September 2012 Archives

Do criminal records ever completely vanish?

September 27, 2012,

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As an active criminal defense attorney in Macomb County, our firm is frequently asked whether a criminal record can be totally erased, disappear or vanish. Unfortunately, the answer is no.

The Michigan Law Enforcement Information Network (LEIN)

The moment an arrest occurs, or a warrant is issued by a court, a record is generated on the Michigan Law Enforcement Information Network (LEIN). Only criminal justice agencies or other authorized agencies (courts) are granted access to the LEIN. A law enforcement officer or court employee who abuses the system faces discipline. This link provides a list of entities who are authorized to utilize the LEIN system.

Public Access to Criminal Records (ICHAT)

Public access to criminal records is attainable on the internet via the Internet Criminal History Access Tool (ICHAT LINK). Criminal (public) records which are maintained by the Michigan State Police Criminal Justice Information Center are accessible by using the ICAT system. Criminal records include all felonies and misdemeanors that are punishable by over 93 days. An offense which is expunged or dismissed pursuant to HYTA (youthful offenders) or MCL 333.7411 (drug crimes) or MCL 769.4a (domestic violence / domestic assault) are not accessible to the public on ICHAT.

What happens to my record after my criminal charge is expunged or dismissed?

A record on the LEIN system will be suppressed if the criminal charge(s) are expunged or dismissed pursuant to HYTA, MCL 333.7411 or MCL 769.4a. Please notice that I used the word "suppressed", not "erased". When a record is suppressed, there is technically no public record of the case. However, a permanent "non-public" record is retained for law enforcement and court purposes. So when a case is expunged or dismissed pursuant to HYTA or MCL 333.7411 or MCL 769.4a, it is merely removed from the public view (not accessible on ICHAT).

What happens to my record if I am arrested but never charged with a criminal offense?

An arrest does not necessarily result in criminal charges. This is another problematic area which arises regarding criminal records. As I mentioned above, once an arrest occurs or a warrant is issued, the information is recorded into the LEIN. Even if the case never results in a criminal charge, it is almost impossible to have the information regarding the arrest or warrant erased! We know that this can cause huge misunderstandings for innocent parties. Even if a person is found not guilty at trial, a record is maintained of case which includes the charges against the individual. You may look up records of cases on the Macomb County Circuit Court website (use Internet Explorer).

Expungement of a Michigan Criminal Offense

If you have a criminal record, an attorney can determine if you are eligible for an expungement. The process to expunge a criminal offense is done by filing an "Application to Set Aside Conviction", strict compliance with other filing requirements and serving various government agencies and the victim of any crime. You may visit our website for more information about expungement of a Michigan criminal offense. If you are eligible for expungement, we will ask for you to obtain a set of fingerprints and a certified copy of your conviction to begin the process.

Federal Criminal Records, No Right to Expungement for Federal Crimes

Please be advised, there is no law that permits expungement for a federal crime other than minor drug offenses! The federal equivalent to an expungement is a "presidential pardon". The process to request a "presidential pardon" for a federal crime is arduous and is made through the United States Department of Justice. The President of the United States cannot pardon someone for a state crime.

Be proactive about your records!

More than ever, records are retained by private (non-government) organizations that sell information on the internet to anyone with a credit card. Literally 1000's of organizations collect information and sell it. Even if you are someone who is fortunate enough to get an offense expunged or dismissed, the information of an arrest may already be circulated to numerous entities that do not update the records or do anything to protect you.

If you are someone who has been involved in a criminal case, you should keep and retain copies of documents pertaining to the matter with your important permanent personal records. If at some point the case is dismissed or expunged, I also recommend that you obtain a copy of the dismissal or expungement from the court after the case is concluded. This may come in handy if an old arrest shows up on an internet website. The person who has obtained a copy of the final disposition will at least be able to produce proof of the dismissal which may negate the impact of inaccurate or incomplete record(s).

Click here for Michigan State Police links to obtain criminal records.


Can I be charged with a crime if only one person says I did it and there are no other witnesses or evidence (commonly called "he said/she said" cases)?

September 11, 2012,

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Can I be charged with a crime if only one person says I did it and there are no other witnesses or evidence (commonly called "he said/she said" cases)?

Answer: YES.

This is a question that we are frequently asked in cases involving relationships such as spouses, lovers, family members etc... These cases usually involve domestic violence, assault crimes, stalking, sex crimes or other personal crimes. The prosecutor may opt to charge a person with the alleged crime even though the suspect denies the allegations, there are no other witnesses and there is a complete lack of any other evidence (no injuries, no video, no confession).

Evidence Traps in He Said/She Said cases

The police agency assigned to cases such as this are often aggressive and will attempt to try and gain a confession from the accused to strengthen the case for prosecution. Sometimes in "he said/she said" cases, the alleged victim will call the suspect on the telephone with a script of loaded questions. A recording of the conversation can be used as evidence unless it is obtained illegally (Michigan Law-recording conversations). The phone call may be initiated with police encouragement before the suspect has knowledge that a police report has been filed!

As an active criminal defense lawyer in Macomb County, our firm has represented 1000's of clients charged with crimes. Sometimes, the only evidence is the statement by an angry party in a tumultuous relationship who is seeking attention, revenge or retaliation. Far too often, the police attempt to get the suspect to talk for the purpose of proving facts surrounding the alleged incident such as alcohol consumption or an argument. Remember, the police rarely call someone unless a police report alleging a crime is filed. For this reason, you should retain a lawyer if you are suspected or charged with a crime and refrain from talking to the police.

Links to some other frequently asked questions:

Can my case be dismissed if I wasn't advised of my Miranda rights?

Am I entitled to make a phone call if I am arrested?

Can I be charged with a crime if only one person says I did it and there are no other witnesses or evidence?

Do court appointed lawyers work for the police and prosecutor?

Continue reading "Can I be charged with a crime if only one person says I did it and there are no other witnesses or evidence (commonly called "he said/she said" cases)?" »

Do court appointed lawyers work for the police and prosecutor?

September 11, 2012,

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This blog is part of a series of blogs which explores some frequently asked criminal law questions.

I cannot believe how many times I have been asked this question: Do court appointed lawyers work for the police and prosecutor?

Answer: ABSOLUTELY NOT.

Pursuant to the 6th Amendment to the United States Constitution, a person who cannot afford an attorney may be entitled to an attorney appointed by the Court. The person requesting a Court appointed attorney may have to repay the cost for the attorney at a later date when he or she is able to do so.

Loyalty to the client is a vital element every attorney-client relationship. Therefore, criminal defense attorneys are prohibited by the Michigan Rules of Professional Conduct from acting for anyone other than the "client" even though the fees may be paid by another person or entity!

The applicable Michigan Rule of Professional Conduct provides: A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests.

Links to some other frequently asked questions:

Can my case be dismissed if I wasn't advised of my Miranda rights?

Am I entitled to make a phone call if I am arrested?

Can I be charged with a crime if only one person says I did it and there are no other witnesses or evidence?

Frequently Asked Criminal Law Questions: Can my case be dismissed if I wasn't advised of my Miranda Rights? Am I entitled to make a phone call if I am arrested?

September 6, 2012,

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There is a pattern of "frequently asked questions" in the field of criminal law. This blog is dedicated to answer a couple of those questions. This blog is not intended to provide a one-size-fits-all dissertation on the covered subjects but only a short synopsis with some other references linked-in for further research if you are interested. It is important to understand that entire law books have been published regarding the Bill of Rights (4th, 5th and 6th Amendments) and other particular legal issues such as "possession".

Remember: When the mistakes by the police add up, you may be entitled to a dismissal or suppression of evidence. Even minor mistakes may weaken the case to the extent that the charges are reduced.

Can my case be dismissed if I wasn't advised of my Miranda Rights?
The answer is usually NO with some exceptions.

This is probably the Number 1 question that we are asked when someone is charged with a crime. In 1966, the Supreme Court held that Miranda Warnings by the police are required to protect a person suspected of a crime pursuant to the Fifth Amendment right to avoid self-incrimination during police interrogation. When the police have other evidence to proceed against a person, the person's own statements may not be necessary. Therefore, should the person's own statements be excluded (based upon Miranda violations), the State may proceed against the person based upon other independent evidence and witnesses. We are often asked this question in the realm of drunk driving cases. Consider the following example:

Example: Assume that a person admits to drinking 4 beers after being stopped for a DUI. The accused may argue that the statements are not admissible because he wasn't given his Miranda warnings or because the statements were involuntary. Even if the attorney is able to have the statements suppressed (inadmissible at trial), the prosecutor may still proceed with other evidence such as the chemical test (BAC result from blood or breath), witnesses (police or civilians) who viewed the conduct of the accused, the accused's ability to perform Field Sobriety Tests (FST), etc.

Please be advised that when statements of the accused are suppressed, the Court may also suppress any other evidence derived from the inadmissible statements pursuant to the Fruit of the Poisonous Tree doctrine. When substantial evidence is suppressed (held inadmissible), the case may be dismissed or quashed.

Again, please remember that entire books and treatises have been written on the subject of Miranda Warnings (BOOK LINK).

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Do I have the right to make a phone call if I am arrested?
The answer is NO.

I do not know of any law in Michigan that allows someone the right to make a phone call upon being arrested. However, some police agencies have adopted regulations which allow an arrested person to make a phone call in the furtherance of Miranda Warnings which provide that a person has a right to remain silent and a right to an attorney

The right to make a phone call is a misnomer since it is actually not a right at all. It is merely a formality which allows an arrested party to call family members or an attorney. Should the police deny a person the right to call an attorney, there may be a legally arguable Constitutional issue. At the very least, we would argue to suppress any statements or information gathered from a suspect who is questioned after being denied a phone call (to his attorney) on the 5th and 6th Amendment grounds (self-incrimination and denial of right to counsel).

Take another look at the image which is posted at the top of this blog.
This scenario raises at least 14 questions which our criminal defense attorneys would ask:

1. Is the person/suspect in custody (not free to leave)?
2. Was the person/suspect validly arrested or detained?
3. Is the person/suspect under the influence of drugs or alcohol?
4. How long has the person/suspect been detained?
5. Was the person/suspect intimidated by the officer (armed and in uniform)?
6. Is the person/suspect suffering any mental condition?
7. Was the person/suspect coerced, threatened or intimidated?
8. Was the person/suspect denied nutrition and rest room facilities?
9. Did the person/suspect ask for an attorney during questioning which was denied?
10. Does the person/suspect take any medications which could impair his judgment?
11. Was the person/accused deprived of sleep or rest?
12. What is the age, intelligence level (IQ) of the person/suspect?
13. WAS THE PERSON ADVISED OF HIS MIRANDA RIGHTS?
14. WAS THE PERSON ALLOWED TO MAKE A PHONE CALL?

Violation of Miranda Rights or the ability to make a phone call can provide a basis for a motion to quash (dismiss) or suppress evidence. For this reason, every detail and fact is important when you talk to your lawyer.

Some excellent video references:

Ten Rules When Dealing With Police (Video)
Don't Talk to the Police (Video)
The Proper Way to Handle a Police Stop (Video)

If you have a question, please visit our website and send the question which we will attempt to answer and may even consider making it the subject of a future blog.

Links to some other frequently asked questions:

Can I be charged with a crime if only one person says I did it and there are no other witnesses or evidence?

Do court appointed lawyers work for the police and prosecutor?


Continue reading "Frequently Asked Criminal Law Questions: Can my case be dismissed if I wasn't advised of my Miranda Rights? Am I entitled to make a phone call if I am arrested?" »

DUI THIRD OFFENSE IN MICHIGAN: Felony Drunk Driving; Third Lifetime Offense Involving Drinking and Driving

September 4, 2012,

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Since 2007, the law in Michigan is that a person with three (3) or more drinking and driving offenses in his or her lifetime may be charged with a felony! All states have now adopted this law. In Michigan, it is commonly referred to as Heidi's Law. Prior to the passage of this law, a person could only be charged with felony drunk driving (also referred to as OWI, DUI, Operating While Intoxicated) if the prior drinking and driving convictions occurred within 10 years of the new arrest. Now, any offenses for drinking and driving in a person's lifetime are scored to enhance the charge to a felony including out-of-state convictions and convictions for impaired driving. However, in Michigan, only one (1) prior offense under Michigan's Zero Tolerance law (OWI by person u/21 with any BAC) counts. This blog will explore the penalties which can be imposed upon conviction for a Drunk Driving Third (Felony) and various defense strategies which we utilize to fight the case, reduce the charge or minimize the sentence.

THIRD LIFETIME DUI OFFENSE - FELONY DRUNK DRIVING PENALTIES

Fines: $500.00 to $5,000.00 fine, plus costs

Jail/Community Service: Imprisonment for 1 to 5 years, or, Probation with imprisonment in the county jail for not less than 30 days or more than 1 year and community service for not less than 60 days or more than 180 days. Not less than 48 hours of this imprisonment shall be served consecutively.

License Sanctions: License revoked minimum of 1 year for 2 offenses within 7 years or 3 within 10 years. A second revocation is for 5 years. After minimum period of revocation, a person must appear before the Driver License Appeal Division satisfy several requirements before a license will be granted.

Other: Destruction of License, Plate confiscation, Vehicle immobilization from 1 to 3 years, Possible vehicle forfeiture

Driver Responsibility Fee
: $1,000.00 per year for 2 years

Points: 6

Mandatory jail is required upon conviction for a Drunk Driving Third Offense. As you will read further in this post, there is a safety net which our attorneys have advocated when jail is combined with community service or there is a house arrest release program in the applicable jurisdiction.

PROVING DRUNK DRIVING

You may be shocked to know that to be convicted of drunk driving:

-You do not have to be drunk. You can be charged with drunk driving if you are legally drunk (BAC .08% or more, with the presence of certain drugs, in the opinion of the arresting officer of impairment or even after taking prescribed medications such as pain pills.

-The police do not have to witness you driving. Only probable cause to believe that you were operating the vehicle is sufficient.

-You may be stopped or pulled over even though you haven't violated any traffic law! A police officer may pull you over upon the opinion of the officer that you are operating a vehicle while impaired or intoxicated.

The elements of a drunk driving which the prosecutor must prove are:

1. Intoxication or Impairment by alcohol, drugs or marijuana. In Michigan "Operating Under The Influence" (OWI) means operating a motor vehicle while under the influence of alcohol and/or drugs to a degree that renders one unable to safely drive a vehicle. It is not necessary for one to be drunk to be arrested for or convicted of OWI in Michigan. Michigan OWI convictions can be obtained where a person operates a vehicle while under the influence of alcohol, or operates a vehicle with a blood alcohol level (BAL) or breath alcohol content (BAC) of .08 or greater

2. Operation of the vehicle or proof of operation (such as an accident, vehicle in a ditch or on the side of the road). The police do not have to witness the offender actually driving or operating the vehicle. In the cases researched, you can be charged and convicted with OWI if the police had probable cause to believe the accused was operating the vehicle.

3. A valid traffic stop. A traffic stop may be based upon a violation of any traffic law. Drivers are often stopped for straddling lane markers, weaving between lanes, driving at excessive or very slow speeds, braking erratically, obstructed vision, defective equipment, coming in close contact with objects or other vehicles, or while fixing a flat tire!

PLANNING A DEFESE STRATEGY STARTS AT THE FIRST CONSULTATION

Our goals are always the same with every criminal case that we handle: Avoid a conviction and avoid jail! The question in every drunk driving is the same: Can we beat the case? Based upon our experience, there is hope even if someone gets charged with a drunk driving third offense.

Since the judges are stuck with minimum sentence requirements for someone convicted of a drunk driving third offense (felony), it is important for a criminal defense lawyer to explore every legal option. Our inquiry starts out with immediately when we are retained. Aside from ordering the discovery (police reports, video, etc.), our firm obtains an extensive personal history from our client:

-Dates of prior drinking and driving convictions
-Prior criminal history (dates and offenses)
-Any habitual offender Issues for prior felony convictions
-Employment, family, education, achievements, community involvement
-Substance abuse treatment and Alcoholics Anonymous (AA)
-Compliance with bond conditions (alcohol monitoring, random testing)
-Relapse history (prior periods of abstinence)

In situations when an offender is charged with his or her third (felony) drunk driving, there may be an opportunity to fight for a misdemeanor. Our firm has negotiated the lower more favorable misdemeanor deal when various facts and circumstances are present. The following factors, among many others, may influence the outcome or sentence of a felony drunk driving:

-Is the offense a *true 3rd DUI offense (meaning the offender has only 2 prior DUI convictions)?
-Are any of the prior drinking & driving offenses used to support the felony more than 10 years old?
-Does the offender have a felony record?
-Does the pending offense involve an injury accident?
-Is the Blood Alcohol Content (BAC) is less than .20%?
-Has the offender engaged a substance abuse counselor and/or AA?
-Is the offender on probation for any other criminal matter?

*In Macomb County, our firm has advocated plea bargains to a misdemeanor if the offender is charged as a true third drunk driving offender. We have achieved this result in numerous cases; including for offenders with more than two (2) prior offenses in exceptional cases. Public policy, accidents involving injuries and directives by the County Prosecuting Attorney may have an impact on plea bargaining drunk driving cases.

We are proactive and will make recommendations to our clients after the first consultation. Within a reasonable time after being retained for a drunk driving third (felony) our attorneys set goals and can usually provide an educated prediction of the outcome based upon our experience.

POSSIBLE OUTCOMES FOR DRUNK DRIVING FELONY

Everyone likes to believe that they will win their drunk driving case at trial. This is not realistic since the vast majority of drunk driving offenses (as well as other criminal offenses) in Michigan result in a conviction based upon a plea bargain or verdict after a trial. However, our attorneys have handled drunk driving cases from every angle including:

-Trial which may result in a verdict of guilty or not guilty
-Motions to dismiss because of an illegal traffic stop
-Irregularities in the testing process or equipment
-Plea bargaining to a misdemeanor (achieved by our firm in numerous drunk driving cases)
-Negotiating the minimum sentence (30 days with community service)
-Negotiating to lessen sentence enhancement and habitual offender provisions
-Negotiating delayed jail sentence, house arrest (sobriety monitoring)

Rarely is a client willing to roll the dice at trial when we can secure a deal to have a drunk driving felony reduced to a misdemeanor which we have achieved in several cases. In a recent St. Clair County case, our client received a minimum sentence on a drunk driving felony (1 year probation and 30 days in jail). He was released from jail after servicing 24 days (6 days credit). He called and thanked us because other offenders were sentenced to much longer periods of incarceration followed by half-way-house residency upon release from jail.


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