December 2011 Archives

Operating While Intoxicated in Westland, What to Expect in the 18th District Court

December 14, 2011,

Westland District.jpgThe intention of this post is to give you a brief overview of what to expect if you are being charged with Operating While Intoxicated (OWI) arising out of the 18th District Court in the City of Westland. The 18th District Court is presided over by the Honorable Judges Sandra Ference Cicirelli and Mark A. McConnell. Based on our firm's experience, the 18th District Court will treat you fairly and your case will be handled efficiently. By treated "fairly", we mean that if you are a first offender whose OWI is reduced to the lower offense of Operating While Visibly Impaired (OWVI), the Court's sentence will be reasonable as I will explain. When I say that a first offense will be handled "efficiently", we mean that your case can be handled in 1 court appearance if it is resolved by way of plea bargaining under certain circumstances. However, if motions are filed or your case is scheduled for trial, there will be other necessary proceedings. This blog will focus on the vast majority of cases which are resolved by way of a plea bargain.

When charged with a crime, our firm will consider all of the evidence and make recommendations to our clients as to the best course of action. In reality, the vast majority of criminal offenses and drunk driving cases are resolved by means of plea bargaining. When representing a client charged with an OWI who does not have a good case for trial, our law firm typically has three goals;

-Get the charge reduced, typically to an "Operating While Visibly Impaired" (colloquially referred to as an "OWVI" or simply an "Impaired");

-Avoid jail time; and

-Minimize the length, terms and conditions of probation.

Discussed in other blog posts, most drunk driving cases do not make great cases for trial. Presumptive evidence of intoxication is established by a valid traffic stop, failed roadside sobriety tests, and Blood Alcohol Content (BAC) results of .08% or greater. For that reason, we usually fight to secure the lesser charge of Impaired Driving and seek recommendations from the prosecuting authority for sentence leniency. The merits of the Impaired Driving charge have also been discussed at length in our previous blog posts. Generally, an OWI which is reduced to OWVI is less points, saves our clients $1,000.00 in driver responsibility fees, involves a shorter period of action against one's license and does not involve any mandatory period of license suspension before issuance of a restricted license.

In most other courts, the process to resolve a drinking and driving offense requires at least 3 court appearances which include pretrial conference, substance abuse assessment and sentencing. However, the 18th District Court will endeavor to handle the entire case on the same date. It is our experience that getting to the 18th District Court by 8:00 a.m., knowing our Client's case and being prepared to advocate with the prosecutor are essential for a case to be resolved in the efficient manner which I have described compared to cases which languish for several months and require multiple stressful Court appearances.

At the time of sentencing, the Court will determine the extent and terms of probation along with fines and costs. The maximum term of probation for a first offense Impaired Driving is 2 years. In our experience, first time offenders for Impaired Driving should expect 12 months probation in the 18th District Court. Probation may be reporting (to a probation officer) or non-reporting. Non-reporting probation is preferred and is less intrusive upon one's daily routine. The 18th District Court will normally allow time to pay fines and costs. However, in a recent case handled by our firm, the Court said that our client's reporting probation will be converted to non-reporting probation after payment of fines and costs.


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December at Our Law Office and Holiday Crimes: Retail Fraud, Drunk Driving and Domestic Violence

December 6, 2011,

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Well, December has never been a month where business is slow at the shopping malls or at our law firm. December is the month when people get out of their routine. What I mean is that many tend to drink more, spend more money, drive more frequently and have greater periods of time with family members. Existing drinking problems, substance abuse, depression, strained relationships and financial troubles are put to the test during the holiday season. All of these situations can lead to criminal problems such as drunk driving, retail fraud and domestic violence.

As a Macomb County criminal defense lawyer, I consider myself sensitive to the needs of our clients during the holidays. What can you say when someone gets charged with retail fraud (shoplifting) who has no employment or suffers from depression? While I do not condone criminal activity, I am just saying that people are people and I do not sit in judgment of those who are less fortunate or troubled. I have found that the Judges in Macomb County to be reasonable with those who have no criminal record but find themselves charged with retail fraud under various circumstances including financial hardship. In these cases, our attorneys are able to negotiate a plea bargain to have the case dismissed after a period of probation and conditions which may mean attending an economic crime class. This is true for clients that we have represented throughout Macomb County.

The holiday season is also a time of parties and gatherings which invariably involve alcohol. I have represented my share of teatotallers and social drinkers who have one too many at a holiday house party and wind up being charged with drunk driving. This can happen to anyone who has a few drinks and gets stopped by the police a few blocks from home. I cannot count the number of clients that I have represented for drunk driving who are pulled over in their own subdivision or even while pulling up in their own driveway. In Michigan, a person is considered legally drunk if his blood alcohol content (BAC) is .08% or greater regardless as to whether or not the person was actually intoxicated. To make matters worse, Michigan has passed a super drunk law making it a more serious crime if the blood alcohol content is .17% or greater. Sobriety is not a defense to a charge of Operating While Intoxicated (OWI or DUI) or Super Drunk. Various drink/weight index charts provide an approximate blood alcohol content (BAC) which can be helpful for anyone considering a few drinks before driving. The best advice that I can give is to have NONE FOR THE ROAD since the BAC charts are only an approximation and do not take individual tolerances into consideration; Even one drink can create misunderstandings in the eyes of the law if an accident occurs and someone is injured or dies.

Lastly, our attorneys see a fair amount of domestic violence cases during the holidays. Again, too much togetherness with the family and awkward social gatherings may be outside of the comfort zone. Emotions run high and money worries, existing depression along with substance abuse can come full circle which sometimes leads to arguing, fighting or domestic violence. A person who is charged with domestic violence may be removed from the home (no-contact order) and be unable to spend the holidays with family. The need for family counseling and a lawyer could not be greater under these circumstances. Our attorneys will try to schedule an expedited hearing with the Court to remove the no-contact order whenever possible. Removal of the no-contact order will require the consent of the spouse. In addition, our firm has had numerous domestic violence charges dismissed under a special provision of Michigan's domestic violence laws.

All of the above situations can occur anytime of the year. At our firm, we never pass judgment on anyone and welcome the opportunity to provide guidance to our clients faced with personal and legal problems.

DUI - DRUGS: Operating While Under the Influence, Intoxicated or Impaired Due to Analogue Drugs: Same Penalties as Drunk Driving

December 5, 2011,

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Driving under the influence of alcohol can be ascertained by measuring a person's blood alcohol content (BAC). If a person's BAC is .08% or greater, he or she is considered to be "per se" or legally intoxicated. If the BAC is .17% or greater, the person may be charged as a "super drunk" pursuant to Michigan law making it a more severe crime for having a high blood alcohol content.

On the other hand, driving under the influence of prescribed drugs is not a per se or strict liability offense and must be proven by the testimony of the police officer regarding the conduct of the accused. In this regard, the police will obtain a blood sample to determine the presence and level of analogue(s) and/or other substances. In many cases, the person may have mixed the prescribed analogue drugs with one or more alcoholic beverages or marijuana. In addition, the police will assess a driver's ability to perform field sobriety tests (FST) which are designed to test a driver's balance and motor skills. Police may ask a driver to perform tasks such as walking heel-to-toe in a straight line, standing on one leg, or reciting the alphabet backwards.

A valid prescription is not a defense for someone who operates a vehicle while impaired or under the influence of analogue drugs (OUID). However, a prescription coupled with evidence of a person's sober conduct and driving ability can be presented as a defense.

A person convicted of operating a vehicle while intoxicated due to analogues (OUID) or alcohol (OWI) faces the same penalties under Michigan laws. For a first offense of OUID, the maximum penalties are:

  • 6 Points
  • License suspense for 180 days with restrictions after 30 days
  • Driver Responsibility Fee of $1,000.00 per year for 2 years
  • Maximum Fine of $500.00, plus court costs
  • Probation for up to 2 years
  • Up to 360 hours of community service
  • Vehicle Immobilization for up to 180 days
  • Up to 93 days in Jail
  • Mandatory Substance Abuse Evaluation
  • Possible Substance Abuse Counseling and Random Testing

Defending Operating While Intoxicated - Analogues, Prescribed Medications

There may be legal grounds for a dismissal or reduction to careless driving on the basis that the medications were taken as prescribed and did not cause the individual to be impaired or under the influence. A person who has taken medications as prescribed may defend the charge on the basis that the medications did not diminish his or her ability to operate a motor vehicle. In such cases, an aggressive defense attorney will obtain the police reports, video of the traffic stop and gather witness statements of those that could testify as to the behavior and sobriety of the accused during the time frame prior to the traffic stop. In addition, A charge for operating under the influence of drugs (OUID) may be plea bargained to the lower charge of operating while impaired which involves lesser penalties.

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Illegal Possession of Analogue Drugs In Michigan

December 5, 2011,

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Analogue drugs are also known as designer drugs and are illegal in Michigan without a valid prescription. According the United States Code (21 USC 802) a controlled substance "analogue" means a substance which is substantially similar to the chemical structure of a schedule 1 or 2 controlled substance and has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II. Click here for an extensive list of analogue drugs.

Defenses to Drug Crimes: Lack of Possession or Knowledge

The issue of "possession" is often contested by a person charged with a drug crime. A person need not have actual physical possession of a controlled substance to be guilty of possessing it. An experienced drug crime lawyer can advise a person charged with a drug crime as to possible defenses which may include:

  • Illegal Search and Seizure
  • Mere Presence at a place where drugs are present
  • Lack of Knowledge
  • Innocent Spouse or Passenger in Vehicle

Possession of Analogues: Possible Dismissal Pursuant to Michigan Law

In Michigan, possession of analogues is a felony which can be punished by up to 2 years in prison and a fine of up to $2,000.00, or both. Our firm represents a fair share of clients who are arrested or searched where the police find analogues, such as Vicodin, in their possession at the time of arrest. Surprising, many of these clients can verify a past medical condition or prior prescription necessitating medication such as pain pills. However, a person may continue to take the medication long after the medical condition is resolved. Unless a current prescription is available, the police will charge the person with illegal possession of analogues. While old medical records and prescriptions are useful in our negotiations, in most cases they will not support an outright dismissal. In addition, it is not a defense to produce a third person's prescription since you only have the right to possess your own medications!

Fortunately, a person charged with possession of analogues in Macomb County, as well as all Michigan district and circuit courts, may be eligible to have the case resolved pursuant to MCL 333.7411. This provision, also known as 7411, enables a first time drug offender to have an offense deferred and dismissed upon completion of probation. An experienced criminal defense attorney will know how to negotiate a 7411 plea bargain with the prosecutor and assertively advocate for the plea bargain to be accepted by the Court. A person with a prior drug crime or who has used in 7411 is not eligible for this deal.

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