, bond receipt and data-master printout with breath test result (usually a pink form). A person may need to get his or her vehicle out of impound unless there is a hold on the vehicle because of an accident or subject to forfeiture. A person charged with drunk driving should contact an attorney after taking care of immediate needs such as going home, getting some rest and having something to eat.

Our attorneys are involved with drunk driving cases in Macomb County just about every day. This means that we are either attending a court hearing in one or more district courts, talking to someone on the phone or meeting with a new client at our office. We are often able to make predictions about the outcome of drunk driving cases in Macomb County as well as other jurisdictions where we actively practice including Oakland County, Wayne County and the Grosse Pointe Courts.

Here are just a few questions that we ask when we get a new drunk driving phone call:

1. Where was the arrest (Clinton Township, Warren, Sterling Heights, Grosse Pointe, Troy)?
2. Who was the arresting agency (Michigan State Police, Macomb County Sherriff Department, Roseville Police Department)?
3. Why did the police stop the vehicle (speeding, weaving, accident, defective equipment)?
4. What was the data-master or chemical test result?
5. If the person refused the data-master breath test, did the police get a search warrant for blood?
6. Were any other passengers (possible witnesses) in the vehicle?
7. The number of drinks consumed and the time frame that they were consumed (7 drinks in 3 hours)?
8. When did the person stop drinking before operating a vehicle (quit drinking at 2:00 a.m., left the bar at 3:00 a.m., stopped by police at 3:30 a.m)?

There are other concerns, questions and issues which we address in the early stage of a drunk driving case including: whether the vehicle is being seized or forfeited, whether the person has a prior criminal record or drunk driving convictions, whether the person has a substance abuse problem or whether their was an accident involving damage to property or a personal injury.

In part 2, I will discuss the Court process for first offense drunk driving cases .

Part 2: The Court Process: First Offense Drunk Driving Cases In Macomb County, Michigan

September 7, 2011,

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Most drunk driving (DUI or OWI) cases in Macomb County are resolved without trial. The vast majority of first offense drunk driving (DUI or OWI) cases can be negotiated to the lower offense, such as operating while impaired, unless there are policy reasons which prohibit the prosecuting attorney from plea bargaining.

Our attorneys will be able to review the police reports and discuss various options with our clients such as trial and deviation requests for charge reductions. When a client is charged with a high blood alcohol drunk driving for obtaining a chemical test result of .17% or more (High BAC or Super Drunk), is involved in an accident or has a prior record involving substance abuse, there are legal maneauvers which we will explore to get the case under control.

Court Process and Possible Sentence Conditions for First Offense Drunk Driving (DUI or OWI)

1. Arraignment: You are required to appear unless advised by your attorney that arraignment is waived. At arraignment, the court will advise you of the charges, set your next court date and impose bond conditions which may include random alcohol testing or alcohol monitoring.

2. Pretrial Conference: For misdemeanor charges, a pretrial conference is scheduled and a plea bargain may be negotiated or your case set for trial.

3. Substance Abuse Evaluation: You will be interviewed regarding your substance abuse history and a report will be prepared and provided to the Judge at the time of sentencing.

4. Sentence: The following possible penalties can be imposed by the Court at sentencing:
-Fines and Costs: $800.00 - $1,500.00 (due at the time of sentencing)
-Police/municipal response costs may be due to the city or township
-Maximum Probation Term: Up to 2 years for misdemeanor (reporting or non-reporting)
-Substance abuse counseling, random testing for drugs and alcohol
-Vehicle immobilization, vehicle forfeiture
-Community Service
-Up to 93 days in Jail for OWI or Impaired Driving, Up to 180 days for Super Drunk

In general, the District Courts in Macomb County do not impose jail time for first offenders convicted of a drinking and driving offense. In many cases, our firm has been able to advocate for non-reporting probation. If there is a probation violation, the Court can impose any remaining jail time for a maximum of 93 days for OWI or Impaired or 180 days for Super Drunk. A probation violation can occur if a person receives a new criminal charge, fails to attend counseling or fails a random test.

Mandatory State of Michigan Sanctions for First Offense Drunk Driving

Super Drunk (High BAC .17% or more): License Action: 45 days suspended, 320 days restricted with ignition interlock device, $2,000.00 driver's responsibility fee, 6 points.

Operate While Intoxicated (OWI or DUI): License Action: 30 days suspended, 150 days restricted, $2,000.00 driver's responsibility fee, 6 points.

Impaired Driving (OWVI): License Action: 90 days restricted, $1,000.00 driver's responsibility fee, 4 points.

License Restrictions, Limitations: When one's license is restricted, driving is limited as follows:

-To and from residence and employment, and during employment;
-To and from alcohol or drug education or treatment program;
-To and from regularly scheduled treatment for serious medical condition;
-To and from probation, community service and school.


Other Important Information:

-Driver License revoked minimum of 1 year for 2 drinking and driving offenses within 7 years or 3 offenses within 10 years.
-A person may be charged with a felony for 3 lifetime drinking and driving offenses..
-If you refused the chemical test (implied consent refusal), you must file for a hearing or your license will be suspended for 1 year! You have limited rights to appeal a suspension based upon implied consent refusals.
-If your BAC is .17% or greater, an OWI can be amended to Super Drunk prior to final disposition or plea.