November 2012 Archives

Plea Bargain 101 - Frequently Asked Questions

November 23, 2012,

Court-Gavel.jpg What is a plea bargain?

Simply stated, a plea is where a finding of guilt is made through an admission rather than by a judge or jury. Usually this means that in exchange for dismissed charges, reduced charges, a deferral, or for an offer of leniency the defendant explains the crime that they committed to the judge. When a plea is made the defendant gives up his or her right to have a trial and all the rights they would have at trial. This expedites the criminal justice process because it skips the trial portion and the case is fast-tracked for sentencing after the defendant admits to the charged conduct. It is a 'bargain' because the defendant must compromise by dispensing with his or her trial rights in exchange for a deal of some sort.

Why do plea bargains exist?

Plea bargains are commonplace in the United States and many would argue are necessary for the smooth operation of our justice system. Some 90% of cases are worked out through plea bargains. In addition to (most the time) benefiting defendants, they benefit the court and prosecution because trials are also costly and arduous for them. With most courts having full dockets, the system would come to a crawl if each case was resolved with a lengthy trial.

What are the most common types of plea bargains?

The most common type of plea arrangements are charge bargains, sentence bargains, sentence recommendations, and what is called a 'Cobbs plea.' A charge bargain, which is totally within the discretion of the prosecutor, is a bargain whereby a plea deal is offered in exchange for reduced or dismissed charges . Another type of plea is a sentence agreement. This is where the prosecutor conditions the plea on a term of sentence (for example the prosecutor may recommend a statute that keeps the charge off the defendant's record). In this type of plea the defendant retains the right to withdraw his plea if the judge does not abide by the prosecutor's agreement. Along the same vein are sentence recommendations. As we always explain to clients, recommendations are not binding on the judge. However, experience tells us that a judge will more likely than not go along with a prosecutor's endorsement. Lastly, there are 'Cobbs pleas', given their name after the case People v. Cobbs. This is a bargained for sentence with the judge, if the judge exceeds that preliminarily agreed upon sentence the plea may be withdrawn.

What helps for negotiating a favorable plea deal?

Many factors play into negotiating a favorable plea deal. Oftentimes considerations include the defendant's criminal history, personal background, and the prosecution's evidence. A clean or limited criminal record always helps at the negotiating table. Similarly, factors such as steady employment, education, and a positive family background tend to be viewed as a encouraging. In terms of the case's facts, presenting scant evidence of a crime or its elements to the prosecutor can also help in working an advantageous plea.

Doesn't a plea mean the crime will go on my record?

We get this question a lot - the answer is not necessarily. Frequently, the entire purpose of taking a plea deal is because it is conditioned on some type of deferral (or a deal whereby the charge will be removed from the client's record). These deferrals are discussed at length on our blog and website. For purposes of this blog it is sufficient to know the common deferrals are available for youthful offenders, domestic violence cases, drug cases, and MIPs . There is also a general deferral under the delayed sentence statute.

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Frequently Asked Question: What should I do if there is a warrant for my arrest?

November 20, 2012,

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This is another segment in a series of blogs which is dedicated to provide answers to frequently asked legal questions related to criminal law. If you are charged with a crime (felony or misdemeanor) you may be arrested on an outstanding warrant or receive a notice from the court or police directing you to personally surrender yourself to the police or to appear at court.

Our Macomb County criminal defense lawyers get asked this question all the time: What should I do if there is a warrant for my arrest?

A criminal arrest warrant is a written court order directing for the arrest and detention of a person. If you have received notice or have knowledge that there is a warrant for your arrest, it is just a matter of time before you will be arrested. When a warrant is issued (signed by the judge), the court may send a notice to the party (criminal defendant) for a hearing (arraignment) to address the issue of bond or detention of the defendant while a criminal case is pending. If someone receives a notice (from the court or police) regarding the existence of a warrant or has other knowledge of an active warrant, an attorney should be retained immediately to arrange a court date and have the warrant cancelled and bond determined. This is the best case scenario to resolve a warrant.

What if I am arrested on a warrant before I can call my lawyer?

If you are arrested based upon a warrant, you will not have the luxury of walking into a courtroom with a lawyer to answer the warrant. However, you can make matters worse by resisting the police or acting disorderly. Any resistance to the warrant may lead to additional criminal charges such as resisting and obstructing or fleeing and eluding. Our criminal defense attorneys give clients the following advice regarding possible arrest and dealing with law enforcement officers when faced with an arrest warrant:

NOTICE TO OUR CLIENTS:
In most cases, our law office will be notified or you will receive a notice if a warrant is issued against you. However, if you are arrested, please remain calm and cooperative with the police. Do not resist the police or act disorderly as this will only make matters worse and will lead to other criminal charges (resisting and obstructing). Our office advises that you to refrain from making any verbal or written statements to the police pursuant to your absolute right to remain silent. However, you should be prepared to provide identification. Following your arrest, you will be booked by the police and detained until your arraignment. Please have a family member contact our office if you are arrested and in all likelihood, we will visit you at jail and have an attorney present in the courtroom at the time of your arraignment. If you are brought before the court before you or a family member can contact our office, enter a plea of NOT GUILTY or STAND MUTE and let the judge know that you have retained a lawyer.

When should I hire a lawyer?

In some cases, you may not know about a criminal investigation that will lead to an arrest warrant. In most cases, the police will contact you during a criminal investigation in an attempt to get a confession or written statement. You should refrain from making any statements to the police. If you are contacted by the police, get the detective's or police officer's name and phone number. You should hire an attorney as soon as you have knowledge that there is a criminal investigation or if you believe that you have committed a crime and will be arrested. An attorney can contact the detective in charge of your case and ask to be notified when the warrant is issued. An attorney can also try to get some facts from the detective, and advance a defense strategy on behalf of the suspected party. In addition, an attorney can advise the detective that a client will not be making any statements and also address other pressing legal issues such as cooperation.

Link: Searches with warrants

We continue to provide public information to our readers - The Top 50 Most Frequently Charged Felonies in Michigan

November 13, 2012,

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The Michigan Bar Association releases crime data for the state from time to time. While researching cases, we came across an informative article written by the Michigan Bar Association regarding the most frequently charged felonies in the State of Michigan. This article can be viewed here: Top 50 Felonies Most Frequently Charged in Michigan. Based upon our experience, I would agree: this list is an accurate representation of the types of cases that our Macomb County criminal defense firm handles on a frequent basis.

Listed below is a selection of the top felonies charged in Michigan:
Possession of a Controlled Substance (heroin, cocaine, analogues)
• Possession of Marijuana (double penalty for second offense)
• Possession of methamphetamine (MDMA)
Possession with intent to deliver less than 50 grams (cocaine, narcotic)
• Possession of an Analogue controlled substance (pills)
• Possession with intent to deliver marijuana
• Manufacturer or delivery of less than 5 kilograms of marijuana
Drunk driving - 3rd offense
• Assault with Dangerous/Deadly Weapon ("Felonious Assault")
Assault with Intent to do Great Bodily Harm
• Resist/Obstruct a Police Officer & fleeing and eluding
Criminal Sexual Conduct - 1st, 2nd, 3rd and 4th Degree
• Keeping or Maintaining Drug House
Home Invasion
• Retail Fraud 1st Degree (Retail Fraud 2nd and 3rd Degree are misdemeanors)
• Larceny in a Building, Larceny from a Vehicle

Sometimes, the amount of loss will determine whether an offense is classified as a felony. Offenses, such as embezzlement and malicious destruction of property, are also on the list of top felonies when the value is $1,000.00 or greater. If the value of stolen property was less than $1,000.00, the offense would qualify as a misdemeanor.

Pursuant to the Michigan Sentencing Guidelines, felonies are further broken down into categories that determine the accompanying sentence. Punishment for each class is listed below:
• Class A - Life imprisonment
• Class B - Up to 20 years in prison
• Class C - Up to 15 years in prison
• Class D - Up to 10 years in prison
• Class E - Up to 5 years in prison
• Class F - Up to 4 years in prison
• Class G - Up to 2 years in prison
• Class H - Jail or other intermediate sanctions, such as fines

Note: A future blog will be dedicated to the Michigan Sentencing Guidelines.

Below, you will find connections to some of our blogs that are pertinent to felony cases:

All Felony-related Posts

Drug Possession

Felony Assault - Assault with a Deadly Weapon

Fleeing, Eluding and Obstructing the Police

First Degree Retail Fraud and Larceny

Third Drunk Driving Conviction

Child Abuse and Neglect

Felony Marijuana Possession

Continue reading "We continue to provide public information to our readers - The Top 50 Most Frequently Charged Felonies in Michigan" »

Illegal Searches Part 3: The Home

November 6, 2012,

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In this concluding portion of our series, we will discuss illegal searches as they relate to an individual's home. The following will serve as a paradigm for exploring police searches of the home;

Were the police allowed to enter the home?
Were the police allowed to search the home?
What was the scope of the permissible search within the hom
e?

The 4th Amendment provides the most safeguards to people in their homes. This stems from colonial America and is one of the foundational principles of the Bill of Rights. The 4th Amendment is premised on the idea that the home is one's castle and the government cannot enter it unless there is good reason to do so. Searches of the home can be separated into two categories, searches with and without warrants. A search absent a warrant is presumptively unreasonable. Without a warrant, police can only search somebody's home if there is exception to the warrant rule. However, this is one the situations in law where it is said the exception swallows the rule.

Searches WITH Warrants

This post will discuss two types of warrants, search warrants and arrest warrants. Arrest warrants will be discussed more as an exception to the warrant rule. A search warrant must be based on probable cause. Probable cause is presented via affidavit which must be signed by a judge or magistrate. Warrants can be defective on the grounds they are 'stale', or based on old information. They can further be defective on the grounds of scope and specificity. There needs to be some guidance as to what can be seized in order to limit officers' discretion. However, it can sometimes be difficult to challenge warrants because of the "good faith exception", often preventing the suppression of evidence where an improper warrant was relied on in good faith.

Searches WITHOUT Warrants

The major recognized exceptions to the warrant requirements are;

1) Consent (standing),
2) Exigent circumstances,
3) Emergency aid,
4) Search incident to arrest,
5) And plain view.

The police may enter a home where there is consent that is freely given. However, from a legal standpoint one must have standing (or the authority) to give consent. Somebody must be more than just a temporary guest in order to give the police permission to search somebody's home (an overnight guest, however, is sufficient). Where there is an immediate and pressing interest in preserving evidence, protecting police/the public, or preventing a suspect from escaping police can enter a home under the 'exigent circumstances' doctrine. Where there is a reasonable belief that somebody is in need of medical attention police may enter a dwelling. However, police must have more than 'speculation that someone inside side may have been injured' in order to justify a warrantless intrusion under this doctrine. As stated above, where an arrest warrant has issued police may enter a home to effectuate that arrest without a separate warrant. This does not allow the police to enter a third party's home and further they will be limited to only conducting a protective sweep within the home. Where a police officer is positioned somewhere he/she is legally allowed to be and can see evidence of a crime that officer can seize the item. The example that is often given is where police sees evidence of a crime through a window, absent an exception, they must still obtain a warrant to enter the home.

Continue reading "Illegal Searches Part 3: The Home" »